An Unprecedented Opportunity to Revisit Unqualified Immunity

How quickly we went from nation-wide lockdown to nation-wide mass demonstrations and riots!

Perhaps pent-up angst from the lockdowns made the powder-keg of rioting particularly violent, but the fuse of injustice was burning long before the COVID-19 epidemic.

Quite simply, Americans are tired of seeing police get away with murder— figuratively, but sometimes also literally.

Clark Neily has been beating the civil liberties drum for his entire career — first as a constitutional litigator with the Institute for Justice, and more recently as vice president for criminal justice at the Cato Institute.

Cato’s new Unlawful Shield website, dedicated to abolishing qualified immunity, is Clark’s latest effort to shine a light on a seemingly obvious reform. Qualified immunity is a 50-year old doctrine that has protected police officers from civil lawsuits — even when they violate citizen’s constitutional rights.

This leads to a “culture of near-zero accountability for law enforcement,” according to Neily, who says the Supreme Court must reconsider its long-standing interpretation of 42 U.S.C. § 1983. This statute prevents plaintiffs from recovering damages for violations of their constitutional rights unless a government official violated “clearly established” law, which usually requires specific precedent on point. Clark and I will discuss the mischief that has resulted from the Supreme Court’s exercise in judicial creative writing, which pulled those two words – clearly established– out of whole cloth.

As my shows on the response to COVID-19 attempted to highlight, there is always an opportunity that comes with crisis. Civil libertarians should not let this one go to waste.

Follow Clark on Twitter – @ConLawWarrior.