July 20, 2020 at 5:00 am ET
In the wake of national protests and accusations of police brutality sparked by the death of George Floyd, a controversial legal doctrine known as qualified immunity is receiving increased scrutiny. There is now tripartisan (Democrat, Republican and Libertarian) congressional support for reform, as critics on both the left and right argue that qualified immunity insulates law enforcement officers from the consequences of their actions while stripping citizens of the right to pursue justice through civil litigation.
But it is important to remember that qualified immunity does not just remove accountability for police officers — it removes accountability for virtually any government official performing discretionary functions. That means ending qualified immunity won’t just provide better incentives for law enforcement, but for powerful government administrators as well.
Qualified immunity is a judicially fabricated doctrine that absolves government officials of civil liability for constitutional rights violations unless it has already been “clearly established” that their behavior was unconstitutional. What does “clearly established” mean? As John Kramer of the Institute for Justice put it, “In practice, that means that government officials can only be held liable if a federal court of appeals or the U.S. Supreme Court has already held that someone violated the Constitution by engaging in precisely the same conduct under precisely the same circumstances.”
For example, whether a suspect was sitting with his hands up or laying down on the ground can make all the difference. As such, some of the most flagrant and unthinkable violations of suspects’ rights can go unvindicated, as many are novel and have yet to come before a court.
It is easy to see why qualified immunity is most often discussed in the context of law enforcement. This is the area where constitutional rights violations tend to be the most common and can sometimes be egregious and witnessed by the public. But police are not the only government officials who violate constitutional rights.
Regulators, administrators and other executive officials violate constitutional rights with alarming regularity as well. This happens at both the federal and state levels. For example, administrators at public schools and universities have a long history of flagrantly violating their students’ First Amendment rights by doing things like punishing them for wearing black armbands in support of an end to the Vietnam war or forcing them to say the Pledge of Allegiance even though it goes against their religious beliefs. Yet similar behavior continues to emerge time and time again to this day.
Why? Because, under qualified immunity, public administrators don’t really have a dog in the fight. Without personal liability, government officials have very little incentive to even think about whether their actions are constitutional or not, much less exercise restraint. In another example, Texas Medical Board officials searched a doctor’s files on one of his patients without a warrant or permission — a clear violation of the doctor’s Fourth Amendment rights that was nonetheless neglected because of qualified immunity.
From occupational licensing boards engaging in anti-competitive practices that keep low-income individuals from getting better jobs to government banking officials exercising undue influence to go after lawful conduct, the behavior of regulatory officials has gotten increasingly out of hand. Ending qualified immunity may not cover every scenario of regulatory abuse (just like it won’t fix all the issues plaguing law enforcement), but it would provide a much-needed additional check on the behavior of regulatory officials.
Instead of having to rely on internal institutional checks for protection, which have proven themselves insufficient time and time again, citizens would be able to vindicate their constitutional rights themselves through civil litigation. This may not be the end-all, be-all solution to constitutional rights violations, but it would greatly increase accountability across the board by holding government officials responsible for the consequences of their actions.
At least one state, Colorado, has passed legislation that ends qualified immunity as a defense to state constitutional claims, but it applies only to those who work in law enforcement. The Colorado law also inexplicably exempts the Colorado State Patrol. Exemptions like these greatly undermine many of the benefits that can come from ending qualified immunity outright.
The need for accountability and meaningful checks on the sometimes-unchecked behavior of our public officials may be most obvious in the context of law enforcement, but it is important in all areas of government.
Ending qualified immunity won’t be a silver bullet, but it will serve as a major step in the right direction. Without meaningful reform, we should expect to see more of the same: flagrant and egregious behavior going largely unpunished.
Patrick McLaughlin is a senior research fellow, and Trace Mitchell is a research associate, both with the Mercatus Center at George Mason University.
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