In February 2017, Tina Cates arrived at the Nevada High Desert State Prison to visit her longtime boyfriend.  Cates visited the correctional facility frequently and was accustomed to submitting to standard inspection procedures.  On this occasion, however, two criminal investigators with the Nevada Office of the Inspector General, responding to a tip that Cates might bring drugs into the prison, escorted Cates to a separate administrative building and ordered Cates to remove all her clothes and her tampon.  One of the investigators then conducted a visual inspection of Cates’s person and body cavities but found no drugs or other contraband.  At no point during the encounter did anyone inform Cates that she was free to leave the prison rather than undergo the invasive search.

Cates filed a lawsuit pursuant to 42 U.S.C. § 1983, a statute that authorizes damages actions against state and local officials for constitutional violations, asserting that the state investigators and several prison officials violated her Fourth Amendment right to be free from unreasonable searches, as incorporated against the states through the Fourteenth Amendment.  The U.S. Court of Appeals for the Ninth Circuit agreed that the officers violated Cates’s Fourth Amendment rights, but nonetheless held the officers were entitled to qualified immunity because Cates’s rights were not “clearly established” at the time of the incident.  Cates then filed a petition for a writ of certiorari, asking the Supreme Court to review the decision.

CAC filed an amicus brief in support of the certiorari petition, urging the Supreme Court to grant the petition, reverse the lower court’s decision, and use this opportunity to reform or eliminate its qualified immunity doctrine.  As our brief explains, qualified immunity has no grounding in the text or history of 42 U.S.C. § 1983.  That statute, enacted in a landmark civil rights law of the Reconstruction era, was meant to deter constitutional violations by state and local officials by providing victims with a federal damages remedy.  While Congress intended Section 1983 to incorporate certain well-known immunities that were recognized by the common law at the time, today’s qualified immunity rules have no relationship to those historically established standards.  Instead, these rules often make it impossible to hold officials accountable for their constitutional violations.

Furthermore, our brief explains why today’s qualified immunity doctrine is at odds with the purposes of both the Fourth and Fourteenth Amendments.  The Framers of the Fourth Amendment viewed the Amendment as a bulwark against unjustified searches of persons, and they would have viewed a strip search as the ultimate invasion of privacy and security that they wrote the Amendment to protect against.  They expected that victims of unlawful searches would be able to protect their rights, and deter future violations, through jury trials and damages awards.

After the Civil War, the Framers of the Fourteenth Amendment sought to expand this protection and other safeguards of the Bill of Rights to cover state governments, which were then flagrantly violating individual rights across the South, including through brutal law enforcement violence against formerly enslaved people and their allies.  Congress later passed Section 1983 to help people vindicate these rights by holding state and local officials financially accountable for their constitutional violations.  Today, however, the Supreme Court’s qualified immunity doctrine allows those same types of violations to go unchecked, undermining the broad, remedial aim of the law that Congress passed.