Cato Leads the National Campaign to Eliminate Qualified Immunity

The Cato Institute’s Project on Criminal Justice has been leading calls for police accountability and criminal justice reform for decades. One of the most important elements of that effort has been Cato’s pioneering campaign launched in 2018 to abolish qualified immunity.

Scales of Justice
  • Introduction
  • Cato's Campaign to Eliminate Qualified Immunity
  • Cato and Police Accountability
  • History of Qualified Immunity
  • Cato on Capitol Hill
  • Related Content

For a quarter of a century, Cato has been leading calls for police accountability and criminal justice reform. Cato scholars have been central to advancing principled, empirically oriented research on police misconduct including efforts to collect data on police shootings and raids, racial disparities in policing, militarization, excessive force, stop‐​and‐​frisk and questionable surveillance techniques.

One of the most important elements of that effort has been Cato’s pioneering work for a campaign launched in 2018 to abolish qualified immunity, a judicial doctrine that shields state officials, including law enforcement, from liability when they violate people’s constitutional rights.


Cato’s Campaign to Eliminate Qualified Immunity

2018

January 1

Vice President for Criminal Justice Clark Neily argued that the “legal fiction” of qualified immunity was a “tragic miscarriage of justice” that the Supreme Court should take its first opportunity to fix.


February 28

Courts are loath to take cases that might alter or weaken qualified immunity, the legal doctrine that protects police from some of the consequences of serious misconduct. Why? William Baude of the University of Chicago Law School comments.


March 1

Cato launches its strategic campaign to eliminate qualified immunity with an event, Qualified Immunity: The Supreme Court’s Unlawful Assault on Civil Rights and Police Accountability, featuring some of the nation’s top scholars.



April 1

George Will, appearing on NBC’s “Meet the Press,” noted that “[T]here should be a national discussion on qualified immunity, and it will be led by the Cato Institute.”


July 11

The New York Times notes that Cato Policy Analyst Jay Schweikert helped assemble the most “ideologically diverse” amicus briefs ever filed, encouraging the Supreme Court to hear a case.

The Court, however, failed to act.

2019

July 15

Jay Schweikert details the reasons the Supreme Court should review the Eleventh Circuit’s decision in Corbitt v. Vickers, calling the lower court’s decision “one of the most grotesque and indefensible applications of the qualified immunity.”


September 19

Taking the fight to Capitol Hill, Jay Schweikert provides testimony to the House Judiciary Committee, arguing that reforming police practices must include termination of qualified immunity.


December 20

Cato takes the lead on amicus briefs in two major qualified immunity cases, on behalf of both itself and a diverse array of public‐​policy organizations across the ideological spectrum. The petitions in both cases asked the Supreme Court to reconsider the doctrine entirely, and Cato’s cross‐​ideological brief explained how qualified immunity was exacerbating our crisis of confidence in law enforcement.


2020

January 17

The fight against qualified immunity expanded when the Institute for Justice asked the Supreme Court to review an outrageous case from Idaho involving the destruction of a woman’s home during the course of a “consensual” search.


March 5

Jay Schweikert testifies as a subject‐​matter expert on qualified immunity before the Colorado House Judiciary Committee, in relation to a civil‐​rights bill that would eliminate qualified immunity.


April 30

Jay Schweikert again pushes the Supreme Court to hear arguments against qualified immunity in its fall term.

The Supreme Court has been reluctant to take a case challenging qualified immunity, a doctrine that protects police from the consequences of violating Americans’ rights.


May 27

Clark Neily implores the Court to accept that George Floyd’s death at the hands of Minneapolis police officers must be a catalyst for accountability, and that they must take steps to end qualified immunity protections for guilty officers.


June 12

Colorado General Assembly passes a police reform bill that includes a full elimination of qualified immunity for lawsuits brought against police officers.


June 15

Clark Neily and Jay Schweikert lament the Supreme Court’s “dereliction of duty” in again denying all petitions challenging qualified immunity.

The Supreme Court has swept away all current challenges to qualified immunity, effectively keeping the doctrine’s attendant problems alive for the time being.


June 16

Jay Schweikert details to Congress, in written testimony for the Senate Judiciary Committee, that with the Supreme Court’s refusal to act, it is now vital that they jump‐​start comprehensive reform by eliminating qualified immunity legislatively.


Cato and Police Accountability

Prior to Cato’s 2018 campaign to end qualified immunity, Cato scholars were already putting down markers on how and why law enforcement practices need to be changed nationwide.

1994

Cato Chairman William Niskanen called for repeal of the Violent Crime Control and Law Enforcement Act of 1994, finding that the legislation over‐​federalized what should be local public safety efforts.

2003

Cato Vice President Gene Healy warned about the creeping militarization of domestic police forces in “Deployed in the USA.”

2006

Cato Policy Analyst Radley Balko published his groundbreaking report “Overkill: The Rise of Paramilitary Police Raids in America.

2013
2015

Cato Policy Analyst Matthew Feeney issued a best‐​practices guide for use of policy body cameras

2016

Cato’s Director of Polling Emily Ekins completed a broad survey of attitudes toward law enforcement across the nation, “Policing in America: Understanding Public Attitudes Toward the Police.”

History of Qualified Immunity

In 1871, Congress passed civil rights legislation which made public officials accountable for violating constitutional rights. If the intent of this law were still in place, modern‐​day police departments would be liable for not just egregious misconduct, but any constitutional violation.

Finally, in the 2009 Pearson v. Callahan case, the Court struck the final blow to almost all future civil rights claims against law enforcement. Courts would now have to first determine whether “clearly established law” existed before determining whether misconduct amounted to a constitutional violation. Courts began dismissing claims before ever deciding the underlying constitutional issue, never setting precedent, and never developing the required body of “clearly established law.”

In 1967, the Supreme Court ultimately destroyed this liability. In Pierson v. Ray, the court came up with the doctrine of “qualified immunity,” arguing that law enforcement officers when acting in “good faith” while carrying out their duties, could not be held liable for violations of an individual’s rights.

In 1982, the Court erected a significant barrier to overcoming qualified immunity. In Harlow v. Fitzgerald, with the “clearly established law” standard, an individual whose rights had been violated could seek redress only if they could find a case nearly identical to their own in which the offending conduct was deemed to be a constitutional violation.

Finally, in the 2009 Pearson v. Callahan case, the Court struck the final blow to almost all future civil rights claims against law enforcement. Courts would now have to first determine whether “clearly established law” existed before determining whether misconduct amounted to a constitutional violation. Courts began dismissing claims before ever deciding the underlying constitutional issue, never setting precedent, and never developing the required body of “clearly established law.”

Cato on Capitol Hill

Due to Cato’s efforts, qualified immunity has garnered significant attention in the context of recent events. Members of both the House and Senate, with help from Cato policy analyses, have introduced legislation to end this legal loophole for police officers.

We’re also taking aim at coercive plea bargaining, and our work is gaining momentum. While many on the left are on the right side of this debate, Neily is using the Michael Flynn case as a vehicle to convince Republicans that this is an issue they need to get behind.