Qualified Immunity Is About More Than Police or Excessive Force
A police officer who makes a split-second decision to use force against a suspect. A social worker who seizes a child without a warrant. A public university dean who restricts a student group’s disfavored speech. A mayor who weaponizes local government to intimidate a political opponent. All of these government officials are eligible for protection under the one-size-fits-all doctrine of qualified immunity.
The Supreme Court intended for qualified immunity to protect government officials when they make reasonable mistakes, especially in tense or dangerous situations requiring quick thinking. And indeed, friends and foes of qualified immunity alike tend to assume it primarily protects police accused of excessive force, the most plausible type of case in which a government official might make a difficult decision under pressure. It is perhaps for this reason that, as detailed above, most prior research on qualified immunity focuses on cases with law enforcement defendants or excessive force claims.
All told, more than a quarter of the appeals we studied involved non-police, non-prison defendants—and more than a fifth involved only such defendants. As noted in the results, mayors and city managers, university and school officials, prosecutors and judges, and child protective services workers were most common. Nevertheless, any government worker can invoke qualified immunity, and we saw state ethics commissioners, office of historic preservation officials, state legislators, zoning board members, horse racing commissioners, and septic system regulators listed as defendants in our hand-coded appeals. The job responsibilities of these government officials could hardly be more diverse. Yet qualified immunity applies to them all in the same way, whether they violated a person’s rights during a chaotic confrontation in a dark alley or through calm deliberations in a comfortable office.
The constitutional violations claimed in qualified immunity appeals are similarly diverse. These include excessive force, false arrests, and illegal searches—policing-related violations that are perhaps more likely to involve heat-of-the-moment decisions. However, they also include alleged violations that seem less likely to involve such decisions, like procedural due process and First Amendment violations—the third largest category after excessive force and false arrests. This is not to say that First Amendment violations, for instance, never involve split-second decisions. But then, excessive force and other policing-related violations are sometimes premeditated. Our data are not granular enough to tell for every appeal whether split-second decisions were involved, but the broad categories are suggestive.
Indeed, among a representative sample of 125 First Amendment appeals, we can tell that a sizable share likely do not involve a split-second decision. 1
As shown in Figure 14, plaintiffs in these appeals most often alleged they were victims of premeditated abuse by government officials in retaliation for protected First Amendment activity. Premeditated retaliation was the most common First Amendment violation alleged, appearing in roughly 59% of the appeals in our random sample. 2
In the remaining appeals, plaintiffs most often alleged that government officials directly restricted their speech or religious activity—for example, by arresting plaintiffs during a protest. 3
Figure 14: Most First Amendment Appeals Allege Premeditated Retaliation for Protected Activity
Note: Data are based on a random sample of hand-coded appeals with First Amendment claims. For a claim to be categorized as premeditated retaliation, there had to be a delay between the protected activity and the alleged retaliatory action.
Digging deeper into premeditated retaliation claims, we found little reason to believe these allegations were less egregious than they appear at first blush. The largest share—nearly half—related to employment (see Figure 15). In these appeals, government workers alleged retaliation from their superiors for many protected First Amendment activities, such as political association and speech, writing a book as a private citizen, union activity, speaking on matters of public concern, or even declining to speak on matters of public concern. Interestingly, police officers were the plaintiffs in over a third of these appeals, illustrating how qualified immunity can harm those it is often thought to protect, especially the rank and file.
The second largest share of premeditated retaliation claims, accounting for nearly a third, involved the direct targeting of private citizens over their protected First Amendment activity. In roughly three-quarters of these appeals, citizens alleged retaliation for speech that the Supreme Court has said is “at the very center of the constitutionally protected area of free discussion”—criticism of a government official, usually in a city council meeting or other public forum. 4
Police chiefs and police officers were the most common defendants, though by no means the only ones. University administrators and mayors were also frequent defendants.
Figure 15: Premeditated Retaliation Appeals Are Mostly Alleged by Government Employees and Private Citizens
Thus, our data show that, in practice, qualified immunity—a doctrine created to protect government officials when they make reasonable mistakes, especially in the heat of the moment—often shields government officials accused of weaponizing the power of the state to silence critics or shut down other speech they dislike. This perverse reality prompted Justice Clarence Thomas to ask, “Why should [government administrators], who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?” 5
He might have asked why government officials with time to consider their decisions sometimes receive greater protection than police officers tasked with making split-second decisions. This is because our data suggest alleged First Amendment violations get more protection than alleged excessive force violations. Government defendants challenging a district court loss fully prevailed in 34% of appeals with First Amendment claims but in only 23% of appeals with excessive force claims. 6
While we cannot definitively attribute the difference to qualified immunity, it is suggestive—and concerning. 7
Our data show that, in practice, qualified immunity often shields government officials accused of weaponizing the power of the state to silence critics or shut down other speech they dislike.
A possible explanation for the difference is that First Amendment claims are more factually diverse than excessive force claims. If true, this would make it harder for plaintiffs bringing First Amendment claims to pinpoint a prior case with sufficiently similar facts and thus to overcome qualified immunity.
Take the case of Institute for Justice client Anthony Novak. Anthony created a Facebook page poking fun at the police in his hometown of Parma, Ohio. Modeled after the police department’s real page, it had the same name, cover photo, and profile picture but displayed the slogan “We no crime,” a parody of the department’s real slogan, “We know crime.” During the 12 hours the page was online, Anthony published six obviously parodic posts.
The Parma Police Department was not amused. Nearly a month after Anthony took the page down, police officers obtained a warrant for his arrest, searched his apartment, seized his electronics, and charged him with a felony under a state law that criminalizes using a computer to disrupt police operations. Anthony spent four days in jail before making bail. His case went to trial, and a jury found him not guilty. 8
What happened to Anthony was obviously retaliation for his parody and therefore unconstitutional. Nevertheless, the 6th Circuit, after first denying the police qualified immunity, later in the case reversed itself and granted it. 9
Why? Because, although his parodic posts were protected speech, Anthony had also taken steps to prevent others from spoiling the joke, deleting comments calling the page a fake and copying a notice from the police about the page. And, the second time it heard the case, the 6th Circuit held that Anthony had “not identified a case that clearly establishes deleting comments or copying the official warning is protected speech.” 10
Not only did qualified immunity give the police officers who retaliated against Anthony two bites at the apple, but the second bite succeeded because the court defined the right so narrowly as to make it impossible to find a prior case on point.
None of this is to say that alleged First Amendment violations, premeditated or otherwise, are the only kinds of suits that qualified immunity wrongfully excludes, much less that allegations of excessive force deserve less consideration by courts. It is merely to point out how frequently qualified immunity protects conduct far beyond the kinds of cases used to justify the doctrine.