The Wall Street Journal recently published an op‐ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the raging battle against qualified immunity, a court‐confected doctrine that provides rights‐violating police and other government officials with what Cato has described as an “unlawful shield” against accountability for their misconduct. IJ’s focus on this issue will be a welcome addition to a fight that Cato has been waging for nearly two years with help from an astonishingly cross‐ideological cast of public interest organizations ranging from the ACLU and the NAACP Legal Defense Fund to the Alliance Defending Freedom and the Second Amendment Foundation.
Cato launched its strategic campaign to challenge the doctrine of qualified immunity—an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s — on March 1, 2018. Cato’s kick‐off panel featured Judge Lynn Adelman of the Eastern District of Wisconsin, who has sharply criticized the doctrine; Professor Will Baude, whose enormously influential law review article has formed the backbone of the legal challenge to qualified immunity; and Andy Pincus and Victor Glasberg, two practitioners with ample experience confronting the harsh realities of the doctrine. Shortly after that conference, George Will noted on Meet the Press that there would be a “national discussion” about qualified immunity, “led by the Cato Institute.”
The centerpiece of Cato’s strategic campaign to take down qualified immunity has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. Since launching the campaign in March 2018, Cato has filed dozens of additional amicus briefs in our own name, but we have also organized a massive cross‐ideological alliance of public interest groups opposed to qualified immunity — what Judge Don Willett recently called “perhaps the most diverse amici ever assembled.” This “cross‐ideological brief” was first filed in July 2018, in support of the cert petition in Allah v. Milling, a case involving the illegal and unconstitutional solitary confinement of a pretrial detainee in Connecticut for nearly seven months. So unsettled was the state by the onslaught of amicus support that it settled the case by offering the plaintiff more to dismiss his cert petition than he had been awarded at trial.
A diverse array of lower court judges has also been increasingly critical of qualified immunity, with many explicitly calling for the Supreme Court to reconsider the doctrine. To underscore the incredible ideological breadth of the opposition to qualified immunity, it is worth noting that the judicial critics of the doctrine now include nominees of every single President since Carter, as well as one of the two remaining LBJ appointees on the bench. To give just a few notable examples: