An Unprecedented Opportunity to Revisit Unqualified Immunity
2020-06-10 · Guest: Clark Neily (Cato Institute VP for Criminal Justice) · 52:01
Qualified Immunity and Police Accountability Reform
Bob Zadek and Clark Neily discuss the legal doctrine of qualified immunity, tracing its origins from the Civil Rights Act of 1871 to its judicial transformation into a shield for government actors. They explore how the “clearly established” standard prevents accountability for police misconduct and discuss current efforts in the Supreme Court and Congress to reform the doctrine.
Topics: Qualified Immunity, Section 1983, Police Accountability, Supreme Court, Judicial Activism, Criminal Justice Reform, Civil Rights
Speakers: Bob Zadek, Clark Neily
Introduction to Qualified Immunity [00:00]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. The show this Sunday and always of ideas, never once the show of attitude. Well, we have it this morning. We have at the perfect time, the perfect guest and the perfect topic. We will be discussing this morning a topic which everybody is talking about. Everybody in the media, the political class, and everyday Americans are all talking about this morning’s topic virtually all the time, and they do not even know it.
We are talking about a topic that most people have never heard of, but it affects their life today more than perhaps any other public interest topic presently in the news. We are talking about qualified immunity. Two words that affect the life of all of us profoundly now and in the recent past without anybody understanding the concept at all—that is, until this morning.
I’m delighted to welcome back to the show this morning Clark Neily. Clark is a vice president for criminal justice at the Cato Institute. Now, Cato’s bio, official bio, I dare say, of Clark indicates his area of interest includes constitutional law, over-criminalization, civil forfeiture. That’s not correct. It is not Clark’s area of interest. It is his passion. These are the topics that he has devoted probably the overwhelming portion of his professional life to, examining in great detail and with enormous effectiveness every citizen’s relationship to the criminal justice system. And Clark has done so with enormous effectiveness as a litigator, as a writer, as a scholar, as a blogger, and as a law professor. And this morning’s topic, as I said, is qualified immunity. What it is, how we got to have qualified immunity in the criminal justice jurisprudence, where it came from, the damage it has done, and how we get rid of it. And getting rid of it will be an important part of this morning’s topic. So with that introduction, Clark, welcome back to the show this morning.
Clark Neily: Thanks so much, Bob. I really appreciate that introduction. That’s a lot to live up to, but I’m thrilled to be back. Thanks so much.
Bob Zadek: Oh, we know you have it in you, and the audience will see that I am right. Now, first, qualified immunity. I have, in all of that I have read about the George Floyd killing and all the other events, the protests that result, I think it’s fair to say that in all of the media, written, broadcast, blogosphere, I have never seen those two words in print or even spoken: “qualified immunity.” What is qualified immunity? Immunity from what, and how is it qualified?
Clark Neily: Yeah, it’s this terrible legal doctrine that’s been kind of hiding in plain sight and finally is out in the light where it belongs. I think the best way to understand qualified immunity is that it is the cornerstone of our near-zero accountability policy for law enforcement. We clothe police and prosecutors with extraordinary powers, including, as we saw so tragically in Minneapolis a couple of weeks ago, the power of life and death. And it matters tremendously how accountable people are when you clothe them with that much power. And unfortunately, as we’ll discuss this morning, through qualified immunity, we have effectively chosen a near-zero accountability policy for law enforcement. Except it’s not quite accurate to say we chose it because, in fact, qualified immunity is a judge-made doctrine that was invented out of whole cloth by the Supreme Court and effectively engrafted onto a civil rights law that actually was designed to provide much more protection for our rights.
The Origin of Section 1983 [05:09]
Bob Zadek: So the story starts way back around 1871, in the immediate aftermath, of course, of the Civil War. And a statute was enacted to protect the civil rights from the bad acts of government officials. Tell us about 42 U.S. Code Section 1983, because that’s where our story starts.
Clark Neily: Well, that’s exactly right. And in the wake of the Civil War, Congress was very aware of the systematic abuse and violation of individual rights, particularly in the South, by many government actors—sheriffs and constables and so forth. In response, Congress enacted what was then called the First Enforcement Act, also known as the Ku Klux Klan Act. And as you correctly note, it’s now today referred to as Section 1983 because that’s where it appears in the U.S. Code, 42 U.S.C. Section 1983. And it very straightforwardly provides the following: any state actor, meaning any police officer, any other government official employed by a state or local government, shall be liable to the person injured for the deprivation of any right. I’ll say that again: any state actor shall be liable to the person injured for the deprivation of any right. So it was quite a sweeping protection of civil rights, and it provided the ability for individuals whose rights had been violated by government officials, including police, to file a civil rights lawsuit in federal court to vindicate those rights and seek compensation. That is the law that Congress passed, but as we discussed a moment ago and I’m sure we’ll discuss more, the Supreme Court saw fit to judicially amend it.
Bob Zadek: So we have a statute that nobody can quarrel with. It simply states kind of the obvious, that state actors cannot deprive citizens of any of their constitutional rights. Not that they cannot—that’s really a misstatement. They can, but if they do, they are civilly liable. A lawsuit can be brought, citizen versus state official in their private capacity, and they will be liable. And the thinking is, once people are liable for their bad acts, they are less likely to commit the bad acts. So it is a way to use the civil law system, not the criminal law system, not any bureaucracy, but the civil law system to help, no pun intended of course, police bad actors in state and local government. Nobody could quarrel with that. And the statute seems to have initially accomplished its goal, probably. One would like to think that the incident, that there was at least liability if bad actors in the Reconstruction South were thought, of course, ignoring federal constitutional law, they were stepping on the rights of blacks and others, and they were—they could be sued for civil liability. Fine and dandy. Congress passed a good statute, thoughtful, and it ought to have solved the problem. So then in the life cycle of qualified immunity, so we have civil liability for bad actors, then what happened?
Judicial Modification: Pierson v. Ray [08:46]
Clark Neily: Right. Well, two things kind of happened roughly simultaneously. It wasn’t really until the mid-20th century that the Supreme Court began to hold that the Constitution, and specifically the 14th Amendment, protects a variety of individual rights against violation by state and local actors. There just wasn’t really much case law on that up until the mid-20th century. But right around that time, we saw kind of an effusion of case law from the Supreme Court building out the kind of jurisprudence of individual rights that we’re familiar with today. And not long after that happened, the Supreme Court began the process of judicially amending Section 1983 to limit its scope and make it a less effective accountability mechanism than the one that was designed by Congress. And that first started in a 1967 case called Pierson v. Ray, where the Supreme Court took kind of a first step, and frankly, not a hugely objectionable step, except for the fact that it was beginning to rewrite the statute. It just did so in a small way. And essentially what the court said in that case was that if a police officer enforces a law that is then thought to be constitutional, and that law is later struck down, then the police officer should not be liable for his acts of enforcing what he thought and what everybody else thought was a constitutional law simply because it was later struck down. But as with so many things, that became the sort of—that was the first tiny little snowball that, as it began to gather momentum down the hill of non-accountability, it really turned into an avalanche that ultimately caught up with Section 1983 and has really gutted the statute and rendered it largely ineffective.
Bob Zadek: So that first decision really is not—one really couldn’t question that. It kind of makes sense. The Supreme Court was simply doing its job, which is helping us understand a statute, how it applies to changed circumstances. And it seems to make sense. How could you impose upon a police officer or other state actor, how could you impose upon them the duty to predict subsequent unconstitutionality? It’s impossible, unfair, and that all makes sense. So then what happened? Because that first step seems kind of benign and unobjectionable.
The “Clearly Established” Standard [11:06]
Clark Neily: And that’s the way, unfortunately, so many things can go wrong. Because really, even that much, even though it makes sense, it really was somewhat inconsistent with the language of the statute. And so while I think it does make sense, you could also make the case that it really was not for the Supreme Court to come up with this exception or this kind of immunity, but should have been left to Congress, because Congress, of course, has the ability to fine-tune these statutes. But where it really went haywire was in 1982, in a case called Harlow v. Fitzgerald, where the court came up with what has now become the modern heart and soul of the qualified immunity doctrine, which is that they essentially engrafted onto the statute the following words. You may recall that the actual language of Section 1983 says that a state actor shall be liable to the party injured for the deprivation of any right. What the Supreme Court did was change that. So now it’s any “clearly established” rights. And so in order to sue a police officer, you have to show that the right in question was clearly established. And the way the courts have said that you do that is you must identify a preexisting case in your jurisdiction where essentially the exact same thing was done to somebody else and the courts have already said that it’s impermissible. And if you can’t find a case with nearly identical facts, then your case will be thrown out and dismissed because qualified immunity will apply as a defense and the police officer will get off the hook even if everybody agrees that he violated your rights. The mere fact that you were unable to find a preexisting case means that he will get away with it.
Bob Zadek: So that means that—but the strange thing about that is, once that becomes the law, there’ll never be a first case. There’ll never be a first case which becomes a preexisting case, because the first case is the first case. Which means those two words, “clearly established,” in effect totally neuter the statute. Or am I exaggerating?
Clark Neily: Not by much. So your instinct is exactly right. And up until the late 1980s—I’m sorry, I think the 90s, late 90s—the Supreme Court required lower courts to handle these cases in what you would think was the intuitively correct manner, which is to first ask, “Okay, look, was there a constitutional violation in this case, yes or no?” If the answer is yes, only then do we go on and say, “Okay, but was it a clearly established right?” What the Supreme Court did was it allowed lower courts to approach that analysis in whatever order they wish. And so what many courts now do is exactly what you suggested a moment ago: they simply skip that first step. They don’t answer whether or not the conduct at issue violated the Constitution and essentially say, “Well, putting aside the question of whether this police officer acted unconstitutionally, we know that there wasn’t a case on point, so it can’t be clearly established.” And you’re exactly right: the law stagnates, and the police can continue engaging in blatantly unconstitutional behavior over and over and over again because you never get that first case that says this is unconstitutional. And it’s a huge problem.
The Double Standard of Accountability [14:18]
Bob Zadek: When we were in law school, Clark, all of us one-time law students always learned this doctrine of tort law: the first bite is free. And what we learned is, if one owned a pet, a dog, and the dog bit somebody, and you were sued, if I remember correctly, by the bitee, the one who was bitten, unless you knew your dog had a tendency to bite people, you were not liable in negligence. But once the dog bit somebody, while that first bitee couldn’t sue you, subsequent bitees could, because now you knew. So what the Supreme Court tried to do, except in changing the order, the policy kind of made sense. A court could find, “Okay, this specific act violates constitutional rights, but since this policeman didn’t know, he gets to walk. But hereafter, that’s the free bite. And hereafter, if any policeman does this particular act, they’re now on notice.” So it’s prospective legislation, kind of. And that, while it waters down the concept of liability, at least it puts law enforcement on notice. But that has, as you have pointed out, that has gone away. So there never is the first bite, if you will. And therefore, in effect now, in a large majority of cases, police violate rights with total immunity, thus qualified immunity, because there never is the first bite. Is that an accurate summary?
Clark Neily: It’s 100% accurate. And I’d like to point out an analogous point that really drives home the fundamental lack of fairness here, and that is this: when the government prosecutes you for an alleged criminal violation, the fact that you didn’t even know that what you did was a crime—in other words, you were not on notice that your conduct was illegal—that will not save you. That is not a defense. And as you’re aware, I’m sure you are aware of the expression “ignorance of the law is no excuse.” That’s actually true. And so you have this incredible double standard where the government can and will prosecute you for doing something that you did not know was illegal and put you in a cage. But when the shoe is on the other foot, the government will not allow a police officer to be sued because he didn’t know that what he did was wrong. Think about just how wildly inconsistent that is and the sort of message that it sends to people about the double standard and how they are held to a far higher standard of accountability than police officers, when in fact it should be the other way around. And I think there’s a very good reason why people are so angry right now, because they’re really beginning to catch on to how fundamentally unfair so much of our criminal justice system is, and that’s just one example.
The Pro-Government Bias in the Judiciary [17:26]
Bob Zadek: Clark, there has been a lot written about—a lot of scholarship, good, solid scholarship—about to what extent do the courts, and Supreme Court most specifically, to what extent does the Supreme Court in its decisions decide cases based upon what they perceive to be what is good for the country or the right result at this time? That is, they don’t decide cases in a pure constitutional vacuum of just looking at the Constitution as the parchment that it is, but they pay attention to—and how I hate this expression—the “real world.” So what is there about the relationship between the Supreme Court and the world they came from and live in that brought us to this point? It’s so clearly damaging. How did it happen?
Clark Neily: Fantastic question, and I wish I knew the answer. I have some thoughts, but I can’t say that I’m positive about the answer. But I think a couple of points are this: people throw rocks at each other constantly about who’s making up the law and who’s faithfully applying it, and it’s a very easy, you know, sort of bog to get mired down in, and it may not even be that helpful to focus too much on that point. But what is absolutely true is that as an institution, the Supreme Court and the judiciary are relentlessly government-favoring. They are constantly coming up with special exceptions and double standards and made-out-of-whole-cloth rules like the qualified immunity doctrine that almost without exception point in favor of the government, that give the government more deference, more discretion, more room to put its fingers into every little nook and cranny of our life. And you may remember I wrote a whole book about that called Terms of Engagement.
But how it manifests here in the qualified immunity area is that it eliminates really the only effective mechanism of accountability for citizens. Because as you mentioned earlier, criminal prosecution doesn’t work because, even though it happens once in a while like in Minneapolis, but that only happened because of a viral video. Prosecutors have a massive conflict of interest when it comes to enforcing criminal laws against police and rarely do it. And you also pointed out that internal accountability mechanisms like internal affairs or citizens’ review boards, those don’t work either because you’re essentially asking police to decide whether police messed up, and they almost always say no. So with qualified immunity, the Supreme Court has really gutted the only potentially effective avenue of accountability, which is a civil rights action.
And I’ll say one more thing: you asked why this happened. My intuition is this: one of the most distinctive features of the federal judiciary, and also state judiciaries, but I can speak more knowledgeably to the federal judiciary, is the wild imbalance among sitting federal judges of former prosecutors and other government advocates. A very, very high proportion, nearly half of sitting federal judges, spent their formative professional years advocating for government, often as prosecutors. By contrast, only a tiny fraction of sitting federal judges, about 6%, spent their formative years representing individuals, either in criminal cases as defense lawyers or doing the kind of work that I did for the Institute for Justice, which is suing the government on behalf of individuals. So when you have an institution that is so wildly imbalanced between people who have chosen a path, a professional path of advocating for government on the one hand versus people who’ve chosen a professional path of challenging the government on the other, what sort of a jurisprudence do you think that institution is likely to produce?
Bob Zadek: So therefore there is just—and the bias is not obvious, and indeed justices, I think, would, if they were intellectually honest, they would deny that they have that bias. But there is this unconscious bias when you spend your career on one side of the litigation. You just have to, whether you like it or not, in a way that’s almost uncontrollable, you do bring to the bench the life experience. Everybody does. It’s inevitable. It’s human. And therefore, not because they are, to use an offensive phrase but accurate, shilling for the government once they get on the bench, it’s not because that is their mission when they ascend to the bench, but you can’t turn it off. Everybody on earth brings to every conversation their lifetime of experience, and judges are no different. So even those who are determined to do the right thing as a matter of law, they are influenced by that. And I think, Clark, that is your point. And in your experience as a litigator—and you have infinitely more experience than almost everybody else—I don’t think, or I’ll ask it as a question, have you found that bias that you alluded to to be obvious, or is it just there and you can tell it is influencing the decisions?
Clark Neily: It’s both. It’s absolutely palpable. When you’re representing individuals in court, the tendency of judges to favor the government, sometimes just as a matter of pure sort of—they’re following instructions from the Supreme Court and courts of appeal, and so they kind of have to. But I think there’s also an informal tendency to defer to the government, to credit the government’s representations even when they are not credible, and to make it very, very difficult for individuals who are challenging any sort of government action to meet whatever the required standard is. So in my experience as a constitutional litigator, the pro-government mindset among judges is persistent and almost without exception. And I think it’s a huge problem. I think it has influenced the jurisprudence.
And I’ll say one last thing: you’re exactly right. I mean, look, we are all influenced by our life experiences, including our professional experiences. That doesn’t mean that we can’t be unbiased. It doesn’t mean that we can’t try to be neutral. But think about it this way: if you’re a criminal defense attorney and you get called for jury duty on, let’s say, a drug prosecution, is there the slightest chance that you’re going to be seated to that jury? No, because the prosecutor is going to strike you from that jury pool. Same thing if it’s the other way around and you’re a prosecutor who’s been called for jury duty in another criminal prosecution. That defense attorney is going to strike you from the jury. Not because they know for sure that you’re going to sympathize with the side of the case that you work for, but because it’s sufficiently likely that they are not going to take the chance. That’s really what we’re talking about here.
Bob Zadek: Too bad the litigants can’t have a voir dire to strike the judge from the case, but we’re not quite there yet. This is Bob Zadek. I’m spending this morning speaking with Clark Neily. Clark is a vice president at the Cato Institute. He deals with criminal justice issues. He has written Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. When Clark wrote that book, you may recall, he was kind of enough to visit with us.
When we come back from our break, we will explore a very important issue, very timely today with the riots. Nothing is more important for the preservation of civil society than the citizens have a respect for their government and for the laws that regulate their behavior. That respect is in great danger in the aftermath of the imposition or the creation of qualified immunity. And the stories are legion, which Clark will share with us, of how that relationship of citizens to its government is being eroded by pretty egregious cases. So this discussion is not theoretical; it is real. When we come back from our break, the stories will frighten you. We’ll be back in 30 short seconds.
Egregious Examples of Qualified Immunity [27:08]
Bob Zadek: Welcome back to the Bob Zadek Show, longest-running live libertarian talk radio show on all of radio. This morning we are sharing the hour with Clark Neily. Clark is a vice president for criminal justice at the Cato Institute, and he has spent many, many years on the front lines litigating on behalf of the Institute for Justice, the most effective public interest law firm in the country, in the world, in the galaxy. Clark, thank you so much for joining us this Sunday morning.
Now, the subject of qualified immunity—those two words, lots of syllables, sound kind of antiseptic and just a couple of words. But we are talking about a serious issue, one that undermines a citizen’s relationship and feeling towards his or her government in general and the police in particular. The police are special because the police are allowed to carry guns and to use lethal force legally. The rest of us are not. So we have a special relationship with our police. Now, Clark, give us some examples of the abstract concept of qualified immunity. Qualified immunity, as we learned before the break, eliminates probably almost completely—but there are still some cases where the police have lost—but it influences the result of a citizen suing a policeman under a federal statute if the policeman is claimed to have violated a citizen’s constitutionally protected rights. And I should say “policeman,” but the statute itself is not limited to the police, but most of the cases do involve citizens suing the police. So Clark, give us some examples so our friends out there can understand how this works in the courtroom and in actual cases.
Clark Neily: You bet. So let’s start with a case called Kelsay v. Ernst out of Nebraska. A woman named Melanie Kelsay was swimming at a public pool with her children and her boyfriend. They were horsing around, someone misinterpreted what was going on and called the police. The police arrived, they pulled them out of the pool, they’re interviewing Melanie and her boyfriend separately, and it becomes clear that there was no problem, that there was a misunderstanding of what was going on. While she’s being interviewed by the police officer, Melanie Kelsay notices that her 13-year-old daughter is being hassled by one of the patrons of the pool, and so she says to the police officer, “I need to go help my daughter.” And he says, “No, you need to stay and talk to me.” And keep in mind, she’s supposed to be the victim at this point, and she’s denied that there’s any problem. And she says, “I will talk to you, but I need to go help my daughter.” And she turns and begins walking away from the officer, and he comes up behind her, wraps her up in a bear hug—and she’s about five feet tall, clad only in a bathing suit, not armed, not resisting—the officer wraps her up in a bear hug, lifts her up off the ground, turns her upside down and drives her headfirst into the ground, knocking her unconscious and breaking her collarbone—severely breaking it, to the point where she had to have surgeries and plates installed.
She sued, and the Eighth Circuit Court of Appeals that covers Nebraska took the case en banc, meaning the entire court. Usually it’s just three judges; this time it was the whole 12 judges on the court. And it held 8 to 4 that because there was not a preexisting case on point where an officer had done the same thing to someone else under the same circumstances, that qualified immunity applied and threw her case out. That’s an example of how qualified immunity works in real life.
Bob Zadek: And so she had no civil redress against the officer. Now, she could not sue for damages. Now, I should point out a few things. And I want to go back to something—an important point you made before the break. When you have a bad actor—and let’s talk about the police because that’s basically the topic of our show this morning in light of the events with the George Floyd murder—there are three sort of basic controls on bad behavior. The police can be accused of committing a crime, that is of harming—a battery, attempted murder, or whatever crime fits. That is rare to nonexistent because, as Clark pointed out, the criminal justice system does not eat its own in general. The second alternative is internal affairs, a highly ineffective check on bad police behavior. Internal affairs are often—the internal affairs system is often regulated by union contract. We can predict what the union contract, the policeman’s union, would say about internal affairs operation: it will try to neuter the effect. Also, through union contracts, policemen’s bad behavior is often—their record is not available to the general public. So there are lots of protections that the unions build in to protect even bad actor policemen. And the third and last is a civil lawsuit, which ought to have been effective except now, as a result of qualified immunity, the third and last control on bad police behavior is gone.
Now, Clark, is this—the use of qualified immunity to allow police to escape civil liability—is it limited to certain areas of the country? Is it universal that once a policeman gets sued civilly anywhere in the country, the likelihood is that qualified immunity will serve as a shield, shielding the shield-wearer from liability? Or is there—are there some areas of the country where the doctrine of qualified immunity is less viable than in others?
Clark Neily: No, it applies everywhere. It’s a doctrine that is announced and enforced by the U.S. Supreme Court. All lower courts are bound—all lower federal courts are bound to apply it. And so there’s no place in the country where you can, you know, sort of escape qualified immunity, at least if you are attempting to sue a government official under Section 1983, which is the federal civil rights law. There are some states that have a state-level civil rights laws. Some of those states also have qualified immunity at the state level, but not all of them do. So there is some variation among the states, but generally speaking, it’s very, very difficult to sue a state official under state law. And so if you don’t have the federal cause of action, Section 1983, then oftentimes you’re going to be out of luck. And yes, qualified immunity applies in every single Section 1983 case in every single part of the country.
The “Clearly Established” Absurdity [34:30]
Bob Zadek: But here’s a question which stumps me, Clark. Judges—unless you’ve already answered it with your discussion before the break about the professional history of judges before they became judges, many more of them have grown up in the law in the—on the prosecutor’s side of the litigation rather than the defense side—but I’ll let you answer the question. So many normal non-judges, people, have to be offended at these results. And judges, as we said before, are first and foremost, of course, they are humans, and they go home to family and they go to church or synagogue. They have a certain moral code. Aren’t judges—is it too much to expect that judges simply in applying the law would, after giving lip service, if you will, to qualified immunity, find that another case is close enough and let them be reversed on appeal? But most cases don’t go through the appellate process. Why isn’t there more of a judicial motivation to just apply that doctrine strictly and find more, as in the case you’ve described, in favor of the plaintiffs?
Clark Neily: It’s a fantastic question. I wish I knew the answer to it. I don’t know if it’s just sort of a mental predisposition that there’s a sort of a selection mechanism so that the people who become federal judges are just more likely to be sympathetic to the government or what. But I’ll tell you quickly about a case that just came out of the Fifth Circuit, which covers Texas, Louisiana, and Mississippi. And I’m a native Texan. This case involved the pretrial detention of a man in a facility for six days. And the allegation in the complaint—and there’s really apparently no dispute about this—is that they in effect held this man in what amounts to an open sewer. He alleges that every single flat surface of the cell—the floor, the walls, the ceiling—was covered in human excrement. There was no bed, no mattress in the jail cell. There was an open drain that was backing up sewage into it, and he had to sleep on the sewage-covered floor and be fed in the cell that amounted to an open sewer. And again, when he sued, his case was thrown out by the Fifth Circuit Court of Appeals on the premise that because there was no sufficiently close case on point, qualified immunity applied because the right to not be held pretrial in what amounts to an open sewer is not clearly established in that jurisdiction. And the violation itself, which no one really disputed that there was a violation, was not sufficiently clear that you could just sort of say, “Well, listen, you don’t need a case to tell you don’t do this to somebody.” So his case was tossed out, this man who was held pretrial for six days in what amounts to an open sewer in a cell caked with feces on every wall and ceiling, and the court said, “Well, you know, we just don’t have a case on point telling jailers not to hold people in those conditions.” That is how bad this doctrine has gotten, and that’s the mindset of judges that apply it—or many judges that apply it. And it’s hugely problematic because, as we’ve discussed all morning, it really destroys the only meaningful accountability mechanism available to people, the accountability mechanism that they can invoke unilaterally without going on bended knee to some bureaucrat or prosecutor. This is the only way that citizens can enforce their own rights by initiating a civil rights lawsuit, and qualified immunity presents a significant bar to their ability to do that. And that’s why I call it the cornerstone of our near-zero accountability policy for law enforcement.
Judicial Activism and Public Discourse [38:29]
Bob Zadek: And I should mention that, as I said in the introduction to this show, the subject of qualified immunity is—has almost never, those two words have never been part of the public discourse in this country. I learned about it 10 or 11 years ago in my readings of publications such as IJ, such as Cato, within the, if you will, libertarian ecosystem. I’ve learned about it, and it gets written about a lot. But it just never captured the attention of the public as such. Now, the cases might, but not the doctrine. So this is a doctrine which has been written about with scholarship and with passion within the libertarian world. And all of a sudden, the rest of the world discovers it. And the interesting thing about it is the libertarian point of view has always been on the mark, identifying the issue, identifying how real it is. And as you can see from the riots, it is a core issue. The existence of qualified immunity and its aftermath, its result, has caused or contributed to, if you will, the mass protest, the violence, and the looting. There is a—not a dotted line—a straight, bold line between this judge-made principle, not a statute, judge-made principle, and the civil unrest in the country. It is a big deal and a vindication.
Now, Clark, you have written quite a bit about judicial activism. In fact, you have spent your career working on the subject of judicial activism. And the phrase of judicial activism has been at various points in recent history a pejorative or not, used by either the left or the right in describing activist judges. It was first used probably in the 50s during the Warren Court when the Warren Court became very active in legislating from the bench criminal justice reform—one would hope it was reform—and the conservatives were complaining about judicial activism. Is this another example of judicial activism? And if it is, you have urged, you and many others have urged for more judicial activism in many ways. Help us reconcile and fit in the concept of judicial activism—two words that aren’t very descriptive—with the history of qualified immunity.
Clark Neily: Well, thanks for that question. Yeah, so the most important thing we can do here is to understand that judicial activity is not the same thing as judicial activism. When the government violates people’s rights, when it engages in censorship, when it prevents people from worshipping at the church of their choice, when it imposes arbitrary and unreasonable travel bans, we want and we need a judiciary that will step in to actively enforce our constitutional rights and push back against the other branches of government when they violate the Constitution, which they do quite often. So to say that we don’t want an activist judiciary is not to say that we don’t want an active judiciary. Now, activism has a very specific meaning in this context. And what it means, properly defined, is when a court substitutes—a judge substitutes his or her own personal policy preferences for clearly established law. And qualified immunity is one of the best and most glaring examples of judicial activism so defined that you will ever encounter. Because they took a statute, Section 1983, that provides for a broad liability on the part of government officials, including police officers—remember, it is the deprivation of any right—and what the judiciary did was it substituted its own judgment about what would be the ideal policy, and in the judgment of the judiciary, a much narrower scope of liability, and it simply rewrote the statute in effect and took the statute that Congress had written, rewrote it, and produced a different policy with a narrower scope of liability for rights-violating government actors. And that is as clear an example of judicial activism as you could ever hope to see.
Bob Zadek: So that is simply the courts, the Supreme Court, in effect taking a statute, putting a pen to it, adding two words that the legislature who enacted the statute in 1871 didn’t intend and didn’t add, and the court rewriting a statute. And that is an unelected branch of government in effect writing or drafting or revising legislation without the authority to do so. And that is what is so offensive about the concept. The concept itself doesn’t make any sense, but if it was to make sense, it has to be the legislature, not the judiciary, which writes the legislation, because the legislature is answerable to the public. And when they see the results of qualified immunity, theoretically the legislature would react accordingly and would revise the statute.
A Glimmer of Hope: The Supreme Court and Congress [44:24]
Bob Zadek: Now, to take the other side, Clark, to apply and put a positive spin—and I have to force myself to do so, but I will, and I’ll try to do a good job—if I were a cop and I were told I would be personally liable if I violated a citizen’s constitutional rights, well, I’m a cop. I’m not a lawyer. I don’t study con law. I don’t have counsel sitting next to me in the squad car. I have to make decisions quite fast that may affect whether I live or die. I have no time to do legal research, to dust off Lexis and figure out if I’m violating somebody’s constitutionally protected rights. If a policeman is liable for not knowing con law, how do you respond to that policeman’s claim?
Clark Neily: Completely overblown and self-serving to boot. The truth of the matter is that many, if not most, constitutional standards, including the one that comes up the most with civil rights cases against police, which is going to be for excessive use of force, actually have built-in subjectivity language. So the Fourth Amendment prohibits unreasonable searches and seizures, and it’s the seizure part that comes into play when we’re talking about excessive force. And so a police officer in these cases will always have the ability to go in front of a jury and try to explain why he did what he did under the circumstances. So for example, if a police officer, the one in the Nebraska case that I described, can explain why it was that he felt it was necessary to pick up a five-foot-tall, unresisting, unarmed woman, turn her upside down and drive her headfirst into the ground, maybe he can explain to a jury why he felt it was necessary to do that. If he can’t, if he can’t convince 12 people drawn from his own community that the amount of force that he used in that situation was reasonable under the circumstances, then he should be held liable. And he shouldn’t be complaining about being required to submit himself to a process where ultimately 12 people drawn from his own community will get to hear his side of the story, get to hear the injured person’s side of the story, and decide who behaved unreasonably and who did not. Why on earth would anybody complain about being required to participate in the civil jury process, which is one of the greatest products, in my opinion, of the Western Enlightenment tradition? And here you’ve got police and judges and other government officials who’ve just taken it upon themselves to unilaterally say, “Well, that’s just not good enough, and we shouldn’t be requiring police to have to go in front of juries and explain the basis for their conduct that results in oftentimes very serious physical injuries.” And you can tell by the tone of my voice, I reject that emphatically and I reject it completely.
Bob Zadek: What a perfect response. Thank you so much, Clark. The perfect answer. Now, I’d like to, as we regretfully move towards the end, the cutoff of our show, I try to always end on—because that’s my emotional makeup—on a positive note. Now, so we have the protests, we have all the bad actor policemen now in the media every single minute of every single day. And now, this is timely because there is apparently—not apparently, you will explain—some hope for the Supreme Court to fix the mess they have caused. Tell us about what’s going to happen, I think it’s this coming Thursday, if I’m not mistaken.
Clark Neily: Well, it may already have happened, actually. So to take a step back, two years ago, on March 1st, 2018, my colleagues at Cato and I declared that it was our mission to eliminate the qualified immunity doctrine. And we actually had a kickoff event where we had a number of very prominent speakers join us to commemorate that kickoff. What we’ve done since then is we’ve orchestrated the most diverse cross-ideological amicus campaign in history of the Supreme Court, meaning we’ve rounded up ideologically diverse organizations all the way from the NAACP Legal Defense Fund and the ACLU on the one side, all the way including Reason and Cato and Alliance Defending Freedom on the other, to submit amicus briefs in qualified immunity cases to the Supreme Court explaining that the court should take up this issue again and reverse its precedents and eliminate the qualified immunity doctrine.
We know that eight cases involving qualified immunity were taken up at last Thursday’s conference. That’s the meeting at which the Supreme Court decides whether to grant review in a particular case. And we will find out Monday morning at 9:30 Eastern Time whether the court is going to grant review in a qualified immunity case and begin the process of cleaning up its own mess. Now, there’s even better news, and that is that because this is not a constitutional doctrine but purports to be a statutory interpretation, it is also possible for the Congress to fix this problem by amending Section 1983 to make clear that there is no qualified immunity defense. Representative Justin Amash has introduced a bill that does precisely that, and there will be a raft of similar legislation coming down the pike, and I can tell you that with 100% certainty.
Bob Zadek: So we will find out in about 24 hours from now if the Supreme Court will undertake to fix the mess they—not specifically these judges, of course, but justices—but rather the institution, whether the institution will fix the mess that it caused. And one has to say, how could they not? After all, they do watch and read media. How could they not see the direct relationship? And if they do accept cert on one or several cases, however they do it, what will that mean judicially? What will then happen if they do accept cert?
Clark Neily: If they do accept cert in one or more qualified immunity cases, there’ll be a period of briefing where the parties will submit their legal arguments. There will be a very aggressive amicus, meaning friend of the court, briefing campaign that Cato will lead. And the court will set the case or cases for argument sometime this fall. There will be, I would expect, to be one of the most interesting and exciting arguments in many years before the Supreme Court. And we could have a decision as early as potentially, let’s say, early 2021. And I agree with you, by the way: I think the court has a moral obligation at this point to accept cert in one of these qualified immunity cases and begin cleaning up the mess that it created by inventing qualified immunity out of whole cloth. And the court absolutely should not kick the can down the road or try to hand this mess over to Congress.
Bob Zadek: Thank you so much, Clark, for all of the work you have done, for the institutions you have worked for, and we’ll keep our fingers crossed and we’ll be tuned in tomorrow morning to see if the Supreme Court has agreed to help us get out of the mess they created. Thanks to Clark.
Clark Neily: You bet. That was fantastic. Thank you very much.
Bob Zadek: Thanks to Cato, thanks to IJ, and thanks to all my friends for listening. Have a good Sunday.