This is the Cater Daily Podcast for Thursday, August 4, 2022.

I'm Caleb Brown.

When agents of the state violate your rights, your ability to sue in civil court hinges critically on qualified immunity.

Just how hard is it to overcome the shield the qualified immunity provides.

I spoke with Institute for Justice Attorney Patrick Giacomo about the largely insurmountable hurdle that the doctrine provides and a new

tool that they've developed that shows just how immune government agents are against liability.

When somebody's rights have been violated by an agent of the state, that could be a police officer, it could be some

sort of government inspector, it could be a public school administrator or a teacher or somebody

who works in the public sector or on behalf of the state.

When they violate your rights and they're for the most part they usually aren't charges filed in those cases but if you wanted to go a step further and say this person violated my rights. I have under federal law and a few state

laws I have an action that I can take in civil court. What do you have to overcome in order to get that case to go anywhere?

You have to overcome qualified immunity, which is something obviously that we've talked about quite a bit in the civil rights space

here for the last few years in particular.

But the rub here is that qualified immunity, which was created by the Supreme Court in 1982 for policy reasons

requires not any sort of common sense application of the law or any sort of

consideration of the constitutional merits of what happened to you, but it simply

requires you as a plaintiff, the person whose rights were violated, to establish

that what happened to you violated clearly established law, which on its face

sounds not unreasonable.

But what that actually means today is that you have to be able to point to an earlier case

by an appellate court where you live that specifically says what happened to you is unconstitutional and so this analysis ends up

boiling down to very fact-specific considerations so literally we've seen

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