Opinion: If accountability is the question, immunity is not the answer

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Published: 6/30/2022 6:02:52 AM
Modified: 6/30/2022 6:00:17 AM

Paul Berch (D-Westmoreland) and Tony Lekas (R-Hudson) are members of the NH House of Representatives. Keith Neely and Patrick Jaicomo are attorneys at the non-profit Institute for Justice, working on its Project on Immunity and Accountability.

Holding government officials accountable is vital for a free society. However, a legal doctrine called “qualified immunity” ensures that it is almost impossible to sue those officials when they violate our constitutional rights.

Created whole-cloth by the U.S. Supreme Court in 1982, qualified immunity has often kept our citizens from seeking simple justice in Court.

Courts have granted qualified immunity to police officers suspected of stealing, cops who wrongly led a no-knock raid against a 78-year-old grandfather, social workers accused of alleged sexual assault, and college administrators who reportedly stifled free speech.

As hard as it is to get justice in federal courts, it is the only current option for Granite Staters. New Hampshire is one of 27 states that don’t allow victims to sue the officials who violated their rights in state courts, which are easier and more accessible than their federal counterparts.

We are preparing legislation for next year that would ensure Granite Staters harmed by government officials have their day in state court. Although the details have yet to be finalized, we expect the bill would authorize civil rights lawsuits in state court and prohibit government officers and agencies from invoking qualified immunity and other judge-made doctrines. Similar laws have already been enacted in Colorado, New Mexico and New York City.

“Presumptive immunity” has been suggested as an alternative proposal. But this idea is fundamentally flawed, both because the plaintiff already must prove their case by a preponderance of the evidence and because it addresses a problem that has already been solved.

No form of immunity — qualified, presumptive, or otherwise — is needed to protect government officials when they make “split-second, informed and reasoned decisions.”

The Fourth Amendment prohibits such suits in all cases except for “unreasonable” conduct, and the U.S. Supreme Court has long required finders of fact to decide in the context of the fact-specific conditions officers face on the ground (e.g., in 1989’s Graham v. Connor). In other words, the Constitution already protects government officials who make reasonable, split-second decisions, even if they turn out to be wrong.

Moreover, presumptive immunity, like qualified immunity,has no sound basis in American legal history. Since our founding and up until 1982, courts have consistently held government officials liable when they have violated a person’s rights. Indeed, to our knowledge, no court has ever invoked, developed or even mentioned “presumptive immunity.”

No matter their name or substance, modern immunities only serve to undermine the longstanding legal and commonsensical principle that every right deserves a remedy. After all, the New Hampshire Constitution guarantees that “[e]very subject of this State is entitled to a certain remedy, by having recourse of the laws, for all injuries he may receive.”

Qualified immunity was a bad idea when an activist Court imposed it in 1982. It hasn’t worked for our citizens. Let’s go back to what the people of our state put in our constitution in 1784.

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