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Opinion Virginians deserve to hear the truth about qualified immunity

Virginia gubernatorial candidates Terry McAuliffe (D), left, and Glenn Youngkin (R) during their debate in Grundy, Va., on Sept. 16. (Steve Helber/AP)

Patrick Jaicomo is an attorney and Chad Reese is the assistant director of activism for the Institute for Justice, a national nonprofit public interest law firm dedicated to holding the government accountable for violations of constitutional rights.

Virginians deserve an open and honest conversation about qualified immunity. But that’s not what they heard from either candidate at the gubernatorial debate between Democrat Terry McAuliffe and Republican Glenn Youngkin on Sept. 16.

Created by the Supreme Court in 1982 for policy reasons, qualified immunity is a legal doctrine that shields all government workers — not just police — by default from federal constitutional lawsuits. Here’s how it works: If your constitutional rights are violated, the government workers who violated them cannot be sued (the “immunity” part) unless you can point to an earlier court case in your area holding that nearly identical conduct was unconstitutional (the “qualified” part). That means that government agents can knowingly and intentionally violate your rights, and you cannot sue them, thanks to qualified immunity.

Though the two candidates took slightly different positions on the issue, both mischaracterized what qualified immunity really is and the role it plays in preventing victims of constitutional rights abuses from seeking justice.

Youngkin argued that qualified immunity protects law enforcement from “frivolous civil lawsuits.” Quite the opposite. Qualified immunity only thwarts meritorious lawsuits — the important ones. If a case is easily dismissed as frivolous, meaning that it lacks a basis in fact or law, it can be dismissed under a variety of court rules that were designed to weed out those kinds of lawsuits. Indeed, parties and lawyers who bring frivolous lawsuits can already be sanctioned in a variety of ways. Qualified immunity prevents the good cases, not the bad ones.

McAuliffe responded that “any officer acting in good faith, should and will have the full protections of the Commonwealth of Virginia.” But qualified immunity doesn’t consider a government worker’s good-faith intentions. On the contrary, courts cannot factor in a worker’s intentions. But something else does: the Constitution, which only prohibits “unreasonable searches and seizures.” That language already leaves plenty of latitude for good-faith mistakes. Qualified immunity actually prevents courts from deciding whether an officer acted reasonably or violated the Constitution.

McAuliffe added that qualified immunity ends when a law enforcement officer “breaks the law.” That is also incorrect, sadly. As long as there is not an earlier case addressing the exact same behavior, even illegal activity is shielded by qualified immunity. For example, an appeals court recently granted immunity to police officers who stole more than $100,000. As the court explained there, even though “theft is morally wrong [as] virtually every human society teaches . . . that principle does not . . . answer the legal question” of whether qualified immunity applies.

To further complicate matters for victims, even tiny differences from previous cases can lead judges to declare that a specific rights violation was not “clearly established.” In one case, a prison guard who pepper-sprayed an inmate without justification was granted immunity because, though other cases had found that punching, tasing or striking inmates with a baton without justification was a rights violation, none of those cases involved pepper spray specifically.

The human consequences of this judge-made doctrine are staggering. Take the story of Shaniz West, an Idaho mother who returned home one day to find her house surrounded by law enforcement officials. After learning that police were looking for her former boyfriend, West informed the officers that the house was empty but gave them her keys and permission to search the house.

The officers instead bombarded the house with tear-gas grenades, destroying it and all of West’s possessions in the process. The house’s only occupant at the time was West’s dog, Blue, who somehow survived the siege. When West tried to sue the police for unnecessarily destroying her home and belongings, courts granted the officers qualified immunity, explaining that no earlier case specifically informed police that West’s permission to enter her home with a key and search didn’t include shelling it with noxious gas from outside. Unfortunately, when West appealed the case to the Supreme Court with the help of the Institute for Justice, the court declined to intervene.

Thanks to qualified immunity and similar legal protections that shield government workers from accountability, victims of constitutional abuses find courthouse doors slammed shut when they try to seek justice.

Regardless of who wins next month’s election, Virginians deserve a governor who understands what’s at stake. Qualified immunity does not protect good-faith actors who make reasonable mistakes from frivolous lawsuits. It shields all government officials from accountability altogether, even when they knowingly or intentionally break their oath to uphold the Constitution and violate our rights.