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Immunity Doctrines Have Made the US Constitution Useless — It’s Time to End Them

Overlapping immunity doctrines insulate officials from the consequences of their actions, no matter how egregious.

Overlapping immunity doctrines insulate officials from the consequences of their actions, no matter how egregious.

Oklahoma resident Donald Logsdon was fixing his neighbor’s generator in March 2020 when three deputy United States Marshals snuck up behind him, kicked him in the head and took turns stomping on his body while he was unconscious. The excessive force was a clear-cut constitutional violation, but when Logsdon tried to vindicate his rights in court, a federal judge decided he had no business being there.

Logsdon’s situation isn’t an anomaly. Due to myriad different, often overlapping immunity doctrines, government officials are overwhelmingly insulated from the consequences of their actions, no matter how egregious. The result? People are left with virtually no recourse when their rights are violated, and the Constitution becomes little more than an empty promise.

As Chief Justice John Marshall observed over 200 years ago, the “very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury,” and a government cannot be called a “government of laws, and not of men … if the laws furnish no remedy for the violation of a vested legal right.”

Yet far too often, people find themselves in that exact position. Logsdon had a warrant for his arrest on the day federal agents attacked him — though that doesn’t excuse their behavior. But James King, an innocent college student from Michigan, did nothing except walk on a public sidewalk in broad daylight when members of a law enforcement task force misidentified and brutally beat him. Both Logsdon and King ended up hospitalized.

This is just a snippet of the abuse that government officials routinely get away with.

Want to sue the agency responsible for a constitutional violation? Sorry, the government gets sovereign immunity. How about the officer that actually committed the violation? Qualified immunity.

Did a self-interested prosecutor slap you with a baseless charge? Prosecutorial immunity. Did a corrupt judge violate your right to due process — perhaps by initiating an impromptu raid on your home and ordering the theft of your possessions? Judicial immunity. Would you like to bring a constitutional lawsuit against a federal official (often referred to as a Bivens suit)? De facto absolute immunity.

From unjustified traffic stops and warrantless mail seizures to retaliatory arrests and the actual destruction of people’s homes, government officials consistently try to get away with appalling human rights violations.

Even where Congress has explicitly authorized constitutional claims, like it did for suits against municipalities, badly decided court cases have made it nearly impossible for people to actually exercise those rights. In one particularly devastating example, New York prosecutors brought bogus patient endangerment charges against a group of innocent, immigrant nurses who had been subject to indentured servitude, threatening their livelihoods, all without consequence.

From unjustified traffic stops and warrantless mail seizures to retaliatory arrests and the actual destruction of people’s homes, government officials consistently try to get away with appalling human rights violations. Most of the time, they succeed.

The trouble is, the courts have created a problem that builds upon itself. Because of doctrines like qualified immunity, law enforcement officers can only be held accountable if there is a prior case with facts directly on point that clearly establish a constitutional violation. So how similar do the facts need to be?

Well, in 2019, the Sixth U.S. Circuit Court of Appeals ruled that an officer who sicced a dog on suspect who had already surrendered should be granted qualified immunity because in the previous case, the suspect surrendered by lying “on the ground with his hands out to his side” rather than by raising his hands. “[T]he fit is not perfect,” the judges held. In another case, the Fifth U.S. Circuit Court of Appeals held that a prison guard who pepper-sprayed an incarcerated person “for no reason” should be granted immunity because a guard in a previous case who had been granted immunity used a Taser rather than pepper spray. Thus, the constitutional violation with specific regard to pepper spray hadn’t been “clearly established.”

Because courts tend to decide whether immunity applies before weighing in on the constitutional violation — thus never actually reaching the merits of the claim — we don’t get the buildup of decisions necessary to establish future liability. Instead, we get a merry-go-round of constitutional violations and lack of accountability without any way to get off the ride.

The end of all of this is a system where citizens spend years in court trying to vindicate their rights only to have their cases thrown out because apparently “ignorance of the law” is only an excuse for those charged with enforcing it. In such a system, the Bill of Rights becomes little more than words on a piece of paper. That is not the system our founders created, and it is not the system we should be dealing with today.

The Institute for Justice, the public interest law firm where I work, has responded with a Project on Immunity and Accountability. Besides filing a friend-of-the court brief in the Logsdon case, we have launched multiple challenges to all types of immunity doctrines. The idea is simple: If we the people must follow the law, the government must follow the Constitution.

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