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  • Writer's pictureClark Neily

The Conservative Case against Qualified Immunity

AUGUST 25, 2021

Congressional Republicans have taken some puzzling positions over the past few years, one of which is their near‐​uniform opposition to reforming qualified immunity, a judge‐​made doctrine that routinely shields rights‐​violating police and other government officials from accountability for their misconduct. Notwithstanding Republicans’ partial policy makeover, their embrace of qualified immunity is a particularly odd stance for proponents of an ostensibly conservative ideology that espouses personal responsibility, limited government, and the proposition that judges should apply the law rather than making it up themselves. As explained below, qualified immunity is utterly antithetical to every one of those values. 1. Personal responsibility. A bedrock principle of conservative ideology is that people should be responsible for their own actions. Conservatives tend to be skeptical of efforts to attribute personal shortcomings and misbehavior to external factors such as poverty, schooling, lack of economic opportunity, or nebulous concepts like “structural racism”; instead, they embrace the idea that individuals can overcome those disadvantages and should be held accountable when they fail to do so. But somehow this commitment to accountability and personal responsibility goes out the window when the person in question is a police officer rather than a drug addict or welfare recipient. When it comes to cops and other government officials, conservatives—or at least Congressional Republicans—embrace a much different value system, one marked by indulgence, credulity, and endless excuse‐​making. Indeed, we have what can best be described as a near‐​zero‐​accountability policy for law enforcement, and the cornerstone of that policy is the judicially confected doctrine of qualified immunity. In a nutshell, qualified immunity is an affirmative defense that enables police and other government officials to get an otherwise meritorious civil‐​rights case dismissed even when there is no dispute that they violated somebody’s rights. But how can this possibly be, one might ask, when the statute enacted by Congress for the express purpose of protecting civil rights—colloquially referred to as Section 1983—specifically states that public officials “shall be liable” to person injured “for the deprivation of any right[]”? (Emphasis added.) The answer is that the Supreme Court essentially inserted two words into the text of Section 1983 so that victims of civil‐​rights violations may only seek redress in court if the particular right in question was “clearly established” at the time of the violation. Besides the innumerable individual injustices this rule engenders, it also ensures that police officers and other officials who have engaged in unambiguously wrongful behavior routinely escape accountability for the harms they cause to others. To take just one of the dozens of examples we have catalogued on Cato’s encyclopedic qualified‐​immunity website, Unlawful Shield, consider the Denver officers who spotted Levi Frasier recording them with a tablet while they were effecting a particularly brutal arrest for drug possession that entailed repeatedly punching the suspect in the face and slamming his pregnant girlfriend to the sidewalk. Despite having been specifically trained by their own department that “the public has the right to record them performing their official duties in public spaces,” the officers swarmed Frasier and insisted that he turn over his tablet so they could try (unsuccessfully, as it turns out) to ensure it did not contain a recording of the incident. When Frasier sued the city and the individual officers, the city moved to dismiss the suit on the grounds that it had trained its officers not to interfere with people’s First Amendment right to record them in public, while the officers moved to dismiss on the grounds that even though they had received that training, the right to record police was not yet “clearly established” in Denver because the relevant federal court of appeals had not addressed the issue. Incredibly, that same federal court—the Tenth U.S. Circuit Court of Appeals—embraced the officers’ argument and granted them qualified immunity despite the fact that they had ignored their training and engaged in behavior that every federal appellate court to address the issue has found to be a violation of the First Amendment. As I have argued here before, there is both a moral obligation to make restitution when we harm others through our own misconduct and a moral obligation to submit plausible disputes to the judgment of a neutral arbiter. But qualified immunity represents a get‐​out‐​of‐​responsibility‐​free card that it is both discreditable and immoral for officers who have been credibly accused of misconduct to play. Imagine there were a legal doctrine providing that left‐​handed doctors could never be held liable for medical malpractice. Would it be moral or immoral for a sleep‐​deprived surgeon who amputated the wrong limb to invoke that defense when sued by the patient for malpractice? Plainly, it would not just be immoral to do so, but utterly antithetical to conservatives’ stated commitment to personal responsibility and accountability. Still, for reasons that are not at all clear, those values fall by the wayside when the malefactor is a rogue cop instead of a negligent doctor or a drunk driver. 2. Limited government. Police, prosecutors, and other members of law enforcement are clothed with extraordinary powers and breathtakingly broad discretion. Police can (and routinely do) decide whether to turn a blind eye, give a warning, or make an arrest when they witness various infractions; prosecutors can (and routinely do) decide whether to drop or pursue charges, whether to make a plea offer and if so how favorable, and whether to pursue a harsh sentence or a lenient one following a conviction; and prison guards control every facet of a prisoner’s life, including whether to allow opportunities for employment or recreation, whether to impose shockingly brutal punishments like solitary confinement, and whether to put their charges in situations where their lives will be at great risk from other prisoners. Preventing government officials from exercising arbitrary power over the lives of citizens is arguably the sine qua non of the American founding, and it is difficult to imagine a more traditionally “conservative” political value than cabining the authority of government officials. But just like personal responsibility, that value essentially disappears in the context of providing civil remedies to victims of government misconduct. Part of the problem doubtless lies with the Supreme Court’s false assurance that there are other avenues by which police and prosecutors may be held accountable for abusing their authority. While this may be true in theory, it is utterly fanciful in practice. In reality, police are rarely prosecuted for criminal misconduct such as assault, battery, perjury, theft, and falsifying public records, and the reason for that is perfectly clear: the prosecutors responsible for deciding whether to pursue a criminal case have a massive conflict of interest when it comes to police, whom they work with closely and whom they depend on to bring them cases and to testify in those cases. Most internal “accountability” mechanisms (internal affairs, etc.) suffer from similar conflicts, and even citizen review boards, which are nominally independent, are often neutered by the very departments they are supposed to oversee. That leaves civil litigation as the only accountability mechanism that citizens can initiate unilaterally, pursue without the support or acquiescence of the very institutions alleged to have harmed them, and seek justice upon an at least marginally level playing field. But again, for reasons that remain inscrutable, the strength of conservatives’ commitment to limited government appears to depend on whether those exercising arbitrary power wear red coats or blue. 3. Judicial activism. Though the term has been grossly overused and abused, the term “judicial activism” does have a precise meaning, and it is when judges write their own policy preferences into law when those policies are not plausibly reflected in—or are in direct conflict with—the text of the applicable statute or constitutional provision. There is widespread agreement among scholars, policy experts, and even conservative judges and justices that qualified immunity does not represent a plausible reading of Section 1983 and that the Supreme Court’s invention of the “clearly established” requirement in the 1982 case Harlow v. Fitzgerald was a blatant act of judicial policymaking. This may well be the most inexplicable aspect of conservatives’ affinity for qualified immunity: It was literally invented out of whole cloth by the Supreme Court in a blatantly anti‐​democratic act of judicial policymaking that has empowered government actors at the expense of individual liberty and in denigration of constitutional rights such as free expression, free exercise of religion, and the right to keep and bear arms. Thus, even if conservatives thought such an accountability‐​squelching, government‐​enabling policy were a good idea in the abstract—which, as explained above, would be passingly strange given their stated priors—one might think that its blatantly activist origins would nevertheless give them pause. But no. Apparently some activist precedents are more equal—or at least more palatable to conservatives—than others. * * * A final point. While conservatives have no exclusive claim on verisimilitude, they do tend to pride themselves on the notion that they have a special reverence for truth and an unflinching commitment to embracing it as an ultimate value. If so, they might consider how qualified immunity has been serially misrepresented by its proponents and why they choose to defend an army of straw men instead of the actual doctrine itself. As it says in the Bible, “the truth shall make you free.”

Reprinted under Creative Commons license permission. The original article appears here at the CATO Institute.

Clark Neily is senior vice president for legal studies at the Cato Institute. His areas of interest include constitutional law, overcriminalization, coercive plea bargaining, police accountability, and gun rights. Before joining Cato in 2017, Neily was a senior attorney and constitutional litigator at the Institute for Justice and director of the Institute’s Center for Judicial Engagement.

Neily is an adjunct professor at George Mason’s Antonin Scalia School of Law, where he teaches constitutional litigation and public‐​interest law. He served as co‐​counsel in District of Columbia v. Heller, in which the Supreme Court held that the Second Amendment protects an individual’s right to own a gun. Neily is the author of Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. He also contributed a chapter to’s Visions of Liberty. Neily received a BA in Plan II (with concentrations in philosophy and Russian) from the University of Texas at Austin, and he received his law degree from the University of Texas, where he was chief articles editor of the Texas Law Review.

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