Cato At Liberty

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. 

Since 2012, Border Patrol has apprehended a growing number of nationals from countries other than Mexico—almost all of them from Guatemala, Honduras, and El Salvador. Last year, however, the agency saw threefold increases in apprehensions of Nicaraguans and Indians. These spikes may represent a widening awareness that America will accept people from around the world who come to the border to request asylum.

Figure 1 shows that from fiscal year 2017 to 2018, the number of Nicaraguans arrested by Border Patrol increased from 1,098 to 3,337—a 204 percent increase—and the number of Indians grew from 3,135 to 9,234—a 195 percent increase. That said, the two nationalities still represent a relatively small share of the total number of non-Mexican arrivals. The two nationalities grew from 2.4 percent of all other than Mexican apprehensions to 5 percent from 2017 to 2018. But the jumps are noteworthy as similar jumps in the Northern Triangle were a prelude to a snowball effect later.

India’s economy is growing, but its unemployment rate appears to be the highest in 45 years. Meanwhile, Nicaragua has suffered from political protests after the country lost aid from Venezuela, and its government had to cut benefits. The government has cracked down on the protests, killing hundreds of people. The Nicaraguan economy has hit a severe recession. Given its proximity to the United States and to the Central American caravans moving north, Nicaraguans who initially retreated south to Costa Rica may start to head to the U.S.-Mexico border to claim asylum.

Initial reports from FY 2019 imply that this upward trend for Nicaraguans may have continued. PRI reported in late September:

‘What’s changed is the scope with which people have been targeted,’ said Alexander Parcan, an attorney with the group Human Rights First who is representing Nicaraguans seeking asylum in the United States. He said until this year, the few people fleeing Nicaragua were mostly outspoken political activists. But he says now Ortega is labeling regular people who participated in the protests — teachers, bus drivers, nurses, etc. — as political enemies.

According to Mexican immigration officials, the number of Nicaraguans detained has increased 125 percent since April. US Border Officials don’t have statistics on how many Nicaraguans are applying for asylum, but immigration attorneys say they are also seeing an increase. Much of the increase is from people like Maciel García and her family. 

Moreover, Costa Ricans started to protest the camps of Nicaraguans in their country, possibly incentivizing others to head through El Salvador, Guatemala, and Mexico to reach the United States. More Nicaraguans have shown up in the caravans in FY 2019 as well. It is likely that this summer will see yet more arrive. Congress needs to intervene to make legal immigration possible, particularly for migrants from the Northern Triangle countries, to make the asylum process manageable again.

Presidential candidate and Sen. Elizabeth Warren (D-Massachusetts) wants to see more business people behind bars, and she’s not fussy about how to make that happen. In a Washington Post op-ed last week she unveiled a new Corporate Executive Accountability Act, which in her words would expand “criminal liability to any corporate executive who negligently oversees a giant company causing severe harm to U.S. families.” She says she wants top executives to know that they can be (again in her own words) “hauled out in handcuffs for failing to reasonably oversee the companies they run.”

Under longstanding legal protections in the Anglo-American legal system, before convicting you of most crimes prosecutors must ordinarily show that you had mens rea, a guilty state of mind. Occasionally one or another law relaxes the standard of guilt to “willful blindness” or gross negligence. More rarely, as under a controversial doctrine in FDA law, courts have permitted convictions on a theory of what amounts to vicarious criminal liability, as of a drug executive whose underlings commit certain offenses even absent proof that the higher-up knew of, encouraged, or was willfully blind toward the offenses. I criticized that “responsible corporate officer” doctrine in the FDA setting in this space two years ago, as well as in the chapter on white-collar prosecution in the Cato Handbook for Policymakers. Warren explicitly states that her proposal “builds on” it as the basis for her proposals for what should happen to executives generally.

Cato has been sounding the alarm about decay in mens rea standards for years, even as some civil libertarians have chosen to stay on the sidelines. But you don’t have to be libertarian to find what Warren is proposing a “very bad idea,” one based on “dangerous” arguments and propelled by “political rhetoric that is designed to inflame voters’ sense of injustice and righteous indignation.” Writing in Slate, law professors Carissa Byrne Hessick and Benjamin Levin observe:

Negligence is an incredibly low standard for criminal punishment. A person who is acting negligently does not know that what she is doing (or failing to do) is wrong or risky. Negligence means that a “reasonable person” in that position would have realized that there was a risk of harm. Prosecutors are likely to think that defendants should have known that there were risks simply because something bad occurred—not because they necessarily would have recognized the risks themselves if they’d been in that situation.

Warren backs her call for a simple negligence standard for criminality with what Hessick and Levin call a “highly misleading” example in which hypothetical executives are aware that their conduct might break the law but are willing to count on a low risk of being held personally to account. But that’s not a case of simple negligence, but of “recklessness or ‘willful blindness’ —mental states that are both more serious and more difficult to prove than the negligence standard she proposes.” In other words, Warren demands a broad dragnet while inveighing against conduct that could have been addressed with a much narrower prohibition. Is the senator’s slipshod manner of argument merely negligent? Or should we interpret it as reckless or perhaps even as deliberate misconduct?

One of Warren’s most dangerous arguments for relaxing the law’s standards for knowingness and requisite mental state is that prosecutors often find it difficult to prove higher and more exacting standards. The effect, note Hessick and Levin, is “to water down the law simply to make it easier to punish people.” Some may imagine that prosecutors will use the broader powers only against defendants who did something that is worse but harder to prove. Hessick and Levin call that argument “very dangerous”: 

We should not change the law to include conduct we don’t actually want to punish in order to make it easier for prosecutors to punish people we think do bad things that are hard to prove. Overly broad laws essentially delegate the content of the criminal law to prosecutors. And prosecutors will decide what is worthy of punishment using criteria that the public doesn’t know about and that can change from case to case and defendant to defendant. Prosecutors can even enforce the law as written—to cover truly accidental behavior—and there is nothing potential defendants can do about it. 

We should be clear about who will be at risk if Sen. Warren passes her law. The civil courts already hear many thousands of cases seeking damages over claims that serious harm arose from industry conduct that falls short of being reckless or deliberately wrongful. Not infrequently – as with claims over supposed “sudden acceleration” in cars, cancer from Roundup, and autoimmune disease from silicone breast implants – large sums get paid even when science finds no basis for concluding the products caused the harms alleged, such is our legal system’s tendency to tilt against business defendants as unsympathetic. Under the Warren standard, complaints that driverless cars have gotten into avoidable accidents or vaccines have caused side effects – maybe even that cheeseburgers, supersize sodas, and margaritas have worsened the harms of obesity – will put business people at risk for long prison terms. To her backers, will this count as a bug? Or a feature?