Most people know instinctively when the police have violated their rights.
New Mexico motorist and car enthusiast Mario Rosales did not need a law degree to understand that an off-duty Chaves County Sheriff’s Office deputy broke the law by following him home and holding him at gunpoint in 2018 simply because Rosales had passed the deputy on the road. Single mother Shaniz West did not need legal training to recognize that a SWAT team crossed a line in 2014 by destroying her home with tear gas grenades in Caldwell, Idaho. And property owners Micah Jessop and Brittan Ashjian did not need expert advice to know that officers trampled the Constitution in 2013 by seizing more than $200,000 in cash and rare coins from them and keeping the property for themselves in Fresno, California.
Yet when each of these civil rights victims sued for damages, they learned that the judicial system cares little about common sense or intuition when weighing constitutional claims against government employees. Instead, courts rely on a judge-made doctrine called “qualified immunity.”
To sue anyone on the public payroll, citizens must prove that a government employee’s behavior was “clearly established” as unconstitutional at the time of the violation. That means the police and other government workers get a free pass unless the target of their abuse can point to a prior case in the same jurisdiction involving the same kind of conduct.
The doctrine creates a moving target as case law grows. Not even the police know what is clearly established at a given time — unless they are going home from work and reading the latest court opinions. Yet officers routinely claim qualified immunity anyway, shifting the burden of proof on to their accusers.
Government employees have used qualified immunity over the years to escape consequences for many indefensible actions, including putting a 14-year-old psychiatric patient into solitary pretrial confinement for more than one month; recklessly shooting at a dog right next to children, injuring a 10-year-old boy lying on the ground; and pointing a Taser at a mother while holding her 12- and 14-year-old children at gunpoint when they were walking home from their grandparents’ house.
Because victims of government misconduct have no control over prior litigation, overcoming qualified immunity requires a degree of luck. The first person abused in a particular manner might lose a civil lawsuit simply because no previous case fits the fact pattern or, worse yet, a previous case fits the fact pattern but the court decided not to say whether the conduct was unconstitutional, thus preventing “clear establishment” of the law.
Some judges demand almost an exact match to overcome the hurdle. The 5th U.S. Circuit Court of Appeals held that a Texas prison guard was entitled to qualified immunity when he shot an inmate in the face with pepper spray for no reason, even though the court previously had condemned punching and shocking defenseless inmates.
Meanwhile, the 6th U.S. Circuit Court of Appeals granted qualified immunity to officers who sicced a well-trained dog on a surrendering man who was sitting with his hands up, even though the court previously ruled that it was unconstitutional to release a poorly trained dog on nonfleeing suspects.
Location also makes a difference. The United States has 13 federal circuits, and what is clearly established in one place might not be clearly established somewhere else.
Proving that certain behavior is unconstitutional can require a comprehensive knowledge of court history on government misconduct. Someone who has not read the entire law library might miss a relevant case and thus lose the opportunity to sue. Trusting your instincts, or relying on the plain text of the Bill of Rights, is not good enough.
To help people navigate the qualified immunity maze, our public interest law firm, the Institute for Justice, has developed a free interactive tool as part of a Constitutional GPA study. Working for nearly two years, a team of lawyers combed through thousands of cases across all 13 federal jurisdictions to find decisions identifying unconstitutional conduct. Users can click on the location where they live, answer a few questions, and see citations to cases that may help them overcome qualified immunity.
Such a tool should not be necessary. Holding government employees accountable when they violate the Constitution should not hinge on tracking down a relevant case that may or may not exist. As Justice Clarence Thomas has explained, there “likely is no basis” for such a requirement. Yet the U.S. Supreme Court made the research necessary when it invented qualified immunity in 1982.
Since then, citizens have had little power to hold public employees accountable. Rights are real only if they can be enforced, which cannot always happen because of qualified immunity.
A just society requires that citizens and public officials alike be treated equally under the law. But right now, public officials have an advantage over everyday citizens. The qualified immunity doctrine must end to restore accountability. Until then, the Constitutional GPA research tool is open and ready for use.
Marie Miller is an attorney, and Daryl James is a writer at the Institute for Justice in Arlington, Virginia.
