No.

23-93

In the Supreme Court of the United States

__________
KEVION ROGERS,
Petitioner,
v.

JEFFREY JARRETT, et al.,

Respondents.
__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

__________
BRIEF OF THE CATO INSTITUTE AS AMICUS
CURIAE IN SUPPORT OF PETITIONER
__________

Clark M. Neily III

Counsel of Record
Matthew P. Cavedon
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, DC 20001
(202) 425-7499
[email protected]

August 31, 2023

 i

TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... iii
INTEREST OF AMICUS CURIAE ............................. 1
SUMMARY OF ARGUMENT ..................................... 1
ARGUMENT ................................................................ 3
I. MODERN QUALIFIED IMMUNITY
DOCTRINE IS UNTETHERED FROM
ANY STATUTORY OR HISTORICAL
JUSTIFICATION. ............................................. 3
A. The text of Section 1983 does not
provide for any kind of immunity ............... 3
B. From the Founding Era through the
passage of Section 1983, good faith
was not a general defense to
constitutional torts. ..................................... 4
C. In the nineteenth century, good
faith was relevant, at most, to
merits. .......................................................... 8
D. As enacted by Congress, Section
1983 forecloses qualified immunity. ......... 11
II. QUALIFIED IMMUNITY HARMS
PUBLIC OFFICIALS BY ERODING
PUBLIC TRUST AND
UNDERMINING THE RULE OF
LAW. ................................................................ 12
III.STARE DECISIS SHOULD NOT
PREVENT THIS COURT FROM
REVISITING QUALIFIED
IMMUNITY. .................................................... 19
 ii

A. Maintaining qualified immunity

harms judicial legitimacy. ......................... 19
B. Qualified immunity rests upon
faulty empirical assumptions. ................... 21
CONCLUSION .......................................................... 24
 iii

TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Myers, 182 F. 223 (C.C.D. Md.
1910) ..................................................................... 7, 9
Biden v. Nebraska, 143 S. Ct. 2355 (2023) ............... 20
Cope v. Cogdill, 142 S. Ct. 2573 (2022) ..................... 16
Cornelia T.L. Pillard, Taking Fiction
Seriously: The Strange Results of Public
Officials’ Individual Liability under Bivens,
88 GEO. L.J. 65 (1999) ............................................ 22
Crawford-El v. Britton, 523 U.S. 574 (1998) ...... 21, 24
Dobbs v. Jackson Women’s Health Org., 142
S. Ct. 2228 (2022) ............................................. 20, 21
Filarsky v. Delia, 566 U.S. 377 (2012) ........................ 8
Forrester v. White, 484 U.S. 219 (1988) ................ 4, 22
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ......... 10, 22
Hope v. Pelzer, 536 U.S. 730 (2002) .......................... 23
Kisela v. Hughes, 138 S. Ct. 1148 (2018) .................. 20
Little v. Barreme, 6 U.S. (2 Cranch) 170
(1804) .................................................................... 5, 6
Malley v. Briggs, 475 U.S. 335 (1986) ............... 3, 4, 12
Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803) ...................................................................... 24
Miller v. Horton, 26 N.E. 100 (Mass. 1891) ................ 6
Myers v. Anderson, 238 U.S. 368 (1915) ............... 7, 10
Pearson v. Callahan, 555 U.S. 223 (2009) .......... 17, 23
 iv

Pierson v. Ray, 386 U.S. 547 (1967) ...................... 9, 11

Ross v. Blake, 578 U.S. 632 (2016) .............................. 3
Scheuer v. Rhodes, 416 U.S. 232 (1974) .................... 10
South Dakota v. Wayfair, Inc., 138 S. Ct. 2080
(2018) ...................................................................... 24
The Marianna Flora, 24 U.S. (11 Wheat.) 1
(1826) ........................................................................ 8
Trump v. Hawaii, 138 S. Ct. 2392 (2018) ................. 20
West Virginia v. EPA, 142 S. Ct. 2587 (2022) ........... 21
Westfall v. Ervin, 484 U.S. 292 (1988) ...................... 24
Wood v. Strickland, 420 U.S. 308 (1975) .................. 11
Wyatt v. Cole, 504 U.S. 158 (1992) ............................ 20
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ............. 12, 20
Statutes
42 U.S.C. § 1983 ........................................................... 3
Other Authorities
Aaron L. Nielson & Christopher J. Walker, A
Qualified Defense of Qualified Immunity,
93 NOTRE DAME L. REV. 1853 (2018) ..................... 11
ABC News, Alton Sterling Shooting Cellphone
Video, YOUTUBE (July 6, 2016) .............................. 13
ABC News, Philando Castile Police Shooting
Video Livestreamed on Facebook, YOUTUBE
(July 7, 2016) .......................................................... 13
Adam Shaw, Barr Sounds Call to Push Back
against Anti-Cop Attitudes, Adopt ‘Zero
Tolerance’ to Resisting Police, FOX NEWS
(Feb. 27, 2020) ........................................................ 18
 v

Aimee Ortiz, Confidence in Police Is at Record

Low, Gallup Survey Finds, N.Y. TIMES
(Aug. 12, 2020) ................................................. 14, 15
Akhil Reed Amar, Of Sovereignty and
Federalism, 96 YALE L.J. 1425 (1987) ..................... 5
Alexander A. Reinert, Qualified Immunity’s
Flawed Foundation, 111 CALIF. L. REV. 201
(2023) ...................................................................... 11
Ann Woolhandler, Patterns of Official
Immunity and Accountability, 37 CASE W.
RES. L. REV. 396 (1986) ............................................ 5
David E. Engdahl, Immunity and
Accountability for Positive Governmental
Wrongs, 44 U. COLO. L. REV. 1 (1972) ............. 5, 6, 9
Derek Willis et al., The NYPD Files,
PROPUBLICA, (July 26, 2020) ................................. 14
Fred O. Smith, Abstention in the Time of
Ferguson, 131 HARV. L. REV. 2283 (2018) ............. 17
Gary Langer, Confidence in Police Practices
Drops to a New Low: POLL, ABC NEWS
(Feb. 3, 2023) .......................................................... 15
Inst. on Race & Justice, Northeastern Univ.,
Promoting Cooperative Strategies to Reduce
Racial Profiling (2008) ........................................... 18
J. David Goodman & Al Baker, Wave of
Protests After Grand Jury Doesn’t Indict
Officer in Eric Garner Chokehold Case,
N.Y. TIMES (Dec. 3, 2014)....................................... 16
 vi

James E. Pfander & Jonathan L. Hunt,

Public Wrongs and Private Bills:
Indemnification and Government
Accountability in the Early Republic, 85
N.Y.U. L. REV. 1862 (2010) .................................. 5, 6
JAMES E. PFANDER, CONSTITUTIONAL TORTS
AND THE WAR ON TERROR (2017) .............................. 5

Jeffrey M. Jones, Confidence in U.S. Supreme

Court Sinks to Historic Low, GALLUP (June
23, 2022) ................................................................. 19
Joanna C. Schwartz, Police Indemnification,
89 N.Y.U. L. REV. 885 (2014) ................................. 22
Joanna C. Schwartz, Qualified Immunity’s
Boldest Lie, 88 U. CHI. L. REV. 605 (2021) ............. 23
Joanna C. Schwartz, What Police Learn from
Lawsuits, 33 CARDOZO L. REV. 841 (2012)............. 23
John Kelly & Mark Nichols, Tarnished Brass:
Search the List of More than 30,000 Police
Officers Banned by 44 States., USA TODAY
(last updated June 27, 2022) ................................. 14
Julie Tate et al., Fatal Force, WASH. POST
DATABASE ................................................................ 13
Kimberly Kindy, Insurers Force Change on
Police Departments Long Resistant to It,
WASH. POST (Sept. 14, 2022) .................................. 22
Lydia Saad, Historically Low Faith in U.S.
Institutions Continues, GALLUP (July 6,
2023) ....................................................................... 15
Max P. Rapacz, Protection of Officers Who Act
under Unconstitutional Statutes, 11 MINN.
L. REV. 585 (1927) .................................................... 9
 vii

Mike Baker et al., Three Words. 70 Cases. The

Tragic History of ‘I Can’t Breathe.’, N.Y.
TIMES (June 29, 2020) ............................................ 15
N.Y. Times, Walter Scott Death: Video Shows
Fatal North Charleston Police Shooting,
YOUTUBE (Apr. 7, 2015) ......................................... 14
Nathan DiCamillo, About 51,000 People
Injured Annually By Police, Study Shows,
NEWSWEEK (Apr. 19, 2017) .................................... 13
Police Misconduct Registry, UNIV. OF S. CAL.
PRICE SCH. OF BUS. SAFE COMMUNITIES
INITIATIVE (last updated Apr. 5, 2023) .................. 14
Rich Morin et al., PEW RSCH. CTR., Behind the
Badge (2017) ..................................................... 15, 18
Rick Rouan, Fact check: Police Rarely
Prosecuted for On-Duty Shootings, USA
TODAY (June 21, 2021) ........................................... 15
Samuel Bourgeois, Comment, Mental Illness,
Fourteenth Amendment Violations, and the
Insurmountable Threshold to Overcome
Qualified Immunity—Cope v. Cogdill, 3
F.4th 198 (5th Cir. 2021), 18 J. HEALTH &
BIOMED. L. 223 (2022) ............................................ 16
Scott A. Keller, Qualified and Absolute
Immunity at Common Law, 73 STAN. L.
REV. 1337 (2021) .............................................. 10, 11
Sunil Dutta, I’m a Cop. If You Don’t Want to
Get Hurt, Don’t Challenge Me., WASH. POST
(Aug. 19, 2014) ....................................................... 19
 viii

U.S. DEP’T OF JUST., INVESTIGATION OF THE

FERGUSON POLICE DEPARTMENT (Mar. 4,
2015) ....................................................................... 17
William Baude, Is Qualified Immunity
Unlawful?, 106 CALIF. L. REV. 45 (2018) ..... 4, 5, 7, 8
William Baude, Is Quasi-Judicial Immunity
Qualified Immunity?, 74 STAN. L. REV.
ONLINE 115 (2022) .................................................. 10
 1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy
research foundation founded in 1977 and dedicated to
advancing the principles of individual liberty, free
markets, and limited government. Cato’s Project on
Criminal Justice focuses on the scope of criminal
liability, the proper and effective role of police in their
communities, the protection of constitutional and
statutory safeguards for criminal suspects and
defendants, citizen participation in the criminal
justice system, and accountability for law
enforcement.
Amicus’s interest in this case arises from the lack
of legal justification for qualified immunity, the
deleterious effect it has on the ability of people to
vindicate their constitutional rights, and the
subsequent erosion of accountability among public
officials that the doctrine encourages.
SUMMARY OF ARGUMENT
Over the last half-century, the doctrine of qualified
immunity has sharply diverged from the statutory and
historical framework on which it is supposed to be
based. The codified text of 42 U.S.C. § 1983 (“Section
1983”) makes no mention of immunity, and the
common law of 1871 did not include the sort of across-
the-board defense for all public officials that
characterizes qualified immunity today. Though
recent scholarship indicates some disagreement over
the scope of certain good-faith immunities at common

1Rule 37 statement: All parties were timely notified of the filing

of this brief. No part of this brief was authored by any party’s
counsel, and no person or entity other than Amicus funded its
preparation or submission.
 2

law, there is no dispute that the modern “clearly

established law” standard lacks historical support.
And the text of Section 1983 as originally enacted by
Congress forecloses qualified immunity.
Contemporary qualified immunity doctrine is
therefore unmoored from any lawful justification.
The need for correction of this misbegotten doctrine
is especially urgent today, at a time when public trust
in our government institutions has fallen to record
lows. A civil action under 42 U.S.C. § 1983 is
frequently the only way for a victim of official
misconduct to vindicate federally guaranteed rights.
But qualified immunity often bars even those
plaintiffs who have indisputably suffered a violation of
rights protected by the Constitution and made
actionable by Section 1983 from remedying the wrong
they have suffered at the hands of the state: harm, but
no foul. Qualified immunity thus enables public
officials who violate federal law to sidestep their legal
obligations to the victims of their misconduct. In so
doing, the doctrine corrodes the public’s trust in
government officials—and members of law
enforcement in particular—making on-the-ground
policing more difficult and dangerous for all officers,
including those who consistently respect their
constitutional obligations.
This Court has not been spared the crisis of
confidence in public institutions. Recognizing
Congress’s prerogatives in enacting Section 1983 by
abolishing qualified immunity would help restore it.
The Court should reverse the decision below.
 3

ARGUMENT
I. MODERN QUALIFIED IMMUNITY
DOCTRINE IS UNTETHERED FROM ANY
STATUTORY OR HISTORICAL
JUSTIFICATION.
A. The text of Section 1983 does not provide
for any kind of immunity.
“Statutory interpretation . . . begins with the
text . . . .” Ross v. Blake, 578 U.S. 632, 638 (2016). Few
judicial doctrines have deviated so sharply from this
axiomatic proposition as qualified immunity. As
currently codified and in relevant part, Section 1983
provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured . . . .
42 U.S.C. § 1983.2
Notably, “the statute on its face does not provide for
any immunities.” Malley v. Briggs, 475 U.S. 335, 342
(1986). The operative language just says that any
person acting under state authority who causes the
violation of a protected right “shall be liable to the
party injured.”

2 The codified version of Section 1983 omits sixteen crucial

words—enacted by Congress and signed by President Grant, and
so binding on this Court—that foreclose qualified immunity. See
discussion infra at Part I.D.
 4

This unqualified textual command makes sense in

light of the statute’s historical context. Section 1983
was first passed by the Reconstruction Congress as
part of the 1871 Ku Klux Klan Act, itself “part of a
suite of ‘Enforcement Acts’ designed to help combat
lawlessness and civil rights violations in the southern
states.”3 This statutory purpose would have been
undone by qualified immunity. The Fourteenth
Amendment itself had only been adopted three years
earlier, in 1868, and the full implications of its broad
provisions were not “clearly established law” by 1871.
If Section 1983 had been understood to incorporate
qualified immunity, then Congress’s attempt to
address rampant civil rights violations in the post-war
South would have been toothless.
Of course, no law exists in a vacuum, and a statute
will not be interpreted to extinguish by implication
longstanding common-law legal defenses. See
Forrester v. White, 484 U.S. 219, 225–26 (1988). But
the common law of 1871 did not, in fact, provide for
qualified immunity.
B. From the Founding Era through the
passage of Section 1983, good faith was
not a general defense to constitutional
torts.
Qualified immunity is a generalized good-faith
defense for all public officials, shielding “all but the
plainly incompetent or those who knowingly violate
the law.” Malley, 475 U.S. at 341. But the relevant
legal history does not justify importing any such
defense into Section 1983; on the contrary, the sole

3See William Baude, Is Qualified Immunity Unlawful?, 106

CALIF. L. REV. 45, 49 (2018)..
 5

historical defense in constitutional-tort suits was

legality.4
In the early years of the Republic, constitutional
claims typically arose as part of suits to enforce
common-law rights. For example, an individual might
sue a federal officer for trespass, the defendant would
claim legal authorization as a federal officer, and the
plaintiff would in turn claim the trespass was
unconstitutional in order to overcome this defense.5
Such Founding-era lawsuits did not permit a good-
faith defense.6
The clearest example of this principle is Chief
Justice Marshall’s opinion in the statutory case Little
v. Barreme, 6 U.S. (2 Cranch) 170 (1804).7 The federal
law at issue authorized seizure only of a ship going to
a French port, but President Adams had issued
broader instructions to also seize ships coming from
French ports. See id. at 178. The question was whether

4 See Baude, supra, at 55–58.

5See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE
L.J. 1425, 1506–07 (1987). Of course, until the Fourteenth
Amendment, “constitutional torts” were committed almost
exclusively by federal officers.
6See generally JAMES E. PFANDER, CONSTITUTIONAL TORTS AND
THE WAR ON TERROR 3–14, 16–17 (2017); Ann Woolhandler,
Patterns of Official Immunity and Accountability, 37 CASE W.
RES. L. REV. 396, 414–22 (1986); David E. Engdahl, Immunity
and Accountability for Positive Governmental Wrongs, 44 U.
COLO. L. REV. 1, 14–21 (1972).
7 See James E. Pfander & Jonathan L. Hunt, Public Wrongs and
Private Bills: Indemnification and Government Accountability in
the Early Republic, 85 N.Y.U. L. REV. 1862, 1863 (2010) (“No case
better illustrates the standards to which federal government
officers were held . . . .”).
 6

a captain’s reliance on the presidential instructions

was a defense against liability for a seizure that
violated the federal law.
This Court seriously considered—but ultimately
rejected—such a defense, which was based on the very
rationales that now support qualified immunity. Chief
Justice Marshall explained that “the first bias of my
mind was very strong in favour of the opinion that
though the instructions of the executive could not give
a right, they might yet excuse from damages.” Id. at
179. He noted that the defendant had acted in good-
faith reliance and seized the ship “with pure
intention.” Id. Nevertheless, the Court held that “the
instructions cannot change the nature of the
transaction, or legalize an act which without those
instructions would have been a plain trespass.” Id. The
officer’s only defense was legality, not good faith.
This “strict rule of personal official liability, even
though its harshness to officials was quite clear,”8
persisted throughout the nineteenth century. Its
severity was mitigated by congressional
indemnification. But judicially, courts continued to
9

hold public officials liable for unconstitutional conduct

without adopting a good-faith defense. See, e.g., Miller
v. Horton, 26 N.E. 100, 100–01 (Mass. 1891) (per
Holmes, J.) (holding liable officials for killing an
animal they mistakenly thought diseased, even
though they were ordered to do so by commissioners).
Most importantly, this Court rejected a good-faith
defense to Section 1983 liability. In Myers v. Anderson,

8 Engdahl, supra, at 19.

9Pfander & Hunt, supra, at 1867 (noting that Congress granted
about 60 percent of indemnification petitions).
 7

238 U.S. 368 (1915), the Court considered a suit

against election officers who had refused to register
Black voters under a “grandfather clause” statute,
thereby violating the Fifteenth Amendment. Id. at
377–78. The defendants argued that they could not be
liable for money damages under Section 1983 because
they acted on a good-faith belief in the statute’s
constitutionality.10 The Myers Court noted that “[t]he
non-liability . . . of the election officers for their official
conduct is seriously pressed in argument,” but it held
that the matter was “disposed of” by the ruling holding
such statutes unconstitutional “and by the very terms”
of Section 1983. Id. at 378–79. The defendants violated
the plaintiffs’ constitutional rights, so they were
liable—period.
While Myers did not elaborate much on this point,
the lower court decision it affirmed was more explicit:
[A]ny state law commanding such deprivation or
abridgment is nugatory and not to be obeyed by
any one; and any one who does enforce it does so
at his known peril and is made liable to an action
for damages by the simple act of enforcing a void
law to the injury of the plaintiff in the suit, and
no allegation of malice need be alleged or proved.
Anderson v. Myers, 182 F. 223, 230 (C.C.D. Md. 1910).
Such rejection of any general good-faith defense “is
exactly the logic of the founding-era cases, alive and
well in the federal courts after Section 1983’s
enactment.”11

10See Br. for Pls. in Error at 23–45, Myers, 238 U.S. at 368 (Nos.
8–10).
11 Baude, supra, at 58 (citation omitted).
 8

C. In the nineteenth century, good faith was

relevant, at most, to merits.
The Court’s primary rationale for qualified
immunity is the purported existence of similar
immunities that were well-established in the common
law of 1871. See, e.g., Filarsky v. Delia, 566 U.S. 377,
383 (2012) (defending qualified immunity on the
ground that “[a]t common law, government actors
were afforded certain protections from liability”). But
although there is some disagreement regarding the
extent to which “good faith” was relevant in common-
law suits, no possible reading of that precedent could
justify modern qualified immunity.
Nineteenth-century common law did account for
“good faith” in many instances, but those defenses
were generally incorporated into the elements of
particular torts.12 Good faith might be relevant to
merits, but it was not the sort of freestanding
immunity for all public officials that characterizes the
doctrine today.
For example, The Marianna Flora, 24 U.S. (11
Wheat.) 1 (1826), held that a naval officer was not
liable for capturing a ship that had attacked his
schooner under an honest, but mistaken, belief of self-
defense. See id. at 39. The Court found that the officer
“acted with honourable motives, and from a sense of
duty to his government” and declined to “introduce a
rule harsh and severe in a case of first impression.” Id.
at 52, 56. But this exercise of judicial “conscientious
discretion” was justified as a traditional part of
admiralty jurisdiction. Id. at 54–55. Good faith was
incorporated into the substantive rules of capture and

12 See generally Baude, supra, at 58–60.

 9

maritime tort law. It was not a separate and

freestanding defense.
As the Court similarly explained in Pierson v. Ray,
386 U.S. 547 (1967), an officer who arrested someone
in good faith, with probable cause to arrest, simply did
not commit the common-law tort of false arrest (even
if the arrestee was innocent). Id. at 556–57. But this
was not a protection from liability for unlawful
conduct. Pierson, however, contributed to modern
qualified-immunity doctrine when it extended the
defense to include a good-faith belief in the legality of
the underlying statute. See id. at 555.
Even this first extension of the good-faith shield
was questionable. As discussed above, the baseline
historical rule at the Founding and in 1871 was strict
liability for constitutional violations. See Anderson,
182 F. at 230 (holding that whoever enforces an
unconstitutional statute “does so at his known peril
and is made liable to an action for damages by the
simple act of enforcing a void law”).13 And of course,
the Court had already rejected incorporation of a good-
faith defense into Section 1983 in the Myers case—
which Pierson failed to mention, much less discuss.
Nevertheless, the Pierson Court at least grounded
its decision on the premise that the analogous tort at
issue (false arrest) incorporated a good-faith defense at

13See also Engdahl, supra, at 18 (noting that a public official “was

required to judge at his peril whether his contemplated act was
actually authorized” and whether “the state’s authorization-in-
fact . . . was constitutional”); Max P. Rapacz, Protection of Officers
Who Act under Unconstitutional Statutes, 11 MINN. L. REV. 585,
585 (1927) (“Prior to 1880 there seems to have been absolute
uniformity in holding officers liable for injuries resulting from the
enforcement of unconstitutional acts.”).
 10

common law. But subsequent qualified immunity

cases discarded even this loose tether to history. In
1974, the Court abandoned historical reasoning in
favor of policy considerations. See Scheuer v. Rhodes,
416 U.S. 232, 247 (1974). Most importantly, in 1982,
the Court disclaimed any reliance on the defendant’s
beliefs or intentions, instead basing qualified
immunity on “the objective reasonableness of an
official’s conduct, as measured by reference to clearly
established law.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982).
A recent article by Scott Keller does argue—in
contrast to what he calls “the prevailing view among
modern commentators”—that executive officers in the
mid-nineteenth century enjoyed a more general,
freestanding immunity for discretionary acts not done
in malice or bad faith.14 But even if he is correct,15
there is strong reason to doubt whether Section 1983
itself was understood to incorporate any such
immunity. After all, the Myers Court refused to apply
any such defense to Section 1983. See Myers, 238 U.S.
at 378–79.
Moreover, Keller himself acknowledges that the
modern “clearly established law” standard is at odds
even with his historical interpretation because

14Scott A. Keller, Qualified and Absolute Immunity at Common

Law, 73 STAN. L. REV. 1337, 1344 (2021).
15Will Baude has argued that Keller’s sources establish at most
a common-law basis for a much narrower legal defense of “quasi-
judicial immunity,” such that whatever historical “immunity”
Keller identifies has very little in common with modern qualified
immunity. See generally William Baude, Is Quasi-Judicial
Immunity Qualified Immunity?, 74 STAN. L. REV. ONLINE 115
(2022).
 11

“qualified immunity at common law could be

overridden by showing an officer’s subjective improper
motive.”16 Even the foremost academic defenders of
qualified immunity, then, recognize that the modern
doctrine is historically flawed in this key regard. See
also Aaron L. Nielson & Christopher J. Walker, A
Qualified Defense of Qualified Immunity, 93 NOTRE
DAME L. REV. 1853, 1868 (2018) (“We agree that, as a
historical matter, the objective standard is harder to
defend than a good-faith standard.”).
D. As enacted by Congress, Section 1983
forecloses qualified immunity.
There is an even greater historical flaw. Without
recapitulating Petitioner’s argument in this regard,
see Pet. at 12–16, the codified version of Section 1983
erroneously omits sixteen crucial words that afford a
cause of action “notwithstanding” any “law, statute,
ordinance, regulation, custom, or usage of the State to
the contrary.” Alexander A. Reinert, Qualified
Immunity’s Flawed Foundation, 111 CALIF. L. REV.
201, 235 (2023). Qualified immunity in particular is
derived from the Court’s (flawed) understanding of
historical state common law. See id. at 236; Pierson,
386 U.S. at 555–57; Wood v. Strickland, 420 U.S. 308,
318–20 & nn. 9, 12 (1975). As such, it is foreclosed
entirely by the “Notwithstanding Clause.” Reinert,
supra, at 236. Judge Willett correctly notes that the
“original justification for qualified immunity—that
Congress wouldn’t have abrogated common-law
immunities absent explicit language—is faulty
because the 1871 Civil Rights Act expressly included
such language.” Pet. App’x at 16a.

16 Keller, supra, at 1346.

 12

Section 1983 provides no textual support for

qualified immunity, and the relevant history
establishes a baseline of strict liability for
constitutional violations where “good faith” was a
defense only to some specific torts. Qualified
immunity, then, is exactly what the Court sought to
avoid in adopting it—a “freewheeling policy choice.”
Malley, 475 U.S. at 342. Unless and until it is
abolished, the Court “will continue to substitute [its]
own policy preferences for the mandates of Congress.”
Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas,
J., concurring in part and concurring in the judgment).
II. QUALIFIED IMMUNITY HARMS PUBLIC
OFFICIALS BY ERODING PUBLIC TRUST
AND UNDERMINING THE RULE OF LAW.
Qualified immunity not only misunderstands
Section 1983 and works unlawful injustices to the
victims of official misconduct, it undermines the
legitimacy of public institutions by reinforcing the
perception that government officers are held to a far
lower standard of accountability than ordinary
citizens. While this particular case does not involve
policing, the lower court’s doctrinal errors have
especially grave consequences for the law-enforcement
community.
Police misconduct is the context most often
associated with how qualified immunity undermines
the public’s trust in government, perhaps especially
when it causes unnecessary loss of life. Though only a
small proportion of law-enforcement officers each year
are involved in a fatal confrontation, even those few
generate a shocking number of fatalities. From 2015 to
2017, law-enforcement officers fatally shot, on
average, nearly a thousand Americans each year. See
 13

Julie Tate et al., Fatal Force, WASH. POST DATABASE.17

Tens of thousands more were wounded or injured, to
say nothing of those harmed without obvious physical
effects. See Nathan DiCamillo, About 51,000 People
Injured Annually By Police, Study Shows, NEWSWEEK
(Apr. 19, 2017).18
Given the ubiquity of smartphones and other
personal recording devices, citizens are documenting
these encounters like never before, making them
harder to ignore and further raising the stakes for a
judiciary that systematically allows the conduct
depicted to go without adjudication or remedy. New
technology has generated powerful, immediately
accessible evidence of police misconduct. For example,
a cell-phone camera live-streamed the aftermath of a
Minnesota officer shooting a motorist stopped for a
broken taillight who notified the officer that he was
lawfully carrying a firearm. ABC News, Philando
Castile Police Shooting Video Livestreamed on
Facebook, YOUTUBE (July 7, 2016).19 A cell-phone
camera recorded two Baton Rouge officers who shot a
father of five after they pinned him to the ground. ABC
News, Alton Sterling Shooting Cellphone Video,
YOUTUBE (July 6, 2016).20 And a cell-phone camera
captured a South Carolina officer shooting a man eight
times in the back as he fled from another broken-

17 Available at https://github.com/washingtonpost/data-police-
shootings.
18Availableat https://www.newsweek.com/51000-people-injured-
annually-police-586524.
19 Available at
https://www.youtube.com/watch?v=PEjipYKbOOU.
20 Available at https://www.youtube.com/watch?v=pt4ynfRXnjg.
 14

taillight stop. N.Y. Times, Walter Scott Death: Video

Shows Fatal North Charleston Police Shooting,
YOUTUBE (Apr. 7, 2015).21
These four videos collectively have been viewed
millions of times on YouTube alone. All precipitated
major protests and demonstrations. They are but a few
examples among many.22
It is little wonder that as public awareness of these
often jaw-droppingly brutal recordings of police
misconduct has grown, faith in law enforcement has
fallen—no matter the actual overall rate of
misconduct. In the aftermath of many high-profile
police killings—most obviously, the video-recorded
murder of George Floyd at the hands of Minnesota
police officers in May 2020—Gallup reported that trust
in police officers had reached a 27-year low. Aimee
Ortiz, Confidence in Police Is at Record Low, Gallup
Survey Finds, N.Y. TIMES (Aug. 12, 2020).23 For the
first time, fewer than half of Americans reported

21Available at
https://www.youtube.com/watch?v=XKQqgVlk0NQ.
22See Police Misconduct Registry, UNIV. OF S. CAL. PRICE SCH. OF
BUS. SAFE COMMUNITIES INITIATIVE, (last updated Apr. 5, 2023)
https://sci.usc.edu/police-misconduct-registry/; John Kelly &
Mark Nichols, Tarnished Brass: Search the List of More than
30,000 Police Officers Banned by 44 States., USA TODAY (last
updated June 27, 2022), https://www.usatoday.com/in-
depth/news/investigations/2019/04/24/
biggest-collection-police-accountability-records-ever-assembled/
2299127002/; Derek Willis et al., The NYPD Files, PROPUBLICA,
(July 26, 2020), https://projects.propublica.org/nypd-ccrb/.
23 Available at https://www.nytimes.com/2020/08/12/us/gallup-
poll-police.html.
 15

placing confidence in the police. See id. Confidence in

the police has not recovered.24
Public opinion has been driven by videos, and also
by the perception that officers who commit such
misconduct are rarely held accountable.25 Members of
law enforcement concur with this premise: according
to a recent survey of more than 8000 police officers, 72
percent disagreed with the statement that “officers
who consistently do a poor job are held accountable.”
Rich Morin et al., PEW RSCH. CTR., Behind the Badge
40 (2017).26 Between 2005 and 2021, despite
thousands of police shootings, only “142 officers have
been arrested for murder or manslaughter, but only
seven have been convicted of murder. An additional 37
were convicted of lesser offenses, and 53 were not
convicted.” Rick Rouan, Fact check: Police Rarely
Prosecuted for On-Duty Shootings, USA TODAY (June
21, 2021).27 Many more are never indicted at all. See,

24 See Lydia Saad, Historically Low Faith in U.S. Institutions

Continues, GALLUP (July 6, 2023),
https://news.gallup.com/poll/508169/historically-low-faith-
institutions-continues.aspx (identifying 2023 as the low-water
mark for public confidence in police); Gary Langer, Confidence in
Police Practices Drops to a New Low: POLL, ABC NEWS (Feb. 3,
2023), https://abcnews.go.com/Politics/confidence-police-
practices-drops-new-low-poll/story?id=96858308.
25 See Mike Baker et al., Three Words. 70 Cases. The Tragic
History of ‘I Can’t Breathe.’, N.Y. TIMES (June 29, 2020),
https://www.nytimes.com/
interactive/2020/06/28/us/i-cant-breathe-police-arrest.html.
26 Available at https://pewrsr.ch/2z2gGSn.
27Available at
https://www.usatoday.com/story/news/factcheck/2021/06/
21/fact-check-police-rarely-prosecuted-duty-
shootings/7642741002/.
 16

e.g., J. David Goodman & Al Baker, Wave of Protests

After Grand Jury Doesn’t Indict Officer in Eric Garner
Chokehold Case, N.Y. TIMES (Dec. 3, 2014).28
Problems also abound in settings less transparent
to the public and less likely to attract public sympathy,
such as the correctional facility at issue in this case.
Two million Americans with mental illness are booked
into custody annually, and “as many as half of all jail
and prison suicides in the United States are committed
by those suffering from severe mental illness,” yet
qualified immunity has stymied reforms in care and
accountability for even atrocious indifference. See
Samuel Bourgeois, Comment, Mental Illness,
Fourteenth Amendment Violations, and the
Insurmountable Threshold to Overcome Qualified
Immunity—Cope v. Cogdill, 3 F.4th 198 (5th Cir.
2021), 18 J. HEALTH & BIOMED. L. 223, 231 (2022).
Indeed, the Fifth Circuit recently granted qualified
immunity to a corrections officer who stood watching
for several minutes as a mentally ill inmate hanged
himself. See Cope v. Cogdill, 142 S. Ct. 2573, 2574–75
(2022) (Sotomayor, J., dissenting from denial of cert.).
The inability to remedy rights violations
contributing to the loss of human life—and the lack of
a need to determine whether there even was a rights
violation in the first place—are qualified immunity’s
rotten fruit. Qualified immunity affords federal courts
the discretion to avoid deciding whether alleged
misconduct even violated federal rights in the first
place and to dispose of potentially meritorious claims
solely on the ground that any possible violation was
not “clearly established.” Pearson v. Callahan, 555

28 Available at https://nyti.ms/2z0kbZl.
 17

U.S. 223, 236 (2009). The Pearson escape hatch creates

a vicious cycle: violations must be clearly established
for plaintiffs to survive qualified immunity, but
qualified immunity itself stunts the development of
the law and prevents rights from becoming clearly
established.
Such a lack of accountability has dire social
consequences. “[W]hen a sense of procedural fairness
is illusory, this fosters a sense of second-class
citizenship, increases the likelihood people will fail to
comply with legal directives, and induces anomie in
some groups that leaves them with a sense of
statelessness.” Fred O. Smith, Abstention in the Time
of Ferguson, 131 HARV. L. REV. 2283, 2356 (2018);
accord U.S. DEP’T OF JUST., INVESTIGATION OF THE
FERGUSON POLICE DEPARTMENT 80 (Mar. 4, 2015) (a
“loss of legitimacy makes individuals more likely to
resist enforcement efforts and less likely to cooperate
with law enforcement efforts to prevent and
investigate crime.”).29
When properly trained and supervised, the
majority of police and corrections officers who follow
their constitutional obligations will benefit if the legal
system reliably holds rogue officers accountable. But
under the status quo, “[g]iven the potency of negative
experiences, the police cannot rely on a majority of
positive interactions to overcome the few negative
interactions. They must consistently work to overcome
the negative image that past policies and practices
have cultivated.” Inst. on Race & Justice,
Northeastern Univ., Promoting Cooperative Strategies

29 Available at https://perma.cc/XYQ8-7TB4.
 18

to Reduce Racial Profiling at 21 (2008).30 Qualified

immunity unhelpfully—and unlawfully—shields the
minority of officers who bring discredit upon the entire
vocation and flout the law, and so it erodes
relationships between communities and law
enforcement.
In a recent survey, a staggering 93 percent of law-
enforcement officers reported increased concerns
about their safety in the wake of high-profile police
shootings. See PEW RSCH. CTR., supra, at 65. Many
hoped for improved community relations as a solution,
and more than half agreed that “today in policing it is
very useful for departments to require officers to show
respect, concern and fairness when dealing with the
public.” Id. at 72. Responding officers also strongly
supported more transparency, and—most importantly
for this case—did not think that problematic officers
were held accountable. See id. at 40, 68.
Unfortunately, “accountability” often serves as
nothing more than a rhetorical cloak for unchecked
abuse thanks to qualified immunity. Then-U.S.
Attorney General William Barr recently told citizens
facing potentially unlawful commands from police to
meekly comply because there is “a time and place to
raise . . . concerns or complaint.” Adam Shaw, Barr
Sounds Call to Push Back against Anti-Cop Attitudes,
Adopt ‘Zero Tolerance’ to Resisting Police, FOX NEWS
(Feb. 27, 2020).31 A Los Angeles police officer similarly

30 Available at https://www.ojp.gov/ncjrs/virtual-
library/abstracts/
promoting-cooperative-strategies-reduce-racial-profiling.
31 Available at https://www.foxnews.com/politics/barr-anti-cop-
attitudes-resisting-police.
 19

warned: “if you don’t want to get shot, tased, pepper-

sprayed, struck with a baton or thrown to the ground,
just do what I tell you”—and if a citizen is abused
anyway, “Feel free to sue the police!” Sunil Dutta, I’m
a Cop. If You Don’t Want to Get Hurt, Don’t Challenge
Me., WASH. POST (Aug. 19, 2014).32 Words of
“assurance” like these come cheaply, because qualified
immunity in fact removes the federal judiciary as a
venue for raising most complaints with any hope of
remedy.
Qualified immunity has undermined society’s trust
in law enforcement and government institutions more
generally. By clarifying that defendants who violate
constitutional rights should be held accountable, the
Court can take a significant step toward restoring
public confidence.
III. STARE DECISIS SHOULD NOT PREVENT
THIS COURT FROM REVISITING
QUALIFIED IMMUNITY.
A. Maintaining qualified immunity harms
judicial legitimacy.
Stare decisis is no bar to the overdue course
correction urged by Petitioner and Amicus.
Regrettably, the American public lacks confidence in
this Court. See Jeffrey M. Jones, Confidence in U.S.
Supreme Court Sinks to Historic Low, GALLUP (June
23, 2022).33 The way to restore it is not by

32Available at
https://www.washingtonpost.com/posteverything/wp/
2014/08/19/im-a-cop-if-you-dont-want-to-get-hurt-dont-
challenge-me/.
33 Available at https://news.gallup.com/poll/394103/confidence-
supreme-court-sinks-historic-low.aspx.
 20

unquestioningly following erroneous precedent, nor by

being directed by “public opinion, but . . . [by] deciding
by [the Court’s] best lights” what the law requires.
Dobbs v. Jackson Women’s Health Org., 142 S. Ct.
2228, 2278 (2022) (citation omitted); see also Trump v.
Hawaii, 138 S. Ct. 2392, 2423 (2018) (overruling
Korematsu, another case that denied Americans their
rights and so foreclosed any judicial remedy for
violations).
A proper understanding of Section 1983 requires
abolishing qualified immunity. That doctrine’s legal
and practical infirmities have been noticed by
members of this Court. See Ziglar, 137 S. Ct. at 1871
(Thomas, J., concurring in part and concurring in the
judgment) (“In further elaborating the doctrine of
qualified immunity . . . we have diverged from the
historical inquiry mandated by the statute.”); Wyatt v.
Cole, 504 U.S. 158, 170 (1992) (Kennedy, J.,
concurring) (“In the context of qualified immunity . . .
we have diverged to a substantial degree from the
historical standards.”); see also Kisela v. Hughes, 138
S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting)
(contending that the Court’s “one-sided approach to
qualified immunity transforms the doctrine into an
absolute shield for law enforcement officers, gutting
the deterrent effect of the Fourth Amendment”).
This Court should follow these careful assessments
and abolish qualified immunity. Petitioner asks
simply “who has the authority” to legitimately decide
the reach of Section 1983: the Congress that crafted it,
or the Court that rewrote “that statute from the
ground up” when it invented qualified immunity.
Biden v. Nebraska, 143 S. Ct. 2355, 2368 (2023). The
answer is clear: such policy decisions of great
 21

“magnitude and consequence” are for Congress to

make. West Virginia v. EPA, 142 S. Ct. 2587, 2616
(2022). Precedent substituting for Congress’s
judgment judicial policies like qualified immunity
“must be overruled, and the authority to” remedy
violations of federally protected rights “must be
returned to the people and their elected
representatives.” Dobbs, 142 S. Ct. at 2279.
“[U]nswerving fidelity to the words Congress chose”
when it enacted Section 1983, as Judge Willett put it,
would go a long way toward reinforcing judicial
legitimacy. Pet. App’x at 17a.
B. Qualified immunity rests upon faulty
empirical assumptions.
Faulty empirical assumptions behind qualified
immunity support its abolition as well. See Crawford-
El v. Britton, 523 U.S. 574, 606 (1998) (Rehnquist,
C.J., dissenting) (“In crafting our qualified immunity
doctrine, we have always considered the public policy
implications of our decisions.”). Qualified immunity
wrongly assumes that officials personally bear the cost
for Section 1983 judgments against them and that
judicial decisions “clearly establishing” rights put
officials on “fair notice” to change their
unconstitutional behavior.
Despite the growing recognition that qualified
immunity harms the very officials it seeks to protect
by justifiably undermining public confidence in their
accountability, this Court has asserted—with a
notable lack of empirical support—that qualified
immunity prevents over-deterrence because “there is
the danger that fear of being sued will dampen the
ardor of all but the most resolute, or the most
irresponsible public officials, in the unflinching
 22

discharge of their duties.” Harlow, 457 U.S. at 814

(cleaned up and citation omitted); see also Forrester,
484 U.S. at 223.
This concern was largely premised on the faulty
assumption that individual officers pay their own
judgments. But they don’t. The widespread
availability of indemnification already protects
individual public officials from ruinous judgments.
See, e.g., Cornelia T.L. Pillard, Taking Fiction
Seriously: The Strange Results of Public Officials’
Individual Liability under Bivens, 88 GEO. L.J. 65, 78
(1999). For one example, a recent study shows that
governments paid approximately 99.98 percent of all
dollars paid out for civil rights claims against police
officers. See Joanna C. Schwartz, Police
Indemnification, 89 N.Y.U. L. REV. 885, 890 (2014).
Far from threatening individual officers with
financial ruin, then, replacing qualified immunity
with the fully remedial legal regime actually enacted
by Congress would simply ensure that the victims of
rights violations are not done the further injustice of
being saddled with the cost of those harms, rather
than them being justly placed upon perpetrators.
Indeed, departments facing more frequent judgments
may also invest in better training, hiring, disciplinary,
and other salutary programs. See Kimberly Kindy,
Insurers Force Change on Police Departments Long
Resistant to It, WASH. POST (Sept. 14, 2022).34
Lawsuits can serve as “a valuable source of
information about police-misconduct allegations,” and

34 Available at https://www.washingtonpost.com/investigations/
interactive/2022/police-misconduct-insurance-settlements-
reform/.
 23

police departments that “use lawsuit data—with other

information—to identify problem officers, units, and
practices” are better equipped to “explore personnel,
training, and policy issues that may have led to the
claims.” Joanna C. Schwartz, What Police Learn from
Lawsuits, 33 CARDOZO L. REV. 841, 844–45 (2012).
Lawsuits can prompt institutional learning when
they carry real consequences for defendant agencies.
But qualified immunity wrongly assumes that
ordinary officials meaningfully change their actions
based on their knowledge of the entire universe of
judicial precedent. Qualified immunity has been
justified in part on the grounds that an official has the
right to “fair notice” regarding whether conduct is
unconstitutional, and that binding decisional law
finding a rights violation based on “materially similar”
facts provides such notice. Hope v. Pelzer, 536 U.S.
730, 739–41 (2002).
The second assumption is baseless. While agencies
may instruct officials about “watershed decisions,”
“officers are not regularly or reliably informed about
court decisions interpreting those decisions in
different factual scenarios—the very types of decisions
that are necessary to clearly establish the law.”
Joanna C. Schwartz, Qualified Immunity’s Boldest
Lie, 88 U. CHI. L. REV. 605, 610 (2021). Officials lack
the capacity to “learn the facts and holdings of the
hundreds or thousands of cases that clearly establish
the law and, even if they learned about some of these
cases, they would not reliably recall their facts and
holdings while doing their jobs.” Id. at 612. Besides, as
noted above, qualified immunity keeps rights
violations from becoming “clearly established at all.”
See Pearson, 555 U.S. at 236.
 24

Faulty empirical assumptions have led this Court

to adopt qualified immunity, at a heavy price to
victims of government wrongdoing. Stare decisis is
weak when precedent stands in the way of “lawful
prerogatives.” South Dakota v. Wayfair, Inc., 138 S. Ct.
2080, 2096–97 (2018). Immunity doctrines do this by
definition. “Every time a privilege is created or an
immunity extended, it is understood that some
meritorious claims will be dismissed that otherwise
would have been heard.” Crawford-El, 523 U.S. at 606
(Rehnquist, C.J., dissenting). Official immunity in
particular “comes at a great cost. An injured party
with an otherwise meritorious tort claim is denied
compensation,” contravening “the basic tenet that
individuals be held accountable for their wrongful
conduct.” Westfall v. Ervin, 484 U.S. 292, 295 (1988).
Sweeping immunity should not be maintained when it
rests upon little more than mistaken factual
assumptions and faulty legal reasoning.
Qualified immunity frustrates the remedy
Congress enacted for violations of Americans’ rights. It
undermines government accountability. It lacks a
sound basis in reality. And it should be abolished.
CONCLUSION
“The government of the United States has been
emphatically termed a government of laws, and not of
men.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163
(1803). But as Chief Justice Marshall admonished, our
government “will certainly cease to deserve this high
appellation, if the laws furnish no remedy for the
violation of a vested legal right.” Id. Qualified
immunity denies the availability of a remedy for
violations of paramount legal rights in contradiction of
Congress’s clear command in Section 1983. For the
 25

foregoing reasons and those described by the

Petitioner, this Court should grant the petition.

........................................... Respectfully submitted,

Clark M. Neily III
Counsel of Record
Matthew P. Cavedon
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, DC 20001
(202) 425-7499
[email protected]
August 31, 2023