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Imagine asking police officers questions about local news — only to have them throw you in jail for it. Or envision yourself surrounded by police at your home simply because you posted an obvious joke about current events on Facebook. Suppose, even, that you are a public college professor fired because you refused administrators’ demands that you say something you don’t believe. 

These are not mere hypotheticals. Rather, they are just a few recent examples of government officials flagrantly violating Americans’ First Amendment rights. Yet, when each of those individuals sued to hold the responsible officials accountable, the trial court threw out their case.  

Why? A doctrine called qualified immunity. 

Under this legal defense, invented by the Supreme Court, all government officials are — by default — immune from constitutional liability unless the plaintiff can show their rights were clearly established at the time of the violation. Although qualified immunity was intended to help officials do their jobs more efficiently, it ends up shielding government officials from facing a lawsuit even if the officials actually violated the Constitution. 

It is no wonder qualified immunity has been criticized as “.” In practice, the doctrine has essentially nullified accountability for even indisputable violations of constitutional rights,    depriving citizens of a vital remedy for constitutional violations.

For that reason, qualified immunity poses a danger to expressive freedom. Citizens expect courts to follow the Constitution and protect free speech, not officials who trample it. But when courts grant qualified immunity to those who violate the First Amendment, there is little to deter officials from again abusing their power to punish speakers they dislike. 

What is Qualified Immunity?

If you have heard of qualified immunity before, it is probably because of a story about police ducking consequences for using excessive force. In one shocking example, an officer chasing a suspect into a family’s yard tried to shoot the family dog. He missed and instead . A court later ruled that whether or not the officer violated the child’s rights, the officer could not be held liable because no officer had ever been held liable for shooting a child while trying to shoot a dog before. 

It is no wonder qualified immunity has been criticized as “unqualified impunity.”

Yes, you read that right. 

But qualified immunity does not just shield police brutality. First Amendment claims actually  nearly 20% of all qualified immunity cases that make it to the federal courts of appeals — not far behind excessive force and false arrest claims, which each appeared in about 25% of qualified immunity cases. 

Just as qualified immunity impedes lawsuits against  for all kinds of illegal conduct, it thwarts lawsuits against other public officials including public and university administrators who violate individuals’ free speech rights. As a result, it deprives people of the opportunity to obtain monetary damages that could both compensate them for their injuries and deter government actors from engaging in similar conduct in the future.

How does qualified immunity work?

A more robust understanding of qualified immunity requires some unpacking. Let’s start with the federal statute that permits lawsuits against state and local officials for constitutional violations: . Under Section 1983, courts can grant three kinds of relief for constitutional violations:

• Injunctive relief: Make the government stop doing the thing that is violating people’s rights. 
• Declaratory relief: Tell the government that what it has been doing violates the Constitution.
• Damages: Award money to compensate victims for the government’s past constitutional violations.

If the government has stopped violating the Constitution by the time a citizen sues, the first two options are usually unavailable. For that reason, the Supreme Court  that lawsuits to obtain monetary damages from government officials for past constitutional violations are “an important means of vindicating constitutional guarantees.” 

Yet, the Court reasoned that the “effective functioning of government” requires giving certain officials immunity from Section 1983 lawsuits. To that end,  and  have absolute immunity from Section 1983 lawsuits when acting within their authority. That means Americans cannot sue them for any official action they take as part of their job duties. The  is also entitled to absolute immunity from civil damages for official actions taken while in office. And sometimes  are, too.

The rest of government officials — like police officers or college presidents — possess qualified immunity from Section 1983 lawsuits. In short, those officials can avoid a lawsuit only if they reasonably would not have known that what they were doing violated the Constitution. But as courts have developed qualified immunity over time, the defense has become so encompassing that it is nearly absolute.

In , the Supreme Court created the core of the modern qualified- immunity defense. Immunity is what lawyers call an affirmative defense: a legal tool defendants can use to negate liability even if the plaintiff has otherwise proven their case. Before Harlow, if a plaintiff proved government officials had violated the Constitution, the officials could only get qualified immunity if they could prove to a jury that they had been acting in good faith. 

Reasoning that officials should not have to endure the time and expense of trials, the Supreme Court did two things. First, the justices flipped the usual rule that defendants must prove an affirmative defense, putting the burden instead on plaintiffs to prove that defendants are not entitled to qualified immunity. Next, they switched to a standard judges could resolve without juries: Government officials, even if they acted in bad faith, would get qualified immunity as long as they did not violate a “clearly established” right “of which a reasonable person would have known.” 

The “clearly established right” inquiry remains the baseline standard today. But the Supreme Court has not always been consistent in the way it describes how to apply this standard, and thus courts below too often grant immunity for even blatant constitutional violations. Police shouldn’t have to be told not to , , or  — but that’s the world qualified immunity has created.

What’s the problem with qualified immunity? 

Over time, qualified immunity has become so powerful that it protects even those who had plenty of time to understand that their actions would violate the Constitution — and violated it anyway. It lets government officials not only  with impunity but avoid civil liability for  as long as they were the  to do it that way. 

Over time, qualified immunity has become so powerful that it protects even those who had plenty of time to understand that their actions would violate the Constitution — and violated it anyway.

These problems flow largely from courts taking an impossibly rigid view of how plaintiffs can show that a government official violated a “clearly established right.” The Supreme Court, when defining what “clearly established” means, has emphasized  and over  that plaintiffs need not point to a factually identical court decision. The Court also ruled in Hope v. Pelzer (2002) that qualified immunity does not protect officials who commit “obvious violations” — like tying a prisoner to a hitching post for hours in the blazing sun — or violate rights of which they have had “fair warning.” 

But at the same time, the Supreme Court has stated that the existence of the right at issue  “beyond debate” and that qualified immunity  “the plainly incompetent or those who knowingly violate the law.” The Supreme Court more often has  courts that deny qualified immunity than it has courts that  it. 

Because courts below lack clear guidance, plaintiffs have little direction on how to defeat qualified immunity and vindicate their rights. Appeals courts now issue rulings denying qualified immunity in only about a  of cases. Indeed, trial and appeals courts too often choose the path of least resistance, ignoring the Supreme Court’s insistence that plaintiffs need not identify a prior case with identical facts.  and time again, lower courts   officials qualified immunity just because a plaintiff could not cite an identical case. 

In one particularly egregious , the U.S. Court of Appeals for the Fifth Circuit granted qualified immunity to officers who placed a pretrial detainee in a cell with a 30-inch-long telephone cord a day after the same detainee tried to hang himself, despite holding similar conduct unconstitutional in a previous case. The ? In the prior case, the officer placed a suicidal inmate in a cell with loose bed sheets, not a phone cord.

Compounding this problem is the Supreme Court’s instruction that courts may  qualified immunity based only on the “clearly established” question without ruling on whether a constitutional violation occurred. And courts often do just that. 

The result? A constitutional quagmire. Because courts refuse to decide whether officials have violated a particular right, plaintiffs struggle to show a right has been “clearly established.” 

That’s unjust. And it’s no way to protect Americans’ constitutional liberties. 

All of this has led to a one-size-fits-all approach for qualified immunity that regularly shuts the courthouse doors to Americans who endure constitutional violations. Qualified immunity has protected police officers making on-the-spot decisions on whether to , and it has protected others who could have taken the time to deliberate before arresting someone for insulting their department. Courts grant the defense to college administrators whether they are  in the face of a mounting protest or merely preventing a student group from setting up a table outside the student union. 

How does qualified immunity harm expressive liberties? 

The one-size-fits-all approach to qualified immunity leads to absurd results in the First Amendment context, where officials have ample opportunity to avoid violating the Constitution. 

While police officers may face life-or-death situations or choices, or exigent circumstances that make it difficult to determine what is “clearly established,” officials making the day-to-day decisions that impact individuals’ free speech rights simply do not. Nearly  of appeals involving qualified immunity for First Amendment violations allege premeditated conduct by government officials. Those actors have time to stop and consider whether they have “fair warning” of a First Amendment violation, and they should be held accountable when they ignore it.

In , the case that created the modern qualified immunity defense, the Supreme Court acknowledged that obtaining damages from officials who violate the First Amendment is “an important means of vindicating constitutional guarantees.” Still, the Court’s creation of the “clearly established law” standard offered a potential shield to government officials who allegedly fired an employee in retaliation for public statements he had made  as long as they could show that the employee’s right to free speech had not been “clearly established.” From that point forward, courts applying an overly rigid view of “clearly established law” have too often ended up stifling free speech. 

For example, the Supreme Court ruled more than 50 years ago that college students have the same First Amendment rights as the community at large, and other courts have applied that principle to invalidate campus speech codes. Yet, despite that long-settled First Amendment principle, the U.S. Court of Appeals for the Eighth Circuit granted qualified immunity to Arkansas State University administrators who enforced an unconstitutional speech code to prevent student Ashlyn Hoggard from setting up a table to promote her conservative student group outside the student union. When the Supreme Court declined to hear Hoggard’s appeal, Justice Thomas wrote that qualified immunity is “on shaky ground” if it can apply to First Amendment violations in which officials have time to “make calculated choices.” According to Justice Thomas, the Supreme Court has never offered a satisfactory explanation as to why it does. 

Justice Sotomayor has opined that officials often wield qualified immunity as “an absolute shield,” which tells victims “their losses are not worthy of remedy.” Without change, public officials still have all the time in the world to violate people’s free speech rights without consequence. 

Other grants of qualified immunity in First Amendment cases should make any American shake their head. In one recent case, a trial court granted qualified immunity to a sheriff and detective who approved the arrest of a resident for creating a Facebook post that parodied the local COVID-19 lockdown by comparing it to a zombie apocalypse, complete with all-caps text, emojis, and the hashtag “#weneedyoubradpitt.” The U.S. Court of Appeals for the Fifth Circuit reversed that decision, holding the Facebook post did not fall into one of the narrow categories of unprotected speech, like incitement or true threats. Therefore, the detective violated the resident’s “clearly established First Amendment right to engage in speech even when some listeners consider the speech offensive, upsetting, immature, in poor taste, or even dangerous.” That’s a hard-fought win for free speech.

Qualified immunity has also protected college administrators who fired a professor for refusing to sign a public statement admitting to fraud,  police officers  a concerned citizen from livestreaming a traffic stop despite broad consensus among courts that the First Amendment protects the right to record police, and a police lieutenant and detective who orchestrated the arrest of a resident who created a Facebook page parodying their department. The page was live for , and the police had weeks to realize that the page was a parody protected under the First Amendment. But while the Fifth Circuit protected this kind of online speech, the U.S. Court of Appeals for the Sixth Circuit let these officers off the hook.

Justice Sotomayor has  that officials often wield qualified immunity as “an absolute shield,” which tells victims “their losses are not worthy of remedy.” Without change, public officials still have all the time in the world to violate people’s free speech rights without consequence. 

“It is time,” as Justice Sotomayor said, “to restore some reason to a doctrine that is becoming increasingly unreasonable.”

How can qualified immunity be reformed? 

Congress, state legislatures, and the courts all have the power to fix the injustices that qualified immunity causes.

When Congress enacted Section 1983, it included nothing about qualified immunity. Some scholars have argued that Congress  to include additional language eliminating immunity when Section 1983 was published in 1874. In any case, Congress could pass a law ending qualified immunity in Section 1983 cases. Indeed, in recent sessions of Congress, legislators in both the  and  have introduced bills to end qualified immunity. 

No one should have to suffer a violation of their civil rights at the hands of the government.

State and local governments could expand remedies for violations of state constitutions and bar qualified immunity in those cases. In 2020, Colorado  authorizing civil suits against police officers who violate the Colorado Constitution, and lawmakers expressly prohibited the use of qualified immunity as a defense. In 2021, New Mexico . 

Even local governments can help limit qualified immunity’s reach. For instance, New York City created a  granting the right to sue for unreasonable searches and seizures and excessive force, prohibiting qualified immunity as a defense.  

The courts can also help, of course. Since the Supreme Court created qualified immunity, it can also abolish it. Short of that, it could rein in qualified immunity’s worst excesses. For example, the Court could, at the very least, recognize that qualified immunity is not rooted in a one-size-fits-all doctrine. Because the qualified immunity test hinges on “fair warning,” its purported rationale weakens for public officials who have ample time to consider the First Amendment implications of their actions when compared to those who make split-second decisions when facing a life-or-death emergency.

The Supreme Court should also reaffirm the “fair warning” and “obvious” violation standards it announced in Hope v. Pelzer to prevent some of the most egregious uses of qualified immunity to avoid liability. This is especially important in the First Amendment context, where long-standing principles protecting expressive freedom undoubtedly limit officials’ power to punish expression. 

In addition, the Supreme Court could reinstate the  that courts first determine whether government officials violated the Constitution before analyzing the “clearly established law question.” This reform would help ensure that courts create law that clearly establishes rights, giving future plaintiffs a fighting chance to beat qualified immunity defenses. Lower courts can also do this on their own initiative, and some already do,  constitutional violations despite granting qualified immunity and even expressly holding that, , the right at issue will be . 

No one should have to suffer a violation of their civil rights at the hands of the government. And suing the government officials responsible is sometimes the only way to make sure it doesn’t happen again. Sometimes courts get it right and hold officials accountable, but that’s not something we can currently count on, given the way qualified immunity works. 

If something doesn’t change, qualified immunity will continue to undermine the protections of the First Amendment, leaving our rights without a remedy.