DATABASE REVIEW
Unlawful Shield Confronts Qualified Immunity
by Mick O'Leary
Unlawful Shield
SYNOPSIS
Unlawful Shield is a project of the Cato Institute, a prominent libertarian think tank. “Unlawful Shield” refers to the legal doctrine of qualified immunity (QI), which provides a substantial barrier to the prosecution of public officials—including law enforcement officers—for misconduct. The site includes authoritative commentary on QI developments, a useful FAQ section, and a collection of relevant legal resources. |
In the course of a sudden and important news event, a hitherto obscure term or phrase often bursts into widespread public awareness. In late May 2020, it was “qualified immunity” (QI). QI, a legal doctrine dealing with the prosecution of public officials, emerged very quickly as the world was fixated on the horrific death of George Floyd at the hands of Minneapolis police on May 25. Google Trends showed that, in a few days, search traffic for the phrase soared almost vertically, from a flat line in the third week of May to the top of the Google Trends scale a week later.
Calls quickly arose for punitive action for the four officers involved. In a sobering response, legal scholars explained that the prosecution and conviction of law enforcement officers, even in egregious cases like Floyd’s, are by no means assured or even likely. Officers have several kinds of legal protection, but QI is perhaps the most impenetrable and controversial.
The sudden “discovery” of QI and its deeply troubling implications set off a rash of demands, including legislative proposals, that it be curtailed or abolished. However, the problems of QI are not news to Unlawful Shield (unlawfulshield.com), a project of the Cato Institute and an energetic and articulate opponent of QI. Unlawful Shield is a leading voice in the QI debate, which has been raging among legal and criminal justice experts for many years.
POLICE ACCOUNTABILITY
The Cato Institute is a prominent think tank that occupies the libertarian segment of the political spectrum. It was founded in 1977 and carries out research and advocacy in many areas concerning individual liberty, limited government, and free markets. It has a long-standing interest in issues of police accountability. QI is anathema to Cato’s core mission to resist the unfettered abuse of citizens by the state.
QI has a long and complex statutory and legal history, going back to the Reconstruction period. It has been developed through a series of Supreme Court decisions over the past 40 years. Basically, it puts extremely restrictive limits on the conviction of public officials, even when culpability is otherwise evident. Although QI applies to almost all public officials, actual litigated cases generally involve law enforcement personnel.
Cato’s critique of QI follows two lines of argument. First, QI, because it represents such a high and unreasonable bar to conviction, allows police misconduct and abuse to go unpunished. Second, the doctrine itself has no statutory foundation and instead derives from controversial Supreme Court decisions; in addition to the constitutional uncertainty, this leads to murky and inconsistent interpretations by lower courts.
CONTENT
Cato launched Unlawful Shield as a standalone project with its own website in 2018. It has a mixture of current reporting, commentary, and analysis, as well as other relevant legal and research content:
- Blog—The Unlawful Shield blog reports on QI-related news, including police misconduct incidents, legal initiatives, and court cases. The posts are usually more akin to full-length articles than to the typical short blog entry and contain detailed reporting, informed analysis, and pointed commentary from Unlawful Shield’s legal staff. Unfortunately, the reference value of the blog is undermined by a lack of filtering options and a search function that is not easily found.
- Recent QI cases—This section contains references to recent (dating from 2016) lower court cases that involve QI, with a summary of the case, the court’s findings, and links to original documents.
- FAQs—Unlawful Shield’s FAQs do an excellent job of clearly explaining the arcane and tortuous history and current applications of QI. In keeping with Unlawful Shield’s advocacy role, one set of FAQs provides rebuttals to commonly raised arguments in support of QI.
- Reference resources—This section provides links to various reference sources, including Cato’s amicus briefs for noteworthy QI cases, statutory materials, major QI-related Supreme Court cases, and legal research articles.
OTHER QI CONTENT
The main Cato website has its own section on the problems of policing in the U.S., under the heading of Police Tactics and Misconduct. It covers a wide range of problematic policing and criminal justice issues, including the militarization of law enforcement and the dangerous expansion of the reach of federal criminal justice. The section has a substantial collection of blog posts, commentaries, research articles, and videos of panel discussions and interviews. But in a regrettable lapse in site organization, there is no integration between it and Unlawful Shield, with no cross references or links to related content. Users of one site could, therefore, unwittingly overlook the valuable content in the other.
QI FOCUS
Since George Floyd’s death, other important QI-related events occurred. The Supreme Court denied a host of petitions to reconsider QI. Congress introduced three anti-QI bills: one each in the House of Representatives and the Senate to end it and another in the Senate to reform it.
Unlawful Shield closely monitored these significant legal events, as well as recent QI incidents. In the aftermath of Floyd’s death and other recent high-profile cases of police misconduct, the topic of QI will not retreat to its previous obscurity, and Unlawful Shield can be expected to keep its attention focused on it.
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Mick O’Leary has been reviewing databases
and websites for Information Today since
1987.
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