Conservatives who are leery of government power in other contexts often have a blind spot when it comes to police officers. Tough-on-crime instincts, coupled with anger at left-wing critics of police practices, frequently translate into a reflexive “back the blue” stance that is inconsistent with limited government, civil liberties, and the rule of law. Donald Trump’s promise to “restore law and order” by indemnifying police officers “against any and all liability” appeals to that sentiment, even as it underestimates the difficulty of successfully suing police officers and overlooks the fact that cops already are routinely indemnified against damages when plaintiffs manage to overcome the barrier created by qualified immunity.
Qualified immunity bars federal civil rights claims unless they allege misconduct that violated “clearly established” law. A new Institute for Justice (I.J.) report on the consequences of that doctrine further complicates the conventional conservative narrative by debunking the assumption that qualified immunity mainly applies to allegations of police brutality.
In an analysis of 5,526 appeals involving qualified immunity that federal circuit courts heard from 2010 through 2020, I.J. researchers found that half involved lawsuits against other kinds of government officials, including “mayors and city managers, university and school officials, prosecutors and judges, and child protective services workers.” The report reinforces the complaint that qualified immunity frustrates meritorious claims of constitutional violations and casts doubt on the belief that it mitigates the burden of litigation for defendants.
“While police were the most common defendants, fully half of appeals featured other types of government officials, either alongside or instead of police,” data scientist Jason Tiezzi, I.J. deputy litigation director Robert McNamara, and I.J. attorney Elyse Smith Pohl report. “Prison officials made up the next largest share, but in more than one in five of all appeals, or 21%, defendants were neither police nor prison officials.”
Many of the appeals involved claims of excessive force (27 percent) or false arrest (25 percent). But nearly a fifth (18 percent) “encompassed violations of First Amendment rights, including speech, association, and religious liberty.” In total, “only 23% of appeals fit the popular conception of police accused of excessive force.”
What do the other cases look like? Based on a representative sample of 125 First Amendment cases, Tiezzi et al. found that three-fifths “involved plaintiffs alleging premeditated abuse by government officials in retaliation for protected First Amendment activity.” Nearly half involved government workers who “alleged retaliation from their superiors,” while nearly a third were filed by private citizens who “claimed they were targeted for retaliation by government officials.”
Hellbound and Down 