Qualified immunity violates principle of limited government
With Congress poised to punt on qualified immunity reform, the effort to temper the court-created doctrine that shields government officials from accountability for violating citizens’ constitutional rights likely heads back to the states.
A key ingredient to success at the state level: conservative activists and lawmakers who can make reform happen. As Cato’s Clark Neily writes, the conservative case for ending qualified immunity is strong…if conservatives actually believe what they print in their campaign brochures. That includes a belief in limited government:
Police, prosecutors, and other members of law enforcement are clothed with extraordinary powers and breathtakingly broad discretion. Police can (and routinely do) decide whether to turn a blind eye, give a warning, or make an arrest when they witness various infractions; prosecutors can (and routinely do) decide whether to drop or pursue charges, whether to make a plea offer and if so how favorable, and whether to pursue a harsh sentence or a lenient one following a conviction; and prison guards control every facet of a prisoner’s life, including whether to allow opportunities for employment or recreation, whether to impose shockingly brutal punishments like solitary confinement, and whether to put their charges in situations where their lives will be at great risk from other prisoners.
Preventing government officials from exercising arbitrary power over the lives of citizens is arguably the sine qua non of the American founding, and it is difficult to imagine a more traditionally “conservative” political value than cabining the authority of government officials. But just like personal responsibility, that value essentially disappears in the context of providing civil remedies to victims of government misconduct.
Either conservatives believe in limited government, or they merely mouth those words when it’s politically convenient. Qualified immunity reform depends on which side they choose: principle, or politics.