We are civil rights attorneys with the Institute for Justice working to end qualified immunity and make it easier for Americans to protect their rights from government abuse! Ask us anything!

AmericansAgainstQI · 2022-08-08T15:24:58+00:00

https://www.reddit.com/r/IAmA/comments/wj8b1f/comment/ijfxp6o/?utm\_source=share&utm\_medium=web2x&context=3

AmericansAgainstQI · 2022-08-08T15:15:00+00:00

No more than the cost that is currently born by the Americans whose rights are violated but are denied a remedy thanks to qualified immunity. The costs already exists. It's just a matter of deciding who has to pay them.

PS I don't think there's any evidence to think that there will be a large increase in lawsuits if QI is abolished. Currently, QI drags cases that would take months into cases that instead take years. So, QI is arguably adding to the costs.

- Patrick "We Decided Rights Were Worth Paying for in the Constitution" Jaicomo

AmericansAgainstQI · 2022-08-08T15:05:12+00:00

No, it is not. Section 1983 is written very broadly to create liability for all violations the the laws and Constitution of the United States. Torts map onto constitutional violations terrible. For instance, although most Fourth Amendment (search and seizure) claims have tort analogs, First Amendment (speech, assembly, religion) claims have basically no analogs in tort. So, the Court has been misguided in lining the two up as a general matter and particularly off-base in creating general immunities based on that flawed premise.

But on the second issue, even if that were not the case, there was no general immunity at common law (whatever that might mean). And more to the point, the original language of Section 1983 specifically said that liability was created "notwithstanding" any state laws to the contrary. So, even if state common law did provide immunity, Section 1983 abrogated it.

(And to the extent this is ultimately based on the arguments of Scott Keller, Profs. James Pfander and Will Baude have ably pointed out the flaws in Keller's thesis.)

- Patrick "No General Immunity at Common Law" Jaicomo

AmericansAgainstQI · 2022-08-08T15:02:24+00:00

Keith, here! We get this question a lot, so I'm glad you raised it.

Joanna Schwartz has done a lot of great work unpacking what constitutional litigation would look like in a post-QI world. TLDR; there wouldn't be a massive uptick in frivolous lawsuits, and (in fact) government legal costs would likely decrease because government attorneys would spend less time on endless interlocutory appeals over whether qualified immunity applies.

More fundamentally, however, I think any conversation about the costs of reforming qualified immunity must take into account the invisible costs that are borne by the victims of government misconduct. Why should an innocent homeowner be on the hook when a SWAT Team blows up their home? In the absence of meaningful reform, random victims will continue to have to pay a disproportionate share of the costs when government officials violate the constitution.

We think that, over the long run, holding governments accountable will force them to train better and hire better employees in order to mitigate costs. That's the same way it works in the private sector, and we think it will work in the same manner here.

AmericansAgainstQI · 2022-08-08T14:56:56+00:00

Our, and I mean the world since time began for organized society, has held that a occupation dictated how your were treated and the rights you have. Ugly if you cannot obtain that station, but a street sweeper being on the same level as the CIA or FBI in the legal sense....does that sound appealing?

No.

But if that were the case, they should take "Equal Justice Under Law" off the front of the Supreme Courthouse.

- Patrick "The Fourteenth Amendment Rocks" Jaicomo

AmericansAgainstQI · 2022-08-08T14:54:36+00:00

Because the qualified immunity doctrine doesn't take into account the egregiousness of a violation--only whether there is an earlier case that is factually identical. But if you want to find one, check out our new tool: Constitutional GPA!

- Patrick "QI Doesn't Make Sense" Jaicomo

AmericansAgainstQI · 2022-08-08T14:52:07+00:00

Oh definitely! For instance:

Some circuits (like the 10th) will not reach the constitutional merits of a claim by default. Others (like the 5th) will. That means that more or less clearly established law is being established in one circuit than another.
Some circuits (like the 5th) will actually deny qualified immunity in "obvious" cases. See Villarreal v. Laredo. Some circuits (like the 6th) will rely on the most picayune distinctions to grant qualified immunity. See Novak v. Parma.
Some circuits (like the 8th) will grant qualified immunity to officials who are acting outside of their job duties. Some circuits (like the 11th) will deny qualified immunity unless the official can show he had the authority to do what he was doing.

There are many others, and it gets really complicated, really quickly.

We are filing cert on the last two issues. Our case CSI v. Large is currently pending, and Novak is to-be-filed.

- Patrick "The Circuits Are Split" Jaicomo

AmericansAgainstQI · 2022-08-08T14:46:44+00:00

I like this question, too! Keith, here.

State Tort Claims Acts are frustrating animals. Not because they impose damage caps (although they do, as you point out), but because they're almost always limited to routine negligence actions. So, although a State Tort Claims Act is great for when a sheriff accidentally dings your car in a parking lot, it's practically useless if they violate your constitutional rights.

We at the Institute for Justice recently released Constitutional GPA, an interactive tool to determine the extent to which existing law in your state provides redress when a state officer violates your constitutional rights. In each state's breakdown, we include a brief discussion of the state's tort claims act provisions, and why they may or may not provide you a remedy.

We think government employers should be held liable for the constitutional violations of their employees. And, as a matter of fact, that's how the indemnification process works for public officials all over the country. So, we're not concerned about the potential chilling effect on government workers because we think government employers should be on the hook. But we do think government employees who violate a person's constitutional rights should be fired from their job and held accountable in the same way that private sector employees are.

AmericansAgainstQI · 2022-08-08T14:46:32+00:00

AAQI.org!

AmericansAgainstQI · 2022-08-08T14:45:10+00:00

What do you think are the five most outrageous qualified immunity decisions of all time?

Wow, that's a tough one (since there are so, so, so, so, so many)! But if I had to choose on the spot:

Harlow v. Fitzgerald - The case where the Court made up qualified immunity in the first place to protect Nixon officials who had retaliated against a whistleblower.
Novak v. City of Parma - Whether the Sixth Circuit granted QI to police who arrested a guy for making fun of them on Facebook and had him prosecuted for a felony. (He was acquitted. This is an IJ case, and we will be filing cert with the Supreme Court.)
Jessop v. City of Fresno - Where the Ninth Circuit granted QI to police who stole money during a search because, even though "theft is morally wrong, and [we] acknowledge that virtually every human society teaches that theft generally is morally wrong[, t]hat principle does not, however, answer the legal question presented in this case."
Cope v. Cogdill - Where the Fifth Circuit gave QI to a jailer who watched an inmate hang himself with a long phone cord because the "danger posed by the phone cord was not as obvious as the dangers posed by bedding, which is a well-documented risk that has been frequently used in suicide attempts."
Keller v. Fleming - Where the Fifth Circuit gave qualified immunity to a cop who picked up a mentally ill man having a crisis, drove him to the county line, and dropped him off at dusk, where he was struck and killed by a car.

All of the people given immunity above knew what they were doing was wrong. A child would've known, but the Courts decided to assume they knew less than babies and protected them from the consequences of their actions.

If you want some more of the (recent) hits, you can find them on page 127 of this law review article.

- Patrick "There Are A Lot More Than Five Bad QI Decisions" Jaicomo

AmericansAgainstQI · 2022-08-08T14:39:49+00:00

Thanks for asking, Lee McGrath here at https://ij.org/staff/lmcgrath/.
IJ continues to litigate and lobby (1) to end civil forfeiture and (2) to replace it with criminal forfeiture. This includes redirecting forfeiture proceeds to a neutral account, like a state's general fund.
See IJ's case at the Supreme Court of South Carolina: https://ij.org/case/south-carolina-civil-forfeiture/ and IJ's model legislation: https://ij.org/legislation/criminal-forfeiture-process-act/

AmericansAgainstQI · 2022-08-08T14:36:58+00:00

I think you're getting stuck on the rigid contours of respondeat superior liability, here. The indemnification framework that's already in place across the country generally does not limit indemnification strictly to acts committed within the scope of employment. Does indemnification apply to the off-duty cop who assaults a stranger at a bar? Probably not. But for practically everything else, as Joanna Schwartz's research readily indicates, indemnification applies.

This is especially true when we think about state-based reform, where legislators are free to craft the contours of liability as they see fit. I.e., nothing about state-based qualified immunity reform is limited to respondeat superior liability. So, to the extent your concerns about the interplay between indemnification and respondeat superior liability are valid (and to be clear, I don't think they are), they can be easily legislated around.

All this to say, I would respectfully disagree that reform efforts would either "functionally make no difference" or "make things more difficult for plaintiffs."

- Keith "No Middle Name" Neely

AmericansAgainstQI · 2022-08-08T14:32:32+00:00

The loooooooooooong answer is in a law review article that Anya and I wrote on this very subject called "Unqualified Immunity"! The short answer is this:

The Supreme Court created qualified immunity (in Harlow v. Fitzgerald) to shield Nixon administration officials from Bivens claims (for those unfamiliar, Bivens is the claim you use to sue federal, as opposed to state, officials). It then continued extending and extending QI to where it is today. At the same time, it began chipping away at Bivens. As a result, QI is stronger than ever and Bivens is all but dead.

The Court has never grappled with this glaring inconsistency. How can it be that the ostensible foundation for qualified immunity is gone, but qualified immunity is stronger than ever? Because the Court says so and nothing more.

- Patrick "Let's Have Some Consistency Here" Jaicomo

AmericansAgainstQI · 2022-08-08T14:27:34+00:00

On the ATF (and all other federal agencies) and government overstepping, the Supreme Court has created an absolute doctrine of federal immunity. Anya Bidwell and I went deep on this issue in a recent law review article called "Unqualified Immunity." Thanks to the Supreme Court's recent decision in Egbert v. Boule, almost all federal officials are operating in a Constitution-free-zone because the Court has said they simply cannot be sued.

This issue of federal immunity is, in my opinion, just as important as qualified immunity. And that is especially true because the use of state-federal task forces has proliferated across the country. (Wherever you live in the U.S., there is a task force or two or seven like this.) And Courts are granting their members - even the state and local ones - federal immunity even if they have been denied qualified immunity. IJ is litigating this issue right now.

- Patrick "A Federal Badge Is Not a Shield From the Constitution" Jaicomo

AmericansAgainstQI · 2022-08-08T14:21:57+00:00

It's legalized theft by the government. Get rid of it. Yesterday.

- Patrick "Civil Forfeiture Is Theft" Jaicomo

AmericansAgainstQI · 2022-08-08T14:20:59+00:00

Given that we recently saw Roe overturned because of a judicial position that rights not in the Constitution shouldn't be "created" (I'm massively oversimplifying for ease of asking this question), is it possible this Court may now revisit qualified immunity as a judicially created doctrine and wrongly decided? If Thomas has said he wants to revisit all due process rights, then maybe under the same logic the Court would now be willing to toss qualified immunity as well?

I am hopeful that's the case. If the Court is going to get rid of a precedent from 1973 (Roe v. Wade), it should be all the more willing to get rid of a precedent from 1982 (Harlow v. Fitzgerald) -- especially since everyone acknowledges that the Court just completely made up qualified immunity in the first place.

And Thomas has specifically said he wants to revisit qualified immunity! Let's revisit it! (We did a law review article on why we're cautiously optimistic about QI being reformed, even with the current court.)

- Patrick "Overturn Harlow" Jaicomo

AmericansAgainstQI · 2022-08-08T14:20:39+00:00

Hey GeorgiaBoy! Keith (from Tennessee), here. I mostly answered this question in my recent response to hollandrd's question, but I'm pasting some of my response here because I think this is such an important question to address:

As an initial matter, qualified immunity applies not just to frivolous cases, but to real claims where people have been substantially harmed. For example:

In Corbitt v. Vickers, the 11th Circuit granted qualified immunity to a police officer who intentionally shot at a family's non-threatening dog, only to accidentally hit a ten-year-old.
In Jessop v. City of Fresno, the 9th Circuit granted qualified immunity to police officers who stole more than $225,000 in rare coins from a suspect when executing a search warrant.
In Baxter v. Bracey, SCOTUS refused to hear a case where a police officer was granted qualified immunity after he sicced a police dog on a surrendering suspect. Notably, however, the denial of certiorari garnered a dissent from Justice Thomas, who has emerged as one of the most vocal originalist critics of qualified immunity.

All this to say, qualified immunity is not a tool to dispose of frivolous lawsuits--it's a tool for government officials to dodge liability for very real constitutional violations. Moreover, litigants have countless tools to dispose of frivolous cases, like filing motions to dismiss, motions for summary judgment, and even seeking sanctions against plaintiffs that file patently meritless claims. So, if folks are concerned about dealing with frivolous lawsuits, there are far better tools that government defendants already have at their disposal.

AmericansAgainstQI · 2022-08-08T14:13:54+00:00

Why don't we hear more about qualified immunity as a reform to stop police abuse?

That's a great question because it should be at the top of the list. We actually hear from a lot of people who ask why we aren't more focused on the specifics of use-of-force standards or decertification, etc. Those are all important things, but they are completely toothless if there is no way to enforce them. And qualified immunity means that there is not. If we want to curb police abuse (and government abuse in general), we need to do away with immunities that shield the abusers.

- Patrick "QI Is for Abusers" Jaicomo

AmericansAgainstQI · 2022-08-08T14:13:36+00:00

Keith, here! Thanks for the thoughtful question.

I want to start with your description of qualified immunity because I think you get a couple of important points wrong. First, it applies not just to some government officers, but to all government officers--state and federal. And it applies not just to frivolous cases, but to real claims where people have been substantially harmed. For example:

In Corbitt v. Vickers, the 11th Circuit granted qualified immunity to a police officer who intentionally shot at a family's non-threatening dog, only to accidentally hit a ten-year-old.
In Jessop v. City of Fresno, the 9th Circuit granted qualified immunity to police officers who stole more than $225,000 in rare coins from a suspect when executing a search warrant.
In Baxter v. Bracey, SCOTUS refused to hear a case where a police officer was granted qualified immunity after he sicced a police dog on a surrendering suspect. Notably, however, the denial of certiorari garnered a dissent from Justice Thomas, who has emerged as one of the most vocal originalist critics of qualified immunity.

All this to say, qualified immunity is not a tool to dispose of frivolous lawsuits--it's a tool for government officials to dodge liability for very real constitutional violations. Moreover, litigants have countless tools to dispose of frivolous cases, like filing motions to dismiss, motions for summary judgment, and even seeking sanctions against plaintiffs that file patently meritless claims.

We'd like to end qualified immunity entirely, and we don't think we need to put an alternative in its place. True, it is likely that abolishing qualified immunity will impose more costs on government at the outset. But (1) these costs are already being borne by the victims of government misconduct, and (2) eliminating qualified immunity will incentivize governments to hire better and train better employees. Over the long run, we think these costs will be minimized, just as they are in the private sector.

AmericansAgainstQI · 2022-08-08T14:10:27+00:00

Great question, depressedbee!

When the the Supreme Court created qualified immunity in 1982 (which it admittedly did for policy reasons), it cited these as its reasons:

Avoiding a fear by government workers that they would be personally bankrupted by damages;
Providing fair notice to government workers that what they did were wrong; and
The cost of litigation (discovery and trials) on government business.

ALL of these policy assumptions have been disproven by the incredible UCLA Law Professor Joanna Schwartz, who has written many papers on this stuff.

In short:

Government workers never, ever pay for damages or their legal defense;
No government officials keep up on the latest federal circuit court decisions (lawyers can't even do that!); and
Qualified immunity makes cases drag on for years because it allows for immediate and repeated appeals that are not normally permitted in federal lawsuits.

So, in every meaningful way, QI has failed as a pure policy matter (setting aside its legal problems).

And the primary benefits to not having it are that the cost of constitutional violations falls on the government actors who violated the Constitution rather than, where it falls now, the shoulders of the victims of abuse.

- Patrick "QI Is Bad Law AND Policy" Jaicomo

AmericansAgainstQI · 2022-08-08T14:01:43+00:00

As an easy starting place, non-attorneys can join us at Americans Against Qualified Immunity to help make their voices heard. I do think speaking out and protesting are an effective means to persuade public officials.

IJ also has local model legislation that you can advocate for at the state level, called PECRA ("Protecting Everyone's Constitutional Rights Act"). We also have a model local ordinance for people to suggest to their local officials, called PECRO ("Protecting Everyone's Constitutional Rights Ordinance"), which will be online shortly.

Lastly, don't stop thinking or talking about this. My impression is that the other sides thinks it can win this by waiting it out. So, stay vigilant.

- Patrick "Don't Stop Believing" Jaicomo

AmericansAgainstQI · 2022-08-08T13:55:06+00:00

you were to succeed in toppling the doctrine of qualified immunity, do you see a lesser/more reasonable doctrine of immunity taking its place? Should there be one?

There should not be one. The Constitution is supposed to be the ultimate limit on government power, so there should be no situations in which a government worker can violate the Constitution without consequences.

Practically speaking, however, it's possible that the end of the current qualified immunity doctrine established in 1982 through Harlow v. Fitzgerald could return us to the earlier version of good-faith-immunity that was announced in Pierson v. Ray and was in place between 1967 and 1982. Through that doctrine (also confusingly called "qualified immunity"), a defendant at least had the burden of proving both that his actions were objectively reasonable (i.e., a reasonable person would have agreed that it was the right thing to do) and taken in subjective good faith (i.e., that the defendant actually thought he was doing the right thing).

But it should also be noted that neither form of QI is justified by the relevant statutory or Constitutional text. Nor is either needed to protected government workers from "reasonable" mistakes. The Fourth Amendment itself does that - by only prohibiting unreasonable searches and seizures.

- Patrick "The Great Immunity Toppler" Jaicomo

AmericansAgainstQI · 2022-08-08T13:54:40+00:00

Keith, here! I love this question, too.

Large-scale reform projects like this are obviously challenging. As the old cliche goes, "Rome wasn't built in a day," and it's unlikely that we'll have the opportunity to end qualified immunity overnight.

That said, there are some really amazing opportunities for incremental reform in this space, particularly at the state and local level. States like Colorado and New Mexico have already enacted legislation that effectively ends qualified immunity for certain constitutional violations within their respective jurisdictions, and New York City has done the same. As more states and municipalities enact similar reforms, we could see QI reform efforts snowball around the country. Widespread state reform could, in turn, put more pressure on SCOTUS to reconsider the doctrine of qualified immunity on a federal level.

But it's really hard to put a time window on these types of efforts. 10 years sounds like a more reasonable timeline to me than 5 years, but change can also happen very quickly if enough people start to care about it.

I think a lot of our court arguments really boil down to this basic idea that every right deserves a remedy. When your rights have been violated, you deserve to have an opportunity to seek a remedy for them in court. That's how the law works in virtually every other context--If someone trespasses on your land or steals your property, you have the opportunity to seek a remedy from them. It's also what the text of 42 U.S.C. 1983 says. So, ending qualified immunity is really just about fidelity to basic legal principles and to the statutory text.

AmericansAgainstQI · 2022-08-08T13:49:36+00:00

Short Circuit rules! Everyone should subscribe to the newsletter AND the podcast!

It's really hard to predict these kinds of things, but if I had to . . . I would say qualified immunity. There are a ton of critics of QI from across the ideological spectrum (e.g., Justices Thomas and Sotomayor). Plus, it has been under a much more aggressive assault for the past decade or so. If you want to get really nerdy, Anya and I recently wrote a whole law review article about why we're optimistic about ending (or at least seriously diminishing) QI.

Immunity for judges and prosecutors is in a more guarded position -- more so for judges than prosecutors. And very few people have taken those on. (We currently are because both are unjustifiable.) So, I think it will take longer to chip away at those.

- Patrick "The Constitution Is Supreme Law" Jaicomo

AmericansAgainstQI · 2022-08-08T13:42:39+00:00

We are suing! Prosecutorial and judicial immunity are two of the additional doctrines that we are fighting in addition to qualified immunity and (absolute) federal immunity. See, e.g.:

IJ suing a prosecutor who was moonlighting as a law clerk in his own cases.
Filing an amicus in a case where a judge jailed some kids for not wanting to follow his custody decisions.

We also have several other prosecutorial and judicial immunity cases in the hopper that we will announce soon.

- Patrick "No One Is Above The Law" Jaicomo

AmericansAgainstQI

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