Qualified immunity is an affirmative defense shields state and local government officials from liability in civil rights lawsuits even when they have violated the plaintiffs’ rights. When qualified immunity is asserted, the plaintiff has the burden of showing that the right in question was “clearly established” by controlling case law in the relevant jurisdiction.

But the clearly established standard has become hopelessly muddled because lower courts ask not merely whether the right at issue is clearly established, but instead whether that right has been previously violated in the essentially the exact same way, resulting in a court ruling that the specific conduct is unlawful. Even slight factual differences can lead to a determination that the defendant did not have sufficient notice that their conduct was forbidden. As a result, victims of clear constitutional violations may be left without recourse by the mere happenstance that court has not previously held that the defendant was forbidden from violating their rights in that particular way. Under this abstruse standard, qualified immunity is applied inconsistently in the lower courts, leading to significant confusion and unpredictable decisions, even within circuits.

In 2018, Officer Jared Withers pulled over Joseph Hoskins in Toole County, Utah, for an partially obscured license plate. Hoskins complied with all police instructions throughout, including exiting his vehicle and standing by while Withers retrieved his drug dog and walked it around Hoskin’s car. When Hoskins became concerned about the dog damaging his car by jumping on it repeatedly, Officer Withers refused to stop the search or control the dog. Frustrated by the damage to his car and the prolonged stop, Hoskins cursed at Withers, insulting his mother. Officer Withers then pulled his gun and pointed it at Hoskins.

The parties offer differing explanations for Officer Withers’ actions, with Hoskins claiming that Withers drew his gun in retaliation for Hoskins’ protected speech, and Withers claiming that he drew his gun because Hoskins’ hands were at his waist, despite having been satisfied earlier in the encounter that Hoskins carried no weapon. As required at the motion to dismiss stage, the appellate court read the facts in Hoskins’ complaint in the light most favorable to him, crediting his allegations about Withers’ retaliatory motive. Hoskins off-color comment, though profane, was still protected speech. Nevertheless, the court upheld the dismissal of Hoskins’ retaliation claim on the grounds that there was no preexisting case with identical facts to put police on notice that they should not point their guns at people for exercising their First Amendment free-speech rights.

Government officials should not feel empowered to commit serious, and sometimes even deliberate, constitutional violations simply because no court has specifically told them they can’t do so under the particular facts of a given case. Cato’s amicus brief supporting Hoskins’ cert petition argues that qualified immunity is a deeply flawed doctrine that has no basis in the law, routinely deprives victims of civil-right violations the recourse Congress intended for them to have, and erodes public trust in law enforcement and government, thereby undermining the legitimacy and efficacy of the criminal justice system.