By Emma Andersson (ACLU) and Jay Schweikert (CATO)

Alexander Baxter was bitten by a police dog unleashed on him while he was sitting with his hands in the air, having surrendered to police. Last year, a federal appeals court held that Mr. Baxter cannot sue the police who perpetrated this unreasonable attack because of a rule called “qualified immunity.” Now, both the ACLU and the Cato Institute are calling on the Supreme Court to reconsider this rule.

As lawyers for the Cato Institute and the ACLU, we often hold different views about the law. And on the Supreme Court, Justices Sotomayor and Thomas are not the most common allies. But something that unites all four of us is our criticism of “qualified immunity”—a judicial doctrine that shields government officials from liability for their misconduct, even when they break the law.

After the Civil War, in order to stop state-sponsored and state-condoned violence against newly freed Black citizens, Congress passed a law allowing those whose constitutional rights have been violated to sue for damages.  But the Supreme Court then created a rule of “qualified immunity,” that lets government officials off the hook if the law was not “clearly established.

In other words, it is entirely possible—and quite common—for courts to hold that government agents did violate someone’s rights, but that the illegality of their conduct wasn’t sufficiently obvious for them to be held liable. And in practice, “clearly established law” is a very hard standard to meet. It generally requires civil rights plaintiffs to show not just a clear legal rule, but a prior case with “functionally identical” facts, as one federal court of appeals judge has explained. The practical effect is that public officials—especially members of law enforcement—routinely get away with unconstitutional misconduct, simply because no one else has committed that precise kind of misconduct before. Justice Sotomayor criticizes the doctrine for sending “an alarming signal to police and the public,” that officers “can shoot first and think later.” Justice Thomas questions qualified immunity because neither the text of our federal civil rights laws nor the historical common law provide for such immunity. Thomas believes qualified immunity is an exercise in “substitut[ing] our own policy preferences for the mandates of Congress.” 

Judges, scholars, and organizations across the ideological spectrum agree that qualified immunity weakens respect for the rule of law by widening the gap between rights and remedies and ensuring that many constitutional violations will go unredressed. The federal judges who have publicly criticized qualified immunity now include appointees of every single President since Carter, as well as one of the two remaining LBJ appointees. As Judge Willett, a Trump appointee to the federal appeals court based in New Orleans, has lamented, “To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”  And on the other end of the spectrum is Democratic Presidential candidate Julián Castro, whose police reform platform includes a commitment to “Reform and restrict” qualified immunity.

Encouraged by this developing consensus, the Cato Institute and the ACLU are working together to urge the Court to abolish or narrow qualified immunity and reopen the doors of federal courts to hearing cases about government officials’ abuses of power. When these abuses go unaddressed, government officials become less likely to respect our rights in the future, and the Constitution itself is eroded.

Earlier this year, Cato Institute filed an amicus brief asking the Court to reconsider qualified immunity in a case where the doctrine protected a social worker who strip searched a four-year-old Head Start student without a warrant and without the consent of her parents. In May, the Court denied the petition. In the next case up for consideration, the ACLU is asking the Court to reconsider qualified immunity in Mr. Baxter’s case, where it is protecting police who allowed their dog to attack an unarmed homeless Black man suspected of burglary after he surrendered by sitting on the ground and putting his arms in the air as the officers instructed. Mr. Baxter’s petition is supported by three amicus curiae briefs which all ask the Court to reconsider qualified immunity. These amicus briefs were filed by Cato Institute, prominent Legal Scholars, and Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public's Trust in Law Enforcement, and Promoting the Rule of Law.  (The brief in opposition and reply in support of the petition are available here.) If the Court is ready, Mr. Baxter may present the justices with their best opportunity yet to rethink qualified immunity because the facts of his case are so simple: man surrenders, cop unleashes dog, and cop gets away with it.

The organizations that support qualified immunity reform span the ideological spectrum and include: Alliance Defending Freedom, The American Association for Justice, Americans for Prosperity, The Cause of Action Institute, The Due Process Institute, Freedom Partners Chamber of Commerce, The Institute for Justice, The Law Enforcement Action Partnership, The Roderick & Solange MacArthur Justice Center, The National Association of Criminal Defense Lawyers, The National Police Accountability Project, Public Justice, Reason Foundation, and Second Amendment Foundation.

Qualified immunity subverts the rule of law, and has decimated the ability to vindicate our constitutional rights when government actors overstep. It is time for the Court to reconsider this rule and enable all of us to stand up for the Constitution.

Tags: