Amicus Curiae Brief — National Rifle Association of America, Petitioner v. Maria T. Vullo

No. 25-479

In The

Supreme Court of the United States

NATIONAL RIFLE ASSOCIATION OF AMERICA,

v.

MARIA T. VULLO,

Petitioner,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF THE INSTITUTE FOR JUSTICE AS

AMICUS CURIAE SUPPORTING PETITIONER

PATRICK JAICOMO

Counsel of Record

ANYA BIDWELL

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.,

Ste. 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Pages

Interest of Amicus Curiae.......................................... 1

Summary of Argument .............................................. 2

Argument.................................................................... 4

I. Qualified immunity has a false premise. ............. 4

A. Through the notwithstanding clause, the

legislative record shows that immunities

were excluded from Section 1983. .................. 4

B. Even without the notwithstanding

clause, the text of Section 1983 creates

strict liability. .................................................. 8

C. Pierson overlooked Section 1983 to

create qualified immunity. .............................. 9

II. The Court expanded qualified immunity by

abandoning the text of Section 1983 and the

common law. ....................................................... 11

III.Qualified immunity is most protective of the

least deserving. ................................................... 16

A. Qualified immunity benefits bureaucrats

violating the First Amendment more

than police accused of mistakes in force....... 17

B. Qualified immunity routinely shields the

intentional and incompetent. ........................ 19

Conclusion ................................................................ 23

ii

TABLE OF AUTHORITIES

Cases

Pages

Adickes v. S. H. Kress & Co.,

398 U.S. 144 (1970)................................................ 5

Anderson v. Creighton,

483 U.S. 635 (1987)........................................ 11, 15

Ashcroft v. al-Kidd,

563 U.S. 731 (2011).............................................. 15

Behrens v. Pelletier,

516 U.S. 299 (1996).............................................. 13

Briscoe v. LaHue,

460 U.S. 325 (1983)................................................ 5

Brownback v. King,

592 U.S. 209 (2021)................................................ 1

Butz v. Economou,

438 U.S. 478 (1978)................................................ 5

Central Specialties, Inc. v. Large,

18 F.4th 989 (8th Cir. 2021) ................................ 21

Chapman v. Housing Welfare Rts. Org.,

441 U.S. 600 (1979)............................................... 5

Civil Rights Cases,

109 U.S. 3 (1883).................................................... 5

Crawford-El v. Britton,

523 U.S. 574 (1998).............................................. 11

Davis v. Scherer,

468 U.S. 183 (1984).............................................. 13

iii

DeVillier v. Texas,

601 U.S. 285 (2024)................................................ 1

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022).............................................. 22

Egbert v. Boule,

596 U.S. 482 (2022)................................................ 2

Examining Bd. of Eng’rs, Architects & Surveyors

v. Flores de Otero,

426 U.S. 572 (1976)................................................ 5

Gomez v. Toledo,

446 U.S. 635 (1980).............................................. 14

Gonzalez v. Trevino,

602 U.S. 653 (2024)................................................ 1

Gonzalez v. Trevino,

42 F.4th 487 (5th Cir. 2022) ................................ 21

Hague v. Commission for Indus. Org.,

307 U.S. 496 (1939)................................................ 5

Harlow v. Fitzgerald,

457 U.S. 800 (1982)................................ 2–3, 11–12

Hernandez v. Mesa,

589 U.S. 93 (2020).................................................. 2

Hershey v. Bossier City,

156 F.4th 555 (5th Cir. 2025) .............................. 18

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021).......................................... 17

Hope v. Pelzer,

536 U.S. 730 (2002).............................................. 18

J.T.H. v. Missouri Dept. of Soc. Servs.,

39 F.4th 489 (8th Cir. 2022), ............................... 20

iv

Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701 (1989)................................................ 5

Jimerson v. Lewis,

142 S. Ct. 1220 (2025)............................................ 1

Jimerson v. Lewis,

94 F.4th 423 (5th Cir. 2024) ................................ 20

Joseph v. Bartlett,

981 F.3d 319 (5th Cir. 2020)................................ 15

Liberian Comm. Assoc. of Conn. v. Lamont,

970 F.3d 174 (2d Cir. 2020) ................................. 15

Malley v. Briggs,

475 U.S. 335 (1986).......................................... 3, 16

Martin v. United States,

605 U.S. 395 (2025)................................................ 1

Martin v. United States,

No. 23-10062, 2024 WL 1716235

(11th Cir. Apr. 22, 2024) ...................................... 20

Martinez v. High,

145 S. Ct. 547 (2024).............................................. 1

Martinez v. High,

91 F.4th 1022 (9th Cir. 2023) .............................. 20

McMurry v. Weaver,

142 F.4th 292 (5th Cir. 2025) .............................. 18

Mitchell v. Forsyth,

472 U.S. 511 (1985)........................................ 13–14

Monell v. Department of Soc. Servs.,

436 U.S. 658 (1978)............................................... 5

Monroe v. Pape,

365 U.S. 167 (1961)................................................ 5

v

Murphy v. Schmitt,

No. 22-1726, 2023 WL 5748752

(8th Cir. Sept. 6, 2023) ........................................ 20

Ngiraingas v. Sanchez,

495 U.S. 182 (1990)................................................ 5

Nixon v. Fitzgerald,

457 U.S. 731 (1982).............................................. 11

Novak v. City of Parma,

143 S. Ct. 773 (2023).............................................. 1

Novak v. City of Parma,

33 F.4th 296 (6th Cir. 2022) ................................ 20

NRA v. Vullo,

602 U.S. 175 (2024)................................................ 2

Pierson v. Ray,

386 U.S. 547 (1967).............................. 2–4, 5, 8, 10

Plumhoff v. Rickard,

572 U.S. 765 (2014).............................................. 14

Pollreis v. Marzolf,

9 F.4th 737 (8th Cir. 2021) .................................. 21

Price v. Montgomery Cnty.,

144 S. Ct. 2499 (2024)............................................ 8

Price v. Montgomery Cnty.,

72 F.4th 711 (6th Cir. 2023) .................................. 8

Procunier v. Navarette,

434 U.S. 555 (1978).............................................. 10

Reichle v. Howards,

566 U.S. 658 (2012).............................................. 15

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021).................................................. 14

vi

Rogers v. Jarrett,

63 F.4th 971 (5th Cir. 2023) .................................. 8

Rosales v. Bradshaw,

72 F.4th 1145 (10th Cir. 2023) ............................ 19

Scheuer v. Rhodes,

416 U.S. 232 (1974).............................................. 10

Screws v. United States,

325 U.S. 91 (1945).................................................. 5

Taylor v. Riojas,

592 U.S. 7 (2020).................................................. 18

The Apollon,

22 U.S. (9 Wheat.) 362 (1826) ............................. 22

Villarreal v. City of Laredo,

134 F.4th 273 (5th Cir. 2025) ........................ 17–18

West v. City of Caldwell,

931 F.3d 978 (9th Cir. 2019)................................ 21

Wilson v. Garcia,

471 U.S. 261 (1985)................................................ 5

Wood v. Strickland,

420 U.S. 308 (1975)........................................ 10, 12

Ziglar v. Abbasi,

582 U.S. 120 (2017).......................................... 2, 15

Statutes

28 U.S.C. 1291 ........................................................... 13

42 U.S.C. 1983 ................................................... 2, 8, 11

42 U.S.C. 1985(3) ........................................................ 9

42 U.S.C. 1986 ............................................................. 9

vii

Act of Apr. 30, 1790, 1 Stat. 112 ................................. 6

Act of Feb. 9, 1871, 16 Stat. 594 ................................. 6

Act of May 31, 1870, 16 Stat. 144 ............................... 7

Civil Rights Act of 1866, 14 Stat. 27 .......................... 7

Civil Rights Act of 1871, 17 Stat. 13 .................. 4, 6, 9

Rev. Stat. § 4395 (1874) .............................................. 6

Rev. Stat. § 5323 (1874) .............................................. 6

Rev. Stat. § 1977 (1874) .............................................. 7

Rev. Stat. § 1979 (1874) .............................................. 6

Other Authorities

2 Cong. Rec. 4220 (1874) ............................................. 7

2 Revision of the United States Statutes as

Drafted by the Commissioners Appointed for

that Purpose (1872) ............................................... 6

Alexander A. Reinert, Qualified Immunity’s

Flawed Foundation, 111 Calif. L. Rev. 201

(2023) ...................................................................... 7

Ambassadors and Other Public Ministers, 7 Op.

Att’ys Gen. 186 (1855) ........................................... 6

Andrew S. Oldham, Official Immunity at the

Founding, 46 Harv. J.L. & Pub. Pol’y 105

(2023) .................................................................... 17

Charles Wright & Arthur Miller, Federal Practice

& Procedure (1969) .............................................. 15

Jason Tiezzi, Robert McNamara & Elyse Smith

Pohl, Unaccountable (2024) ........... 1, 13, 14–15, 19

viii

Matteo Godi, Section 1983: A Strict Liability

Statutory Tort, 113 Calif. L. Rev. 101

(forthcoming 2025) ............................................. 8–9

Patrick Jaicomo & Anya Bidwell, Recalibrating

Qualified Immunity, 112 J. Crim. L. &

Criminology 105 (2022). .................................... 2, 8

Patrick Jaicomo & Anya Bidwell, Unqualified

Immunity, 126 Dick. L. Rev. 719 (2022) ..... 1, 7, 13

Patrick Jaicomo & Daniel Nelson, Section 1983

(Still) Displaces Qualified Immunity, 49 Harv.

J.L. & Pub. Pol’y (forthcoming 2026) ................ 1, 7

Ralph H. Dwan & Ernest R. Feidler, The Federal

Statutes—Their History and Use, 22 Minn. L.

Rev. 1008 (1938) .................................................... 6

1

INTEREST OF AMICUS CURIAE 1

The Institute for Justice is a nonprofit public-interest law firm. It defends the foundations of a free

society by securing greater protection for individual

liberty. Central to IJ’s mission is the principle that

the government and its agents must be held accountable when they violate the Constitution. IJ advances

this principle through its Project on Immunity and

Accountability, which seeks to remove unwarranted

obstacles between rights and remedies.

IJ has litigated dozens of immunity and accountability issues across the country, including in this

Court. 2 Germane here, IJ has repeatedly urged the

Court to reconsider or recalibrate the doctrine of qualified immunity. 3 And IJ has published multiple scholarly works explaining how the doctrine contradicts

congressional intent and reflects improper judicial

policymaking. 4

1 No counsel for a party authored this amicus brief in whole

or in part. No person other than Amicus has made any monetary

contributions intended to fund the preparation or submission of

this brief. Amicus timely notified the parties it intended to file

this brief under Rule 37.6.

2 E.g., Martin v. United States, 605 U.S. 395 (2025); Gonzalez

v. Trevino, 602 U.S. 653 (2024); DeVillier v. Texas, 601 U.S. 285

(2024); Brownback v. King, 592 U.S. 209 (2021).

3 E.g., Jimerson v. Lewis, 145 S. Ct. 1220 (2025) (mem.); Mar-

tinez v. High, 145 S. Ct. 547 (2024) (mem.); Novak v. City of

Parma, 143 S. Ct. 773 (2023) (mem.).

4 E.g., Patrick Jaicomo & Daniel Nelson, Section 1983 (Still)

Displaces Qualified Immunity, 9 Harv. J.L. & Pub. Pol’y (forthcoming 2026); Jason Tiezzi, Robert McNamara & Elyse Smith

Pohl, Unaccountable (2024); Patrick Jaicomo & Anya Bidwell,

Unqualified Immunity, 126 Dick. L. Rev. 719 (2022); Patrick

2

SUMMARY OF ARGUMENT

The Court has recently and repeatedly pronounced

that the legislature, not the judiciary, is the branch of

government best suited to weigh the policy considerations implicated in deciding whether to provide a

damages remedy for constitutional violations. 5 For

those committed under color of state law, Congress

did just that by enacting Section 1983. But the Court’s

creation of the qualified immunity doctrine in Pierson

v. Ray, Harlow v. Fitzgerald, and their progeny disregards the statutory text and congressional prerogative.

With sweeping and unqualified language, Section

1983 guarantees that “[e]very person who subjects

any person to the deprivation of any rights secured by

the Constitution shall be liable in an action at law.”

42 U.S.C. 1983 (abridged). Yet, as this case exemplifies, qualified immunity thwarts this liability: A New

York State bureaucrat orchestrated a sophisticated

pressure campaign to punish a policy advocacy group

for its protected speech. In its earlier decision here,

the Court unanimously held this was unconstitutional. NRA v. Vullo, 602 U.S. 175 (2024). Even so,

qualified immunity ensures, contrary to the text of

Section 1983, that Vullo shall not be liable—unless

this Court intervenes again.

Jaicomo & Anya Bidwell, Recalibrating Qualified Immunity, 112

J. Crim. L. & Criminology 105 (2022).

5 See, e.g., Egbert v. Boule, 596 U.S. 482, 490–492 (2022);

Hernandez v. Mesa, 589 U.S. 93, 99–102 (2020); Ziglar v. Abbasi,

582 U.S. 120, 130–137 (2017).

3

The NRA’s petition rightly criticizes the Second

Circuit for its misapplication of qualified immunity’s

clearly established test. But the doctrine’s application

is just a symptom. The Court should grant certiorari

to probe the real source of the constitutional disease:

qualified immunity. The doctrine overrides the policymaking role of Congress in our constitutional system.

The Court initially justified the doctrine, in Pierson v.

Ray, on the premise that the “legislative record [for

Section 1983] g[ave] no clear indication that Congress

meant to abolish wholesale all common-law immunities.” 386 U.S. 547, 554 (1967). But both the statute’s

text and its original “notwithstanding clause” prove

Pierson’s premise was false. Worse still, the Court entirely decoupled qualified immunity from Section

1983 and the common law in Harlow v. Fitzgerald. As

it exists today, the doctrine represents pure judicial

policymaking.

In addition to usurping the role of Congress, qualified immunity is bad policy. The doctrine is more protective of desk-bound bureaucrats concocting schemes

to silence their critics than well-meaning police making split-second decisions about the use of force. The

doctrine should be, at a minimum, withheld from the

former and limited to the latter. And it should never,

as the Court long ago promised, shield the “plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986). Unfortunately, research and experience have shown that

qualified immunity is more protective of officials like

Vullo than beat cops making difficult decisions under

deadly circumstances, and the doctrine routinely

spares the incompetent and malicious from the

4

liability created in Section 1983. To see an example,

the Court need only look to the facts here.

The Court should grant the petition, revisit the

doctrine of qualified immunity, and deny its ample

protection to officials like Vullo, who are insulated

from the difficulties of on-the-spot decision making.

ARGUMENT

I.

Qualified immunity has a false premise.

The Court engrafted qualified immunity onto Section 1983 in Pierson v. Ray, drawing its elements from

the Mississippi common-law defense of good faith and

probable cause. 386 U.S. at 555–557. Although the

Court acknowledged that the text of Section 1983

“makes liable ‘every person’ who under color of law

deprives another person of his civil rights,” Pierson

concluded that the “legislative record g[ave] no clear

indication that Congress meant to abolish” commonlaw defenses and immunities. Id. at 554. So Pierson

interpreted Section 1983 to incorporate a qualified

immunity, sparing police officers liability if they “reasonably believed in good faith” that their actions were

constitutional. Id. at 557. But Pierson’s premise was

badly wrong.

A. Through the notwithstanding clause, the

legislative record shows that immunities

were excluded from Section 1983.

Congress passed what is now Section 1983 as part

of the Civil Rights Act of 1871—“An Act to enforce the

Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.” Ch. 22, § 1, 17 Stat. 13. As originally enacted,

Reconstruction Congress’s language removed any

5

doubt that it intended to create strict constitutional

liability: “That any person who shall subject any person to the deprivation of any rights secured by the

Constitution shall, any such law, statute, ordinance,

regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured.”

Ibid. (abridged, emphasis added). Although the petitioner cited it, 6 and the Court has quoted it both before and after, 7 Pierson made no mention of the statute’s notwithstanding clause. This is peculiar because, surely, it provides the indication Pierson

claimed was lacking in the record.

Still, Pierson may have overlooked the notwithstanding clause because it was snipped from the statute just three years after enactment. During codification, as the Revisers worked diligently to organize and

streamline the unwieldy body of federal law into the

6 Brief for Petitioner, Pierson v. Ray, 386 U.S. 547 (1967)

(Nos. 79 & 94), 1966 WL 100720, at 3 n.* (arguing notwithstanding clause “textually made it even clearer that no [] immunity

was intended”).

7 Ngiraingas v. Sanchez, 495 U.S. 182, 188 n.8 (1990); Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 723 (1989); Wilson v. Garcia, 471 U.S. 261, 262 n.1 (1985); Chapman v. Housing Welfare

Rts. Org., 441 U.S. 600, 608 n.15 (1979); Butz v. Economou, 438

U.S. 478, 502 n.29 (1978); Monell v. Department of Soc. Servs.,

436 U.S. 658, 691–692 (1978); Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 582 n.11

(1976); Monroe v. Pape, 365 U.S. 167, 181 n.27 (1961); Screws v.

United States, 325 U.S. 91, 99 n.8 (1945); Hague v. Commission

for Indus. Org., 307 U.S. 496, 510 (1939); Civil Rights Cases, 109

U.S. 3, 16 (1883); see also Briscoe v. LaHue, 460 U.S. 325, 357

n.17 (1983) (Marshall, J., dissenting); Adickes v. S. H. Kress &

Co., 398 U.S. 144, 203 n.15 (1970) (Brennan, J., concurring in

part and dissenting in part).

6

first United States Code, the clause was omitted. Like

the other statutes being trimmed (often substantially 8), the Civil Rights Act was pruned for concision.

The notwithstanding clause was omitted through this

process. Compare Civil Rights Act of 1871, ch. 22, § 1,

17 Stat. 13 (clause), with Rev. Stat. § 1979 (1874) (no

clause). And though intentional, it was expected to

have no substantive effect. As one of the Revisers put

it, a statute that contained a notwithstanding clause

would retain its full effect—with or “without that

clause.” 9

8 Congress directed the Revisers to codify all the federal public laws from the first 17 volumes of the U.S. Statutes at Large

(excluding, it seems, volumes 6–8, which cover private laws and

treaties). These 14 volumes total over 13,000 pages. The Revisers’ ability to condense down to under 2,700 pages was much due

to obsolete laws, which they did not need to codify. Without question though, the Revisers also lowered the page count by substantially simplifying text where they could. That is clear by

comparing their revisions to any number of statutes as originally

enacted in the Statutes at Large. Compare Act of Apr. 30, 1790,

ch. 9, § 10, 1 Stat. 112, 114 (original enactment containing 124

words), with Rev. Stat. § 5323 (1874) (reducing provision to 42

words), and 2 Revision of the United States Statutes as Drafted

by the Commissioners Appointed for that Purpose 2561 (1872) (2

Revisers’ 1872 Draft at 2113) (reducing to 25 words). The Revisers also removed unnecessary formal words wherever they could.

Compare Act of Feb. 9, 1871, ch. 22, § 1, 16 Stat. 594 (“That the

President be, and he hereby is, authorized and required to appoint * * * .”), with 2 Revisers’ 1872 Draft at 2113 (“There shall

be appointed by the President”), and Rev. Stat. § 4395 (1874)

(same).

9 Ambassadors and Other Public Ministers, 7 Op. Att’ys Gen.

186, 216 (1855); see also Ralph H. Dwan & Ernest R. Feidler,

The Federal Statutes—Their History and Use, 22 Minn. L. Rev.

1008, 1013 (1938) (noting Caleb Cushing, former Attorney General, was Reviser chairman).

7

Congress likewise believed that omitting Section

1983’s notwithstanding clause would leave the statute’s sweep unchanged. Its stated goal with the Revised Statutes of 1874 was to bring together and simplify, yet “preserve,” the law as it was. See 2 Cong.

Rec. 4220 (1874) (statement of Sen. Conkling). So

when the Revisers submitted their draft of the code,

Congress spent the next year undoing any revisions

that might alter substance, while leaving in “mere

changes of phraseology not affecting the meaning of

the law.” 2 Cong. Rec. 646 (1874) (statement of Rep.

Poland). This is why Congress did not undo the Revisers’ omission of Section 1983’s notwithstanding clause

(or their omission of near-verbatim clauses in Sections 1981 and 1982 10). Congress knew the omission

did not change the statutory meaning, and the evidence is overwhelming. See generally Patrick Jaicomo

& Daniel Nelson, Section 1983 (Still) Displaces Qualified Immunity, 49 Harv. J.L. & Pub. Pol’y (forthcoming 2026) (providing a full analysis of the notwithstanding clause and the history surrounding its omission from Section 1983).

Recent scholarship has rediscovered the “gamechanging” text, history, and context of the notwithstanding clause. 11 Rogers v. Jarrett, 63 F.4th 971, 980

10 Compare Civil Rights Act of 1866, § 1, 14 Stat. 27 (guar-

anteeing rights “any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding”), with Rev. Stat. § 1977

(1874) (omitting clause); compare Act of May 31, 1870, § 16, 16

Stat. 144 (same clause), with Rev. Stat. § 1977 (1874) (omitting

clause).

11 Alexander A. Reinert, Qualified Immunity’s Flawed Foun-

dation, 111 Calif. L. Rev. 201 (2023); see also Jaicomo & Bidwell,

Unqualified Immunity, 126 Dick. L. Rev. at 730 n.66, 735 n.87;

8

(5th Cir. 2023) (Willett, J., concurring). The notwithstanding clause’s “language is unsubtle and categorical, seemingly erasing any need for unwritten, gapfilling implications, importations, or incorporations.

Rights-violating state actors are liable—period—notwithstanding any state law to the contrary.” 12 Ibid.

Pierson was simply wrong to overlook one crucial aspect of the “legislative record”: the original statutory

text.

B. Even without the notwithstanding clause,

the text of Section 1983 creates strict liability.

As Pierson observed, Section 1983 still admitted

no exceptions, even stripped of its notwithstanding

clause. At the time, as today, it provided: “Every person who subjects any person to the deprivation of any

rights secured by the constitution shall be liable in an

action at law.” 42 U.S.C. 1983 (abridged); Pierson, 386

U.S. at 548 n.1.

From its text, Section 1983 provides a strict liability statutory tort. See generally Matteo Godi, Section

1983: A Strict Liability Statutory Tort, 113 Calif. L.

Rev. 101 (forthcoming 2025). “[T]he injurious act—the

deprivation of a federal right—is the trigger for liability; the only standard of conduct (or duty) is to refrain

Jaicomo & Bidwell, Recalibrating Qualified Immunity, 112 J.

Crim. L. & Criminology at 122 n.118.

12 Accord Price v. Montgomery County, 144 S. Ct. 2499, 2500

n.2 (2024) (mem.) (Sotomayor, J., respecting the denial of cert.);

Price v. Montgomery County, 72 F.4th 711, 727 n.1 (6th Cir.

2023) (Nalbandian, J., concurring in part and concurring in judgment).

9

from depriving another of any right, privilege, or immunity secured by federal law.” Id. at 112.

And the strict liability nature of Section 1983 is

reaffirmed when considered alongside other provisions of the Civil Rights Act of 1871. Compare, for instance, Sections 1985(3) and 1986. See Civil Rights

Act of 1871, ch. 22, §§ 2, 6, 17 Stat. 13, 13–15. Unlike

Section 1983, neither Section 1985(3) nor 1986 creates strict liability because Congress specifically included requirements of purpose and knowledge, respectively. 42 U.S.C. 1985(3) (“for the purpose of”),

1986 (“having knowledge that”). This demonstrates

that “Congress knew how to write a cause of action for

a fault-based tort. It just chose not to for Section

1983.” Godi, 113 Calif. L. Rev. at 113.

With or without the notwithstanding clause, the

text is clear. Congress made “every person” liable for

“any” violation of constitutional rights. Congress went

out of its way to draft a statute that would not be subject to restrictions or other considerations external to

its text. “Congress plainly enacted a broad statute

that imposes strict liability for all deprivations of

rights under federal law at the hands of state actors,

and that would normally be the end of any judicial inquiry.” Godi, 113 Calif. L. Rev. at 117. It should have

been.

C. Pierson overlooked Section 1983 to create

qualified immunity.

Pierson overlooked the text and legislative record

of Section 1983. Both communicated that Congress intended to displace all defenses or immunities to liability under the statute, but Pierson created qualified

immunity anyhow. This new defense allowed

10

Mississippi police to avoid liability under Section

1983 for arresting freedom riders under an unconstitutional state statute. All the officers had to do was

establish their good faith and reasonableness in following the law. Pierson, 386 U.S. at 557 (“[I]f the jury

found that the officers reasonably believed in good

faith that the arrest was constitutional, then a verdict

for the officers would follow even though the arrest

was in fact unconstitutional.”). And just like that,

some people who violated constitutional rights under

color of state law were no longer liable under Section

1983.

Once Pierson injected immunity into the statute,

the Court continued to spread it without revisiting

the underlying (false) premise. In Scheuer v. Rhodes,

for instance, the Court transported Pierson’s immunity from the context of police making an illegal arrest

in Mississippi to shield claims made against the Governor of Ohio for his actions related to the Kent State

shootings. 416 U.S. 232, 233–234 (1974). In Wood v.

Strickland, the Court extended immunity to school officials, clarifying that the standard contained both

subjective (“good faith”) and objective (“reasonableness”) elements. 420 U.S. 308, 321–322 (1975). And in

Procunier v. Navarette, the Court ultimately extended

qualified immunity to all state and local officials. See

434 U.S. 555, 568 (1978) (Stevens, J., dissenting).

By this point, the Court’s theoretical reliance on

the common law was coming loose. Procunier, 434

U.S. at 568–569 (Stevens, J., dissenting). The qualified immunity defense had no purported connection to

the elements of any specific common-law privilege. Instead, it provided a one-size-fits-all immunity to government officials accused of any constitutional

11

violations, regardless of circumstance. And the notwithstanding clause had all but faded from memory.

Were the Court’s qualified immunity jurisprudence still tethered to the common law or text of Section 1983, the foregoing would be doctrinally fatal.

But the Court has explicitly and fully unmoored its

qualified immunity jurisprudence from Section 1983’s

text and the text’s ostensible incorporation of the common law. So, it is genuinely unclear whether the text

or common law remains salient to the analysis.

II.

The Court expanded qualified immunity by

abandoning the text of Section 1983 and the

common law.

In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the

Court “completely reformulated qualified immunity

along principles not at all embodied in the common

law.” Anderson v. Creighton, 483 U.S. 635, 645 (1987).

Announcing a new “clearly established” test, the

Court gave up the pretext of statutory interpretation

and shifted exclusively to judicial policymaking. See

Crawford-El v. Britton, 523 U.S. 574, 594 & n.15

(1998) (noting that the text of Section 1983 does not

“provide any support for * * * the qualified immunity

defense”).

Harlow began from the dubious premise that “government officials are entitled to some form of immunity from suit for damages.” 457 U.S. at 806 (citing

Nixon v. Fitzgerald, 457 U.S. 731 (1982)). But see 42

U.S.C. 1983 (“Every person * * * shall be liable.”).

From there, Harlow determined it would weigh competing values: on one side of its policy scale, it placed

“protect[ing] the rights of citizens”; on the other, it

laid shielding officials from “insubstantial lawsuits.”

12

Harlow, 457 U.S. at 806–807, 813–815. To reach its

preferred policy balance, Harlow determined that

Pierson’s qualified immunity “require[d] an adjustment.” Id. at 815.

According to the Court, adjudicating good faith

was simply too costly because it required factfinding.

Harlow, 457 U.S. at 816–817. Harlow, therefore,

struck good faith from consideration and announced

the “clearly established” test that still governs today:

[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or

constitutional rights[13] of which a reasonable

person would have known.

Id. at 818. In announcing this test, Harlow assured,

however, that it provided “no license to lawless conduct.” 457 U.S. at 819. This promise is impossible to

defend today.

Since Harlow, the Court has repeatedly modified

qualified immunity in ways that have no relationship

to the text of Section 1983 or the common law. Instead, the Court has continued to make policy-based

13 Harlow’s exclusive reliance on “clearly established statu-

tory or constitutional rights” is perplexing because Justice Powell, who authored Harlow, had just seven years earlier objected

to that standard as a requirement for immunity in Wood v.

Strickland, 420 U.S. at 328 (Powell, J., dissenting in part). Dissenting in Wood, Justice Powell argued that the reliance on

“clearly established” law “rest[ed] on an unwarranted assumption as to what lay * * * officials know or can know about the

law and constitutional rights.” Id. at 328–329.

13

additions to the doctrine, nearly all of which make it

more difficult to vindicate constitutional violations

under Section 1983.

First, although Harlow involved claims against

federal officials—allowing the Court to avoid any consideration of Section 1983’s text—the Court took the

doctrine and attached it to Section 1983. But, unlike

in Pierson, the Court nowhere purported to consider

the text or appropriate background principles. Instead, the Court merely observed, “our cases have recognized that the same qualified immunity rules apply

in suits against state officers under § 1983 and in

suits against federal officers under Bivens.” Davis v.

Scherer, 468 U.S. 183, 194 n.12 (1984). But see generally Patrick Jaicomo & Anya Bidwell, Unqualified Immunity, 126 Dick. L. Rev. 719 (2022) (discussing how

the Court has inconsistently used Bivens to build up

qualified immunity while simultaneously tearing

down Bivens).

Second, the Court greatly expanded the otherwise

narrow and selective collateral order doctrine—and

along with it, all federal appellate jurisdiction—to

permit immediate interlocutory appeals for qualified

immunity denials. Mitchell v. Forsyth, 472 U.S. 511

(1985). But see 28 U.S.C. 1291 (limiting jurisdiction

to the review of “final decisions”). The Court again appealed to policy. Relying on the observation that Harlow created “an immunity from suit rather than a

mere defense to liability,” the Court determined that

the policy benefits of qualified immunity would be

“lost if a case is erroneously permitted to go to trial.”

Mitchell, 472 U.S. at 526. And the same considerations, the Court went on to hold, also allow multiple

14

appeals in a single case. Behrens v. Pelletier, 516 U.S.

299, 310–311 (1996).

This procedural grant has transformed Section

1983 litigation. A recent empirical study found that

96% of all qualified immunity appeals are interlocutory. Jason Tiezzi, Robert McNamara & Elyse Smith

Pohl, Unaccountable 19 fig. 6, 27 (2024), available at

https://ij.org/report/unaccountable/. As a result, cases

involving qualified immunity last 23% longer than

other lawsuits. Id. at 27. By making litigation a war

of attrition, Mitchell has been a windfall to government officials accused of constitutional chicanery.

And real-world analysis proves that Justice Brennan

Idwas right in Mitchell: “[A] rule allowing immediate

appeal imposes enormous costs on plaintiffs and on

the judicial system as a whole.” 472 U.S. at 555 (Brennan, J., concurring in part and dissenting in part); id.

at 556 (“I fear that today’s decision will give government officials a potent weapon to use against plaintiffs, delaying litigation endlessly with interlocutory

appeals.”).

Third, the Court stealthily shifted the burden of

overcoming the clearly established test from defendants to plaintiffs. Although the Court has never directly addressed this issue, it has repeatedly placed

the burden on plaintiffs. See, e.g., Rivas-Villegas v.

Cortesluna, 595 U.S. 1, 6 (2021) (per curiam) (“Cortesluna [the plaintiff] must identify a case that put

Rivas-Villegas [the defendant] on notice that his specific conduct was unlawful.”); Plumhoff v. Rickard,

572 U.S. 765, 779–780 (2014) (“To defeat immunity

here, then, respondent [the plaintiff] must show at a

15

minimum * * * .”). Unlike most defenses, 14 all a Section 1983 defendant must do is cry out, “Qualified immunity!” Then, courts rush to demand the plaintiff

prove the defendant is not entitled to it. See, e.g., Joseph v. Bartlett, 981 F.3d 319, 328–331 (5th Cir. 2020)

(discussing how qualified immunity “involves significant departures from the norms of civil litigation”).

Fourth, the Court has continuously constricted the

meaning of “clearly established law.” Victims of constitutional abuse cannot rely on the violation of their

“general right[s],” but must identify “particularized”

applications of those rights, making them “sufficiently clear that a reasonable official would understand that what he is doing violates” them. Anderson,

483 U.S. at 638–641. Eventually, this standard came

to require such specificity that “every” reasonable official would have understood his “particular conduct”

was unconstitutional. Ashcroft v. al-Kidd, 563 U.S.

731, 741–742 (2011). Then, “existing precedent [had

to] place[] the constitutional question beyond debate.”

Reichle v. Howards, 566 U.S. 658, 664 (2012). Finally,

the Court announced that a “reasonable officer [must]

have known for certain that the conduct was unlawful.” Ziglar v. Abbasi, 582 U.S. 120, 152 (2017) (emphasis added). Otherwise, she is immune.

So exacting are these standards that qualified immunity is effectively a matter of judicial grace. If a

Court wants to grant immunity, it can identify some

14 Under Pierson’s immunity regime, the defendant had the

burden of establishing entitlement to immunity. Gomez v. Toledo, 446 U.S. 635, 638–641 (1980); id. at 640 (citing Fed. R. Civ.

P. 8(c); 5 Charles Wright & Arthur Miller, Federal Practice &

Procedure § 1271 (1969)).

16

uncertainty. Tiezzi et al., Unaccountable, at 20–21 &

figs. 9, 11 (noting enormous disparities among the circuits in the application of qualified immunity). This is

what the Second Circuit did below to immunize Vullo

for her unconstitutional jawboning campaign. Pet.

App. 25a, 28a–29a (citing Liberian Cmty. Ass’n of

Conn. v. Lamont, 970 F.3d 174, 187 (2d Cir. 2020)

(“known for certain”), and concluding, “Vullo is entitled to qualified immunity because the effect of her

alleged coercion of and retaliation against these regulated entities on the NRA’s speech is significantly

more attenuated here than in the cases cited [by the

NRA].”).

III. Qualified immunity is most protective of

the least deserving.

In Harlow, the Court assured that “[b]y defining

the limits of qualified immunity essentially in objective terms, [the Court] provide[s] no license to lawless

conduct.” But the long arc of qualified immunity

raises (at least) two questions about its value as a policy tool. First, if qualified immunity was created to

protect police who make good faith mistakes, has its

expansion helped or hurt the archetypal recipient of

the doctrine’s protection? Second, is the Court’s oftquoted statement—that qualified immunity protects

all “but the plainly incompetent or those who knowingly violate the law”—true? Malley v. Briggs, 475

U.S. 335, 341 (1986). The answer to both questions is,

“No.”

This case, again, illustrates the ugly truth about

qualified immunity. Sitting behind a desk in her high

office, Vullo had all the time she needed to think, all

the counsel she could have imagined to decide, and

17

full perspective to inform her how to act. Rather than

reconsider her plan, she used all those things to silence a voice she disliked. Vullo knew her intentional

campaign to silence the NRA for its speech and advocacy violated the First Amendment or she was staggeringly incompetent. Either way, she was spared the

liability Section 1983’s text requires.

A. Qualified immunity benefits bureaucrats

violating the First Amendment more than

police accused of mistakes in force.

As Justice Thomas recently noted, “the one-sizefits-all doctrine [of qualified immunity] is [] an odd fit

for many cases because the same test applies to officers who exercise a wide range of responsibilities and

functions.” Hoggard v. Rhodes, 141 S. Ct. 2421, 2421

(2021) (mem.) (respecting denial of cert.). After all,

“why should * * * officers, who have time to make

calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a

police officer who makes a split-second decision to use

force in a dangerous setting?” Id. at 2422. The answer

is certainly nowhere to be found in the text of Section

1983 or the common law of 1871. Id. at 2421–2422.

As Fifth Circuit Judge Andrew Oldham has observed, the “archetypal qualified immunity case” is

one involving “excessive [police] force.” Andrew S.

Oldham, Official Immunity at the Founding, 46 Harv.

J.L. & Pub. Pol’y 105, 107 (2023). “Officers are often

forced to decide, in the blink of an eye, if using deadly

force is necessary to save or protect themselves or the

innocent public.” Villarreal v. City of Laredo, 134

F.4th 273, 282 (5th Cir. 2025) (en banc) (Oldham, J.,

concurring). If the purpose of qualified immunity is—

18

as it was in Pierson—to shield these officers under

these circumstances, it is not apparent why the doctrine should ever shield an official like Vullo. Id. at

283.

Vullo had sufficient “time to make calculated

choices.” Hoggard, 141 S. Ct. at 2422 (Thomas, J., respecting denial of cert.). This means that she “cannot

complain that [she was] compelled to take action

which turned out to be founded on a mistake.” Villarreal, 134 F.4th at 283 (Oldham, J., concurring)

(cleaned up, citation omitted). “Before acting, [Vullo]

could have read Supreme Court precedent, studied

the history of the First Amendment, or even consulted

counsel. [She] thus had or should have had ample ‘fair

notice’ of the lawfulness vel non of [her] conduct.”

Ibid. (citation omitted); see also McMurry v. Weaver,

142 F.4th 292, 304–307 (5th Cir. 2025) (Ho, J., concurring).

Granting Vullo immunity under these circumstances makes little sense, and it conflicts with the

Court’s jurisprudence confirming that qualified immunity does not apply to obvious constitutional violations. Taylor v. Riojas, 592 U.S. 7 (2020) (per curiam);

Hope v. Pelzer, 536 U.S. 730 (2002). As Judge Oldham

explained, the obviousness-exception cases take an

“approach to the level-of-granularity problem” that

“might be explained by the absence of split-second decision-making.” Villarreal, 134 F.4th at 284.

Here, the NRA ably explains why Vullo’s actions

were obviously unconstitutional and, otherwise, violated clearly established law. Still, the Court should

engage with these issues from first principles to provide clarity to the bench and bar about when qualified

19

immunity should and should not apply to desk-bound

bureaucrats like Vullo. The need is urgent for two reasons.

First, some circuits have already set to work narrowing Taylor’s exception to qualified immunity. See

Hershey v. Bossier City, 156 F.4th 555, 559 (5th Cir.

2025) (Ho., J., concurring) (“In our circuit, Hope and

Taylor apply only to the Eighth Amendment claims of

incarcerated criminals. They do not apply to the First

Amendment claims of law-abiding citizens.”). But see,

e.g., Rosales v. Bradshaw, 72 F.4th 1145, 1156–1159

(10th Cir. 2023) (applying the obviousness exception

outside the prison context).

Second, recent research shows that 50% of all

qualified immunity appeals involve claims against

non-police, and 21% involve neither police nor prison

officials. Tiezzi et al., Unaccountable, at 4, 17 fig. 3. In

total, just 23% of qualified immunity appeals involve

the archetypal scenario: police accused of excessive

force. Id. at 4, 23. Perhaps surprisingly, though relevant here, 18% of appeals address First Amendment

violations. Id. at 18 & fig. 4. And of these, 59% involved allegations of premeditated abuse by government officials in retaliation for protected activity. Id.

at 4, 24 & fig. 14.

B. Qualified immunity routinely shields the

intentional and incompetent.

Not only do Vullo’s actions highlight the questions

surrounding whether qualified immunity should protect desk-bound bureaucrats, they also challenge Malley’s rhetorical exclusion from qualified immunity of

intentional and incompetent acts. Vullo is not an outlier in this regard.

20

Among the Institute for Justice’s cases alone,

there are many examples of lawless behavior, carried

out by intentionally malicious or incompetent government officials, who were granted qualified immunity.

Here are ten:

•

FBI agent granted qualified immunity for raiding wrong house without checking posted address. Martin v. United States, No. 23-10062,

2024 WL 1716235 (11th Cir. Apr. 22, 2024),

rev’d on other grounds, 605 U.S. 395 (2025).

•

Police officer granted qualified immunity for

disclosing domestic violence victim’s confidential report to abuser, causing brutal assault.

Martinez v. High, 91 F.4th 1022 (9th Cir. 2023),

cert. denied, 145 S. Ct. 547 (2024) (mem.).

•

Police officer granted qualified immunity for

arresting pedestrian in retaliation for speech

critical of officer. Murphy v. Schmitt, No. 221726, 2023 WL 5748752 (8th Cir. Sept. 6,

2023), rev’d on other grounds, 145 S. Ct. 122

(2024) (mem.).

•

SWAT commander granted qualified immunity

for raiding wrong house without checking

posted address. Jimerson v. Lewis, 94 F.4th

423 (5th Cir. 2024), cert. denied, 145 S. Ct.

1220 (2025) (mem.) (Sotomayor & Jackson, JJ.,

would grant cert.).

•

Child-welfare official granted qualified immunity for retaliating against family that threatened lawsuit. J.T.H. v. Missouri Dep’t of Soc.

Servs., 39 F.4th 489 (8th Cir. 2022), cert. denied sub nom. J.T.H. v. Cook, 143 S. Ct. 579

(2023).

21

•

Police granted qualified immunity for raiding

and arresting man for parodying them on social

media. Novak v. City of Parma, 33 F.4th 296

(6th Cir. 2022), cert. denied, 143 S. Ct. 773

(2023) (mem.).

•

County road engineer granted qualified immunity for seizing and detaining trucks and

employees of local business he disliked. Central

Specialties, Inc. v. Large, 18 F.4th 989 (8th Cir.

2021), cert. denied, 143 S. Ct. 369 (2022)

(mem.).

•

Police officer granted qualified immunity for

pointing gun at and seizing 12- and 14-year-old

brothers, while searching for adult suspects.

Pollreis v. Marzolf, 9 F.4th 737 (8th Cir. 2021),

cert. denied, 142 S. Ct. 904 (2022) (mem.)

•

Mayor and city officials granted qualified immunity for having critic arrested. Gonzalez v.

Trevino, 42 F.4th 487 (5th Cir. 2022), rev’d on

other grounds, 602 U.S. 653 (2024).

•

Police granted qualified immunity for destructively entering house they had consent and a

key to search. West v. City of Caldwell, 931 F.3d

978 (9th Cir. 2019), cert. denied sub nom. West

v. Winfield, 141 S. Ct. 111 (2020) (mem.).

Were it true that incompetence or intentionality

excluded officials from qualified immunity, none of

the preceding decisions would have entered. But the

reality is that qualified immunity has made constitutional accountability into a game of judicial whack-amole.

*

*

*

22

The doctrine of qualified immunity has no basis in

Section 1983 or good policy. It is long past time for the

Court to revisit one of its worst lines of precedent and

tear it out, root and branch. Because qualified immunity perpetuates an egregious, damaging error, is

based on exceptionally weak reasoning, necessitates

unworkable rules, disrupts other areas of law, and

cannot support a reliance interest, it should be reconsidered. See Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215, 267–292 (2022) (stating bases for overruling precedent).

As Justice Story long ago explained, “this Court

can only look to the questions, whether the laws have

been violated; and if they were, justice demands that

the injured party should receive a suitable redress.”

The Apollon, 22 U.S. (9 Wheat.) 362, 367 (1826). Any

other considerations, like those of policy, “belong more

properly to another department of the government.”

Id. at 366. Since it is the province of the judiciary to

say what the law is, not what it should be, the Court

should revisit qualified immunity, or at least rein it

in. The doctrine has no foundation in Section 1983 or

the common law that existed when Congress passed

America’s landmark civil rights statute in the wake of

the Civil War.

If we, the people, must follow the law, the agents

of our government must follow our Constitution. But

in contravention of the statutory text passed by Congress, qualified immunity regularly excuses them

from their oaths.

23

CONCLUSION

The Court should grant the petition and reconsider the doctrine of qualified immunity or, at least,

limit the doctrine to the greatest extent possible

within the scope of the questions presented.

Respectfully submitted,

PATRICK JAICOMO

Counsel of Record

ANYA BIDWELL

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

Counsel for Amicus Curiae

November 19, 2025