The first responsibility of government is to protect its citizens and their inalienable rights. As the Declaration of Independence puts it, “to secure these rights [of life, liberty and the pursuit of happiness], Governments are instituted among Men.” But what happens when the government officials whose first job is protecting your rights are the ones who are violating them? If government officials can violate your constitutional rights and not be held accountable, your rights aren’t worth the parchment they’re written on. Qualified immunity is the judge-made law that allows government officials to fail their first responsibility and avoid accountability. Conservatives, as much as anyone, should oppose it.
The 1871 Civil Rights Act, passed in the aftermath of the Civil War, authorizes lawsuits against state and local government officials who violate your constitutional rights. But the Supreme Court has judicially amended the law to completely protect police, university, or other officials who violated your rights if the law was not already “clearly established.” In practice, this is an extraordinarily high bar that shields “all but the plainly incompetent” government officials. Another court must have already said that another official violated the Constitution when he did the exact same thing to someone else that an official did to you. That’s why police officers have recently been deemed immune from civil liability for stealing money from people whose homes they searched or ordering police dogs to attack suspects sitting on the ground and giving themselves up.
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