Just a few years ago, “qualified immunity” was an obscure legal concept known only to a small handful of lawyers and legal scholars. Now, it’s a household term. Uniting advocacy groups and leaders from across the political spectrum, the Cato Institute demonstrated how qualified immunity allows government officials to violate the civil rights of citizens with impunity.
They have been so successful that a 2020 survey by the Cato Institute and YouGov found that 63% of Americans favor eliminating the abusive legal loophole, and legislative efforts to ban qualified immunity are picking up steam. Several jurisdictions—including Colorado, New Mexico, and New York City—have already banned the legal defense, and bills to that effect have been introduced at the national level by members of Congress representing three political parties. The Cato Institute’s efforts to eliminate qualified immunity restore rights to every American and give new energy to the creed “liberty and justice for all.”
“America needs a criminal justice system that lives up to its name, honors the Constitution, and inspires public confidence. But that’s not possible as long as the system holds police and other government officials to a vastly lower standard of accountability than they hold the rest of us,” said Peter Goettler, president and CEO of the Cato Institute. “Eliminating qualified immunity is essential to restoring Americans’ trust in the criminal justice system.”
Since 1982, qualified immunity has allowed government employees, especially police officers, to act with almost no accountability. This Supreme Court invention regularly shields government officials from civil liability, even when they have violated someone’s constitutional rights. To prevent qualified immunity from stopping their case in its tracks, a plaintiff generally must show that their rights were violated in nearly the same way as a previous case in the same jurisdiction. Even if there is no question that a citizen’s rights were indeed infringed, a judge will grant qualified immunity if the case does not meet that very stringent standard. This system provides an enormous legal loophole for police officers, denies justice to victims, and allows police misconduct to be swept under the rug.
Recognizing that this lack of accountability has led to the death and injury of thousands of Americans, in 2018, the Cato Institute—an Atlas Network partner—chose to make the elimination of qualified immunity one of the top goals of its Project on Criminal Justice. To that end, they filed amicus briefs in the courts, met with legislators and their staff, and worked to get the issue in front of the public, making a niche legal concept accessible to everyday Americans.
The Cato Institute has intentionally worked across party and ideological lines to build momentum for eliminating qualified immunity. For example, they filed several amicus brief in the Supreme Court on behalf of a diverse array of public policy groups, including the ACLU, NAACP, the Alliance Defending Freedom, and the Second Amendment Foundation. This striking display of solidarity between starkly different organizations demonstrates a powerful and widely supported opposition to the Supreme Court’s qualified immunity case law. The Cato Institute has also mobilized cultural figures like athletes and entertainers, business icons, filmmakers, and the owners of Ben & Jerry’s Ice Cream in the movement to defend civil rights and the rule of law.
By every indicator, Cato Institute’s campaign is working.
Survey data indicates that an increasing share of Americans favor abolishing qualified immunity, reaching 63% in Cato’s most recent research. That momentum is reflected in legislative efforts. Several states have passed laws that create new state-level civil rights laws that do not permit qualified immunity as a defense. Federal lawmakers, including former Rep. Justin Amash (L–MI), Sen. Mike Braun (R–IN), Sen. Cory Booker (D–NJ), and Rep. Karen Bass (D–CA) have introduced legislation at the national level to reform or eliminate the doctrine. Judges throughout the U.S. have displayed an increasing skepticism toward qualified immunity, and pressure to overturn the doctrine is mounting on the Supreme Court. Though the Court has not yet taken steps to reconsider the doctrine entirely, two recent rulings in which the Justices vacated lower-court decisions granting immunity seem to suggest a changing attitude on the issue.
For the Cato Institute, building a culture of accountability by eliminating qualified immunity is an essential step toward reversing the crisis of confidence in law enforcement. This legal shield holds those in society with the most authority to the lowest standard when they abuse their power. This has undermined public trust in law enforcement and exempted them from the rule of law by creating a legal double standard. Reforming the American criminal justice system by eliminating qualified immunity would both recognize the dignity of—and defend human and civil rights for—all Americans.
In an effort to increase safety, decrease violent confrontations, and actualize the United States’ commitment to inalienable rights, the Cato Institute continues to campaign for ending qualified immunity in more states as well as at the federal level.
About Cato Institute:
The mission of Cato Institute is to originate, disseminate, and increase understanding of public policies based on the principles of individual liberty, limited government, free markets, and peace.
About Atlas Network:
Atlas Network increases global prosperity by strengthening a network of independent partner organizations that promote individual freedom and are committed to identifying and removing barriers to human flourishing.
About Atlas Network’s Templeton Freedom Award and the additional 2021 finalists:
Awarded since 2004, Atlas Network’s Templeton Freedom Award is named for the late investor and philanthropist Sir John Templeton. The award annually honors his legacy by identifying and recognizing the most exceptional and innovative contributions to the understanding of free enterprise and the public policies that encourage prosperity, innovation, and human fulfillment via free competition. The award is generously supported by Templeton Religion Trust and will be presented during Atlas Network’s Freedom Dinner on December 14 in Miami, Florida, at loanDepot (Miami Marlins) park. The winning organization will receive a $100,000 prize, and five additional finalists will each receive $20,000 prizes. The finalists for Atlas Network’s 2021 Templeton Freedom Award are:
Cardinal Institute for West Virginia Policy (Charleston, West Virginia), for their work on education reform;
Cato Institute (Washington, D.C.), for their work to eliminate qualified immunity;
Centre for Civil Society (New Delhi, India), for their work to secure legal protections for street vendors;
Centre for Development and Enterprises (Bujumbura, Burundi), for the Fungua Njia (“Open Road”) project;
Libertas Institute (Lehi, Utah), for their regulatory sandbox project;
Institute of Economic Affairs (London, U.K.), for their work to foster free trade in the United Kingdom.
