Yesterday, the Institute for Justice filed a major new lawsuit as part of our multi-year assault on civil forfeiture. Next week, we go before the U.S. Supreme Court on behalf of parents and children in Montana in a case that is a crescendo in our three decades of work to advance educational choice.

Today, I write to announce the launch of a new initiative: IJ’s Project on Immunity and Accountability <[link removed]>.

Many Americans don’t realize that a complex set of court-created legal doctrines—found nowhere in the Constitution’s text or its history—shield government officials from a crucial kind of accountability. These doctrines protect those officials from having to pay damages when they violate someone’s rights, no matter how blatant or egregious their behavior. What’s worse, courts routinely use the fact that officials don’t have to pay to avoid deciding whether anyone’s rights were violated at all.

All too often, this leaves individuals who have suffered abuse at the hands of officials without any legal recourse. That must change.

Take, for instance, IJ client Shaniz West <[link removed]>. Several years ago, Shaniz gave police officers permission to go into her house to search for her ex-boyfriend, though she informed them he wasn’t there. Instead of simply using the key Shaniz gave them and going into the house, the officers instead stood on the sidewalk and bombarded the house with tear-gas grenades in the hopes of getting the man to come out. He did not come out because, as Shaniz had said, he was not there. But police kept the house under siege for 10 hours, destroying it and most of the family’s belongings. When Shaniz sued, seeking damages for what she lost in the assault, the court granted the officers immunity at the same time it refused to clarify that what they did was unreasonable and in violation of the Fourth Amendment.

You can read more about Shaniz’s story in today’s Wall Street Journal <[link removed]> (the text is below as well) and learn about the other cases and activities that are part of this project on the project website <[link removed]>.

IJ’s Project on Immunity and Accountability is an exciting area of growth for IJ, and one with enormous potential in the fight to advance liberty. I look forward to keeping you apprised.

Scott

Scott G. Bullock
President and General Counsel
Institute for Justice

Tear-Gas Grenades and ‘Qualified Immunity’
<[link removed]>A rule meant to shield
officials from frivolous lawsuits now protects unconstitutional conduct.
By Robert McNamara
Jan. 15, 2020 7:12 pm ET
Shaniz West was rushing to register one of her children for school when she found five local police officers surrounding her house in Caldwell, Idaho. They were looking for her ex-boyfriend, who was wanted on firearms charges. Ms. West told them she didn’t think he was in the house—he wasn’t supposed to be—but she said they could go inside to check. She handed over her keys and left.
The officers didn’t go inside to check. They called in the SWAT team and launched an hourslong siege, repeatedly using shotguns to blast tear-gas grenades into every living space in the home. Afterward, the place was a wreck. There were broken windows, holes in the walls and ceilings, and a sticky yellow film that covered all of Ms. West’s possessions. The ex-boyfriend was nowhere in sight. The police had spent the day bombarding a house that was empty except for Ms. West’s dog, Blue.
The home was uninhabitable, and Ms. West and her children spent the next two months homeless. She sued the officers responsible, arguing that the warrantless destruction of her home violated her Fourth Amendment rights against unreasonable searches and seizures.
The officers’ defense was that they didn’t need a warrant because they had Ms. West’s consent: When she said it was OK to enter the house, they argued, that was the end of things: Once a person gives consent to enter a home they “cannot limit the tactical plan and safety precautions used by police officers to conduct the consent search.”
No judge has held that what the officers did to Ms. West was legal. But the Ninth Circuit Court of Appeals rejected her claim anyway. Ms. West lost because of a rule called qualified immunity: A government official can be held liable for civil-rights violations only if the constitutional rule he broke was “clearly established.”
The Supreme Court established this doctrine in Harlow v. Fitzgerald (1982). A civilian Air Force employee sued Nixon administration aides, alleging that they had conspired to get him fired. By an 8-1 vote, the justices rejected the defendants’ claim that they were entitled to “absolute immunity”—that they couldn’t be sued because they were government officials. But in light of the vagueness and breadth of the lawsuit’s allegations, the court also decided that liability would require the plaintiff to prove the defendants had violated a “clearly established” rule—that they had no good-faith reason to believe that they were behaving legally.
It seems unfair to punish someone for breaking a rule he could not have known about. But the earlier standard also required that the official’s action be objectively reasonable. And judges often apply an absurd level of precision in defining the rule before asking if it is “clearly established.”
Take Ms. West’s case. Nobody seriously believes that consent to enter a home is permission to lob grenades into it. But no court has ever decided the question, because as far as I can tell, this is the first time anybody has made the argument. Since no court has considered it, qualified immunity means Ms. West loses. As long as an official’s conduct is uniquely outrageous, it’s impossible to hold him liable for it.
Courts have awarded qualified immunity to police who sicced a dog on a surrendering suspect on the grounds that the suspect was seated. It was “clearly established” only that you couldn’t unleash the hounds on a suspect who was lying down. Officials from the Texas medical board won qualified immunity after they showed up unannounced at a doctor’s office and started rifling through patient files without a warrant. The doctrine even shielded police in Fresno who allegedly stole thousands of dollars in cash and rare coins while executing a search warrant.
A rule meant to protect government officials from unreasonable lawsuits has turned into a rule that protects unconstitutional conduct. That is why the Institute for Justice, where I work, is representing Ms. West and petitioning the U.S. Supreme Court to hear her case. This is only the first of many such cases the institute plans to litigate as part of a new Project on Immunity and Accountability.
Ms. West’s case is outrageous but not atypical. Courts shouldn’t allow government officials to punch holes in the Constitution, or in her walls.
Mr. McNamara is a senior attorney at the Institute for Justice, a nonprofit public-interest law firm in Arlington, Va.
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