No, Congress Should Not Make Qualified Immunity the Law of the Land

There’s nothing ‘America First’ about shielding bad government officials from accountability.

Protesters surround the police headquarters to protest against police brutality, the killing of George Floyd and were calling for the firing of the police officers involved in the hit-and-run of several protesters the night before, on June 14, 2020 in Richmond, United States. (Photo by Eze Amos/Getty Images)

LAST WEEK, THE AMERICA FIRST POLICY INSTITUTE (AFPI), one of several new policy groups run by acolytes of Donald Trump, published a report calling for Congress to codify “qualified immunity” nationwide. The report’s author, an alumnus of the Trump Department of Homeland Security, Scott G. Erickson, argues that police officers need special legal protections so they can keep their communities safe, that eliminating qualified immunity would be dangerous, and that legislators could find a way to address “the concerns of accountability and transparency” while also lastingly making qualified immunity the law of the land.

But enshrining qualified immunity does not, so to speak, place Americans first. Instead, it places all government officials—prosecutors, agency bureaucrats, and yes, police officers—first, and the American people last.

In the post-George Floyd era, police departments have faced intense public scrutiny, leading to slogans like “defund the police” and “ACAB.” Conservatives recoiled and in turn engineered their own “back the blue” sloganeering. But lost in the shuffle is qualified immunity—a judge-made doctrine that shields all government officials from accountability when they violate one’s constitutional rights. AFPI and others have adopted qualified immunity as their poster child in defending the police and ensuring public safety.

But AFPI’s report leaves out a crucial detail: Qualified immunity does not actually keep Americans safe. Invented by the Supreme Court in 1982 through what conservatives would normally call “judicial activism,” qualified immunity is found nowhere in the Constitution or in federal statutes—judges just made it up. Nonetheless, this powerful doctrine protects government officials when they engage in unreasonable or even malicious acts that violate the Constitution (unless the victim can show their constitutional rights were “clearly established” by an earlier decision involving materially identical facts—a nearly insurmountable legal hurdle). This misconduct can come from anyone in government: a mayor and city attorney who jail a 72-year-old retiree for criticizing the city manager, a child protective services agent who launches a junk investigation against parents after they accuse the county’s employee of sexually abusing their child, or a county road engineer who plays traffic cop and detains a driver for hours. And this misconduct can relate to any constitutional right: the First Amendment right to free speech, the Second Amendment right to bear arms, or the Fourth Amendment right against unreasonable search and seizure.

Good police officers already have other protections under the Constitution—specifically, the Fourth Amendment, which already protects officers who make reasonable mistakes, including in high-stakes situations like arrests or uses of force. As the Supreme Court has recognized, an officer’s mistakes are more likely reasonable when they face “split second decisions—in circumstances that are tense, uncertain, and rapidly evolving.” That is, while the Constitution immunizes good-apple officers from liability, qualified immunity protects the bad apples—the government officials who commit egregious wrongs against American citizens and violate their oaths to uphold and defend the Constitution.

In short, protecting qualified immunity is not necessary to “back the blue,” and AFPI’s own approach reflects this. Earlier this year, AFPI released another report, also written by Erickson, with recommendations for supporting police recruiting and retention. Codifying qualified immunity into federal law was not one of them. Instead, AFPI suggested political and community leaders “reaffirm their commitment to the law enforcement community,” provide “officers with realistic expectations about the job,” and “creat[e] meaningful pathways to career development.” These solutions would help communities retain a proactive police force without needlessly providing an escape hatch to dishonorable government bureaucrats.

Strong, accountable police forces keep Americans safe. But an unchecked, unaccountable government does not. Rather than codify qualified immunity into law, state legislators should pass the “Protecting Everyone’s Constitutional Rights Act”—model legislation from the Institute for Justice (where I work), which Erickson himself cites at the end of his new report. This bill would provide a cause of action against governments—not individual officials—for victims of government abuse. It would allow victims to hold their government accountable for disregarding the Constitution without holding individual officials personally liable. This legislation puts Americans—not government workers—first.