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The Cato Institute has been engaged in astrategic campaign to abolish qualified immunity for over two years now. In all that time, the closest Ive seen to an actual defense of the doctrine is a2018 law review article by Professors Aaron Nielson and Chris Walker called AQualified Defense of Qualified Immunity. As the title would suggest, this is hardly arobust defense, but rather alimited, measured argument that the legal case against qualified immunity isnt quite as strong as its critics suggest. The article doesnt really defend qualified immunity as apolicy matter, but argues primarily that the Supreme Court should simply leave any reforms to Congress. And that, Ihave said on several occasions, is the furthest that anyone has been willing to go to defend the doctrine.

Until now.

In the wake of George Floyds death, with both the Supreme Court and Congress considering whether to reform or abolish qualified immunity, the International Association of Chiefs of Police (IACP) has put out ashort IACP Statement on Qualified Immunity. In away, Im quite grateful that theyve done so by setting out such ahollow and misleading defense of the doctrine, the IACP has actually done atremendous service to our campaign, by revealing such how indefensible qualified immunity actually is. Lets go linebyline and explain in detail exactly whats wrong with each argument put forward in this statement:

What is qualified immunity? Qualified immunity provides police officers with protection from civil lawsuits so long as their conduct does not violate clearly established law or constitutional rights of which areasonable officer would have known.

This is, technically, acorrect summary of how the Supreme Court has characterized qualified immunity doctrine. Of course, another way of stating this point is that, even if police officers violate someones constitutional rights, they cannot be held liable unless the victim can show that the police violated clearly established law. And as Ihave discussed many times, clearly established law is an exacting standard, which generally requires wouldbe civil rights plaintiffs to identify not just aclear legal rule, but aprior case with functionally identical facts. Thus, whether avictim can get redress for their injuries turns not on whether their rights were violated, nor even on how serious the violation was, but rather on the happenstance of the fact patterns in prior cases in their jurisdiction.

Further, qualified immunity does not prevent individuals from recovering damages from police officers who knowingly violate an individuals constitutional rights.

This is ahighly misleading statement. The IACP here is presumably paraphrasing the Supreme Courts statement that qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. But whether adefendant knowingly violated the law in this context doesnt actually turn on the defendants personal knowledge or intent; rather, it turns entirely on the defendants presumed knowledge of clearly established law. In other words, courts will not find that adefendant knew they were violating someones constitutional rights unless the victim can show aprior case where someone elses rights were violated in anearly identical manner.

To illustrate this point concretely, here are some examples of police officers who received qualified immunity, and thus were not found to have knowingly violated someones rights:

So yes, the IACP is correct that, according to the Supreme Court, qualified immunity doesnt protect officers who knowingly violate peoples constitutional rights. But thats only because knowingly in this context is defined in reference to the Kafkaesque clearly established law standard.

Qualified immunity is an essential part of policing and American jurisprudence.

This statement is juststupendously wrong. As Professor Will Baude has demonstrated at length and as Cato has argued in many of our amicus briefs on the subject qualified immunity is completely untethered from both the text of Section 1983 and the commonlaw history against which that statute was passed. With limited exceptions, the baseline assumption at both the founding and throughout the nineteenth century was that public officials were strictly liable for unconstitutional misconduct. The Supreme Court itself rejected the application of a good faith defense to Section 1983in a1915 case called Myers v. Anderson. It wasnt until the Court effectively reversed Myers in 1967 (without acknowledging that they were doing so) that we saw anything like qualified immunity. And the clearly established law standard which is the key feature of modern qualified immunity wasnt invented until 1982.

So, on the one hand, we have an atextual legal rule conceived through raw judicial policymaking by the Supreme Court 38years ago. And on the other, we have Chief Justice Marshalls statement in Marbury v. Madison that: The government of the United States has been emphatically termed agovernment of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of avested legal right. Only one of these two contradictory principles is essential to American jurisprudence.

[Qualified immunity] allows police officers to respond to incidents without pause, make splitsecond decisions, and rely on the current state of the law in making those decisions.

This statement is either areckless mistake or an outright lie. It is true, of course, that police officers do have to make splitsecond decisions under dangerous, uncertain, and evolving conditions, and in novel circumstances that may have never arisen before. But that is exactly why our legal standards for determining whether aconstitutional violation occurred in the first place are highly deferential to onthespot police decisionmaking. In Graham v. Connor, the Supreme Court has made clear that the Fourth Amendments unreasonableness standard must allow[] for the fact that police officers are often forced to make splitsecond judgmentsin circumstances that are tense, uncertain, and rapidly evolving and cannot be judged with the 20/20 vision of hindsight. Qualified immunity is entirely unnecessary to ensure that police can make quick, splitsecond decisions, because that protection is already baked into our Fourth Amendment jurisprudence. If we eliminated qualified immunity tomorrow, that protection would remain untouched.

[Qualified immunity] is essential because it ensures officers that good faith actions, based on their understanding of the law at the time of the action, will not later be found to be unconstitutional.

Wrong again. If an officer is truly acting in good faith i.e., arresting someone with probable cause, or using an amount of force they reasonably believe is necessary under the circumstances then they have not broken the law at all. Just because police arrest someone who turns out to be innocent, or conduct asearch that turns up nothing, or use force that with the benefit of hindsight was unnecessary to effect an arrest, doesnt mean the police have violated anyones constitutional rights. The touchstone of most Fourth Amendment questions is reasonableness, and good faith policing decisions, basically by definition, are inherently reasonable. So again, qualified immunity is entirely unnecessary to protect officers in this regard, because good faith actions generally do not violate peoples rights in the first place.

The loss of [qualified immunity] would have aprofoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.

Consider for amoment what it would actually mean if the IACP were correct about this point. According to the IACP, it is absolutely essential that police officers be held to alower standard of accountability then ordinary citizens and all other professions. According to the IACP, most police officers are either so cowardly or so vicious that they will just stop doing their jobs if they are actually held accountable for violating peoples constitutional rights. I, apparently, have far greater faith in members of law enforcement than the IACP does, because Im quite confident that theyre wrong on this account, and that the vast majority of police would continue protecting the public even in the absence of qualified immunity. And if there are some individuals deterred from the profession by the prospect of actual accountability, well, that is afeature, not abug, of our civil rights laws.

Calls to limit, reduce, or eliminate qualified immunity do not represent aconstructive path forward. In fact, these efforts would most certainly have afarreaching, deleterious effect on the policing professions ability to serve and protect communities.

The conclusion to the IACPs statement is not just wrong, but entirely backwards. As we have explained time and time again in many of the Catoled crossideological amicus briefs, qualified immunity harms not only the victims of police misconduct, but the law enforcement community itself,by depriving officers of the public trust and credibility they need to do their jobs safely and effectively. Policing is made far more difficult and far more dangerous when law enforcement lacks cooperation and respect from the communities they police. And there is perhaps no quicker and more effective way to undermine policecommunity relations than by holding police to alower standard than everyone else and regularly excusing egregious misconduct on the basis of lawless technicalities.

For this reason, more thoughtful members of law enforcement like the Law Enforcement Action Partnership have actually joined Catos briefs urging the Court to reconsider qualified immunityand have put out their own policy recommendations calling for an end to the doctrine. In the words of Police Major Neill Franklin (Ret.):Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. Theres no better way to restore community trust. And we cannot do our jobs without trust. Just so.

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In conclusion, the IACPs defense of qualified immunity is, at best, misleading, counterproductive, and shortsighted, and at worst, full of outright misrepresentations. Nevertheless, Icant help but pity whatever poor soul was charged with the task of actually writing thisstatement its hard to defend the indefensible.

See original here:
Rebutting the IACP's Spurious Defense of Qualified Immunity - Cato Institute