Published

Recalibrating Qualified Immunity: How Tanzin v. Tanvir, Taylor v. Riojas, and McCoy v. Alamu Signal the Supreme Court’s Discomfort with the Doctrine of Qualified Immunity

In December 2020, the United States Supreme Court issued its most important decision on qualified immunity since Harlow v. Fitzgerald, and the issue in the case did not even involve the doctrine. In the Court’s unanimous opinion in Tanzin v. Tanvir, which dealt with the interpretation of the Religious Freedom Restoration Act, Justice Thomas explicitly distanced the Court from the very type of policy reasoning used to create qualified immunity. He also embraced the availability of damages claims against government officials as historically justified and often necessary to vindicate individual rights and to check the government’s power. The Court’s decision in Tanvir—alongside those in Taylor v. Riojas and McCoy v. Alamu—offers the strongest signal in decades that the Court is ready to recalibrate its qualified immunity jurisprudence. While it is not time to celebrate the demise of qualified immunity just yet, this Article will discuss how the Court’s disposition of those cases reveals the Court is reconsidering both the foundations and applications of qualified immunity.

Related Cases

Related Reports

Are Municipal Fines and Fees Tools of Stategraft?

Code Enforcement | Fines and Fees | Private Property

Are Municipal Fines and Fees Tools of Stategraft?

Most, if not all, incorporated communities in the United States have municipal and traffic codes that delineate the powers and duties of local governments or provide rules and regulations for public activity in the community.

Good Fences? Good Luck

4th Amendment Project | Open Fields Doctrine

Good Fences? Good Luck

Released in the Cato Institute’s Regulation magazine, IJ’s study “Good Fences? Good Luck” is the first study to put a number on the amount of private property vulnerable to warrantless searches by federal agents thanks to a…

Unaccountable

Immunity and Accountability

Unaccountable

The largest ever study of qualified immunity cases, Unaccountable finds the doctrine shields a wider array of officials and conduct than commonly thought while unacceptably burdening victims of government abuse and failing at its goals.

Data Downloads

Download our original final dataset. This is the unmodified data file that our predictive algorithms generated. original final dataset Download our cleaned final dataset. This is the final data file that…

Qualified Immunity Is a Poor Fit for Achieving Its Goals

The Supreme Court created qualified immunity to achieve two goals: (1) preserve government officials’ ability to perform their duties without fear, especially in split-second situations, and (2) protect them from harassment, distraction, and the threat…

Special Appeals, Special Advantages

A third way qualified immunity gives government defendants the upper hand is by granting them special rights to file interlocutory appeals immediately after a district court denies qualified immunity. These interim appeals can be filed…

Making Rights Unclear

Not only do circuits differ in how they implement qualified immunity, leading to variation in the amount of clearly established law across the country, but their rulings often lack precision and clarity. This makes it…

Arbitrarily Protecting Rights

A first way qualified immunity disadvantages plaintiffs is by making the protection of their rights depend on arbitrary factors. Instead of being the same nationwide, Americans’ ability to vindicate our constitutional rights depends on the…

Results: How many qualified immunity cases are there?

From 2010 through 2020, at least 5,526 cases before federal appellate courts raised qualified immunity on appeal, an average of about 500 cases a year. This does not include cases decided by state appellate courts,…

Executive Summary

Qualified immunity is perhaps America’s most controversial legal doctrine, erupting into the national consciousness during debate over police misconduct in 2020. Created by the U.S. Supreme Court four decades ago, the doctrine protects government officials…

Acknowledgments

The authors are deeply grateful to those who helped in ways large and small (mostly large). Lisa Knepper has served as a guiding light from the initial stages of this project, contributing in more ways…

About the Authors

Jason Tiezzi Jason Tiezzi is a data scientist who frequently collaborates with the Institute for Justice, including on projects such as Too Many Licenses? and the third editions of both License to Work and Policing…

Appendix E: First Amendment Codebook

Separate from the majority of our coding, we hand coded supplemental information about a random sample of qualified immunity opinions with First Amendment claims. Unlike with the bulk of our coding, we did not use…

Appendix D: Main Codebook

This appendix contains definitions for all the fields we hand coded and subsequently predicted with our algorithms. We provided it to all hand coders to use as a guide during the coding process. We have…

Appendix C: Key Data by Circuit Court

This appendix breaks out data about qualified immunity appeals for each federal court of appeals except the Federal Circuit, which generally does not hear qualified immunity cases, and the District of Columbia Circuit, which had…

Appendix A: Developing the Predictive Algorithms

In this appendix, we describe our process for developing the predictive algorithms, beginning with how we turned the opinions into data. We then describe how we built the algorithms. And we conclude with how we…

Conclusion

Judge Don Willett of the 5th Circuit summed up the problem with qualified immunity well: Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely…

Discussion: A Broad and Unnecessary Shield

In recent years, the once-obscure legal doctrine of qualified immunity has captured national attention. At the same time, as our data reveal, qualified immunity appeals have taken up a larger share of federal circuit court…

Results

« Previous: North Dakota Next: Raising Barriers, Not Quality »…

Methods

This study aims to describe the landscape of qualified immunity appeals in federal appellate courts. Specifically, we sought to answer these questions for the study period 2010 through 2020: How many federal appeals involve qualified…

The Controversy Over Qualified Immunity

Qualified immunity is perhaps America’s most controversial legal doctrine. Particularly in the wake of the national debate over police misconduct that erupted in 2020, commentators on all sides have focused on qualified immunity as it…

Introduction

Sylvia Gonzalez spent a day in jail because her political opponents wanted to teach the then-72-year-old grandmother and city councilwoman a lesson. The mayor and police chief of Castle Hills, Texas, used trumped-up charges to…

New Data Show Homemade Food for Sale is Incredibly Safe

Food Freedom

New Data Show Homemade Food for Sale is Incredibly Safe

Is buying homemade food safe? New data from the Institute for Justice (IJ) show the answer to that question is a resounding “yes.” IJ contacted the seven states with the broadest homemade food laws (California,…

See More