For over a year, Cato has been leading the charge to challenge the doctrine of qualified immunity: an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s, which shields government agents from liability for misconduct – even when they break the law. Today marks a huge milestone in that ongoing campaign, as Cato has just filed an amicus brief in support of a new cert petition calling on the Court to reconsider this doctrine. So has a diverse, cross-ideological alliance of over a dozen prominent public interest groups, as well a group of leading qualified immunity scholars. In the words of Wyatt Earp: “You called down the thunder. Well, now you’ve got it!”

The case at issue is I.B. and Doe v. Woodard. When I.B. was a four-year-old girl, she was strip searched and photographed at her preschool by April Woodard, a state caseworker. Woodard had neither a warrant, nor the consent of the girl or her mother, nor were there any exigent circumstances requiring such an invasive search. All she had were unfounded abuse allegations (specifically, of a few marks and bruises on I.B.) which easily could have been checked and disproven through a non-invasive search. After I.B. complained to her mother about what happened, Woodard denied having performed a search at all, and continued to lie about that fact for several weeks, until finally admitting what she had done. I.B. suffered severe and ongoing emotional trauma as a result of being strip-searched and photographed against her will.

I.B. and her mother filed a Section 1983 against Woodard (and others), alleging violations of I.B.’s Fourth Amendment rights. But a divided panel of the Tenth Circuit held that the defendants were entitled to qualified immunity, because Woodard’s strip search did not violate “clearly established law.” The court failed to even address the Fourth Amendment claims on the merits, noting only that (1) there was a circuit split on whether a warrant was necessary under these circumstances, and (2) assuming a warrant wasn’t necessary, it was still not “clearly established” whether this sort of strip search was permissible. This latter holding is particular shocking, because the Supreme Court itself recently addressed this exact subject matter (warrantless strip searches of children in schools) in Safford Unified School District No. 1 v. Redding. In Safford, the Court even said it was seeking “to make it clear” that an intrusive strip search of a child was justifiable only with “specific suspicions” that evidence of danger or wrongdoing will be found in the area searched. For this reason, Judge Briscoe dissented in part from the Tenth Circuit’s decision, and would have held that I.B.’s strip search violated “clearly established law,” as stated in Safford. 

The Tenth Circuit’s decision exemplifies everything that is perverse and unjust about qualified immunity. I.B. had her constitutional rights violated in an egregious manner, yet she was left without a remedy because of a fictitious doctrine, with no grounding in the text or history of Section 1983. The Tenth Circuit refused to even decide whether her constitutional rights were violated in the first place, and it applied the “clearly established law” test so strictly that a seemingly on-point Supreme Court case concerning nearly identical circumstances was still insufficient to overcome qualified immunity. 

I.B. and her mother are now represented by Scott Keller, chair of Supreme Court practice at Baker Botts, and they’ve filed a powerful cert petition, asking the Supreme Court both to resolve the Fourth Amendment questions at issue here, but also to reconsider the doctrine of qualified immunity itself. Today, Cato filed an amicus brief in support of that petition, arguing that qualified immunity lacks any proper legal or historical basis, and that it is not entitled to respect under the doctrine of stare decisis. Specifically, we explain how (1) the “clearly established law” standard is so malleable and indefinite that it has failed to create the kind of stability and predictability that justify respect for precedent in the first place; (2) that the Supreme Court itself has already made major modifications to qualified immunity over the years, and therefore should have no qualms about reconsidering the doctrine now (but this time to bring it line with the statute Congress actually passed); and (3) that allowing the status quo to continue severely undermines public accountability and effectively subjects citizens to ongoing constitutional violations.

Ours is far from the only brief being filed today, however – we’ve also helped coordinate the drafting and filing of two additional amicus briefs. The first is on behalf of a group of leading qualified immunity scholars, who discuss the academic consensus that the Court’s qualified immunity doctrine is in serious need of correction. The second is on behalf of a diverse array of groups from across the ideological and professional spectrum, who nevertheless all share a common interest in ensuring that government officials are held accountable for their misconduct. This brief was joined by all of the following groups: the ACLU, Alliance Defending Freedom, American Association for Justice, Americans for Prosperity, Due Process Institute, Institute for Justice, Law Enforcement Action Partnership, MacArthur Justice Center, NAACP Legal Defense Fund, National Association of Criminal Defense Lawyers, Public Justice, R Street Institute, Reason, and the Second Amendment Foundation. Take a moment and consider just how egregiously misguided a Supreme Court doctrine has to be to unite all of these organizations in opposition, on a single brief. (Note also that several other groups have filed additional amicus briefs asking the Court to take the case, although we weren’t specifically involved with those.)

All in all, this case represents one of the most promising opportunities in the ongoing fight against qualified immunity. It highlights the sort of gross injustice that the doctrine regularly permits, demonstrates just how much cross-ideological consensus there is on this issue, and presents the Court with an ideal vehicle for restoring Section 1983 to its proper stature. We can only hope the Court answers the call.