Amicus Curiae Brief — Jennie V. Wright, et al., Petitioners v. Louisville Metro Government, et al.
Supreme Court briefJan 6, 2026
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No. 25-696
In The
Supreme Court of the United States
JENNIE V. WRIGHT AND SAUL WRIGHT,
Petitioners,
v.
LOUISVILLE METRO GOVERNMENT, ET AL.,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
BRIEF FOR THE INSTITUTE FOR JUSTICE
AS AMICUS CURIAE IN SUPPORT OF
PETITIONERS
PATRICK JAICOMO
ANYA BIDWELL
INSTITUTE FOR JUSTICE
901 N. Glebe Rd., Ste. 900
Arlington, VA 22203
(703) 682-9320
KATRIN MARQUEZ
Counsel of Record
INSTITUTE FOR JUSTICE
2 S. Biscayne Blvd., Ste. 3180
Miami, FL 33131
(305) 721-1600
kmarquez@ij.org
Counsel for Amicus
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... ii
INTEREST OF AMICUS CURIAE ...........................1
SUMMARY OF ARGUMENT.....................................2
ARGUMENT ...............................................................6
I.
Congress Enacted Section 1983 to Ensure
Government Accountability, but the Judiciary’s Subsequent Imposition of Procedural
Barriers Makes Bringing Claims Within
One Year Much Harder. .............................6
A. Judicially imposed procedural barriers
contradict Section 1983’s broad original
purpose. ..................................................6
B. Overlapping procedural barriers make
bringing claims within a one-year limitations period extremely difficult..........9
II.
Clarifying that a One-Year Statute of Limitations is Too Short Won’t Create Additional Unmeritorious Litigation. ..............23
CONCLUSION .......................................................... 25
ii
TABLE OF AUTHORITIES
PAGE(S)
CASES
Anderson v. Creighton,
483 U.S. 635 (1987)............................................. 18
Baxter v. Bracey,
140 S. Ct. 1862 (2020)......................................... 15
Boyd v. McNamara,
74 F.4th 662 (5th Cir. 2023) ......................... 18–19
Burnett v. Grattan,
468 U.S. 42 (1984)........................................... 9, 10
Bustillos v. El Paso Cnty. Hosp. Dist.,
891 F.3d 214 (5th Cir. 2018)......................... 21–22
Connick v. Thompson,
563 U.S. 51 (2011)..................................... 4, 19, 20
District of Columbia v. Carter,
409 U.S. 418 (1973)............................................... 7
District of Columbia v. Wesby,
583 U.S. 48 (2018)........................................... 4, 18
Gonzalez v. City of Castle Hills,
2021 WL 4046758
(W.D. Tex. Mar. 12, 2021) ............................ 11–12
iii
Gonzalez v. Trevino,
602 U.S. 653 (2024)......................................... 3, 10
Hagans v. Franklin Cnty. Sheriff’s Off.,
695 F.3d 505 (6th Cir. 2012)........................... 5, 22
Harlow v. Fitzgerald,
457 U.S. 800 (1982)......................................... 4, 18
Johnson v. Moseley,
790 F.3d 649 (6th Cir. 2015)............................... 16
Joyce v. Town of Tewksbury,
112 F.3d 19 (1st Cir. 1997) ................................. 22
Kisela v. Hughes,
584 U.S. 100 (2018)............................................. 15
Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency,
440 U.S. 391 (1979)......................................... 7, 16
Little v. Barreme,
6 U.S. (2 Cranch) 170 (1804) .............................. 17
Mitchum v. Foster,
407 U.S. 225 (1972)............................................... 8
Mohamud v. Weyker,
144 F.4th 1099 (8th Cir. 2025) ........................... 12
Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978)............................................. 19
iv
Monroe v. Pape,
365 U.S. 167 (1961)............................................... 8
Mullenix v. Luna,
577 U.S. 7 (2015)................................................. 18
Nieves v. Bartlett,
587 U.S. 391 (2019)............................................. 11
Owen v. City of Independence,
445 U.S. 622 (1980)............................................. 21
Pierson v. Ray,
386 U.S. 547 (1967)............................................. 17
Plowright v. Miami-Dade County,
102 F.4th 1358 (11th Cir. 2024) ......................... 21
R.A. v. City of New York,
206 F. Supp. 3d 799 (E.D.N.Y. 2016) ............. 4, 21
Szabla v. City of Brooklyn Park,
486 F.3d 385 (8th Cir. 2017)............................... 22
Tanzin v. Tanvir,
592 U.S. 43 (2020)............................................... 17
The Apollon,
22 U.S. (9 Wheat.) 362 (1824) ............................ 17
Wilson v. Garcia,
471 U.S. 261 (1985)............................................... 9
v
Wilson v. Layne,
526 U.S. 603 (1999)............................................. 18
Wood v. Strickland,
420 U.S. 308 (1975)................................... 3, 17–18
Ziglar v. Abbasi,
582 U.S. 120 (2017)............................................. 15
CODES, RULES, AND STATUTES
42 U.S.C. § 1983 ..................................................... 7–8
Me. Stat. tit. 14, § 752 ........................................ 24–25
P.R. Laws Ann. tit. 31, § 5298(2) ............................. 22
Tenn. Code Ann. § 28-3-104 ..................................... 22
Tex. Civ. Prac. & Rem. Code § 16.003 ..................... 11
OTHER AUTHORITIES
Alexander A. Reinert, Does Qualified Immunity
Matter?,
8 U. St. Thomas L.J. 477 (2011) ......................... 24
Alexander A. Reinert, Qualified Immunity’s Flawed
Foundation,
111 Calif. L. Rev. 201 (2023) .............................. 15
Complaint,
Taylor v. Nocco, No. 8:21-cv-00555
(M.D. Fla. filed Mar. 10, 2021) ........................... 12
vi
Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871) .... 7
Eric Foner, Reconstruction: America’s Unfinished
Revolution, 1863–1877 (1988) .............................. 7
Jason Tiezzi et al., Unaccountable: How Qualified
Immunity Shields a Wide Range of Government
Abuses, Arbitrarily Thwarts Civil Rights, and
Fails to Fulfill Its Promises,
Inst. for Just. (Feb. 7, 2024) ................... 13, 14, 15
Jay Schweikert, Qualified Immunity: A Legal,
Practical, and Moral Failure,
Cato Inst. (Sept. 14, 2020) .................................. 15
Joanna C. Schwartz, Qualified Immunity’s Boldest
Lie,
88 U. Chi. L. Rev 605 (2021) .............................. 15
Joanna C. Schwartz, The Case Against Qualified
Immunity,
93 Notre Dame L. Rev. 1797 (2018) ................... 15
Joanna Schwartz, Shielded: How the Police Became
Untouchable (2023) ............................................. 21
Petition for a Writ of Certiorari,
Mohamud v. Weyker, No. 25-760
(U.S. Dec. 19, 2025) ...................................... 12–13
Robert J. Kaczorowski, Federal Enforcement of Civil
Rights During the First Reconstruction,
23 Fordham Urb. L.J. 155 (1995) ......................... 7
vii
Settlement Agreement and Release,
Taylor v. Nocco, No. 8:21-cv-00555
(signed Dec. 3, 2024) ........................................... 12
Theodore Eisenberg & Stewart Schwab, The Reality
of Constitutional Tort Litigation,
72 Cornell L. Rev. 641 (1987) ............................... 5
William Baude, Is Qualified Immunity Unlawful?,
106 Calif. L. Rev. 45 (2018) .................................15
1
INTEREST OF AMICUS CURIAE 1
The Institute for Justice (IJ) is a nonprofit public
interest law firm committed to defending the
essential foundations of a free society by securing
greater protection for individual liberty. 2 Central to
that mission is promoting government accountability
for constitutional violations by government actors.
The Institute for Justice pursues these goals in part
through its Project on Immunity and Accountability,
which seeks to decrease procedural barriers that
insulate government defendants that violate
individuals’ rights from lawsuit. IJ also pursues these
goals through affirmative litigation on behalf of
individuals whose constitutional rights have been
violated by government officials at all levels.
The Project on Immunity and Accountability is
founded on a simple idea: If we the people must follow
the law, our government must follow the
Constitution. But a tangled web of legal doctrines
effectively places government officials above the law
by making it nearly impossible for individuals to hold
them accountable for even bad faith violations of
constitutional rights. Too short statutes of limitations
often aggravate this problem. Since often the only
way to enforce the Constitution is through the courts,
these overlapping doctrines make the Constitution an
1 No party or its counsel authored any of this brief, and no person
other than the Institute for Justice (IJ), its members, or its counsel contributed monetarily to this brief. The undersigned contacted every parties’ counsel of record with timely notice that IJ
was filing this brief in support of Petitioners.
2 This brief is substantively the same as IJ’s prior briefs in Brown
v. Pouncy, No. 23-1332, and Monroe v. Conner, No. 24-16.
2
empty promise by firmly shutting the courthouse
doors. Accordingly, the Project seeks to challenge
judge-made
procedural
barriers
that
erode
individuals’ constitutional rights through litigation,
legislative advocacy, and public education.
As a civil rights organization that regularly sues
government officials for violating individuals’ federal
constitutional rights, IJ also has an unparalleled
depth of experience working up viable Section 1983
cases. Because our cases often bring cutting-edge
constitutional claims, they often require months-long
case development. And so, we have a practical
understanding of the challenges resulting from too
short limitations periods and overlapping procedural
barriers.
SUMMARY OF ARGUMENT
The Court should grant certiorari in this case. And
it should hold that a one-year statute of limitations is
too short to vindicate the federal interests expressed
in Section 1983.
Congress enacted Section 1983 as a bulwark
against government abuse. But over the intervening
decades, the Court has imposed increasingly
restrictive procedural barriers on civil rights
plaintiffs. Those barriers make bringing meritorious
claims a more difficult and time-consuming process.
Plaintiffs in jurisdictions with one-year statutes of
limitations for Section 1983 claims face an untenable
choice: invest the requisite time in developing their
claims and risk the limitations period expiring or file
their claims quickly and risk being dismissed for some
3
other deficiency. Given all the procedural barriers the
Court has imposed since Congress enacted Section
1983, one-year statutes of limitations are too short to
fulfill Section 1983’s original purpose. See Wood v.
Strickland, 420 U.S. 308, 322 (1975).
Section 1983 is the primary mechanism for civil
rights plaintiffs to vindicate their rights. But too short
statutes of limitations compound the difficulties
created by the proliferation of judicially imposed
procedural barriers. In our experience at the Institute
for Justice, perfecting Section 1983 claims requires
extensive pre-filing factual development and legal
research. IJ attorneys regularly spend months
preparing our cases to ensure that our clients’ claims
can survive procedural defenses. That work may
include things like fighting over public records
requests to support our allegations. One of our recent
wins before this Court illustrates this: To plausibly
allege that municipal officials retaliated against
Sylvia Gonzalez for her political speech, we spent
about six months negotiating with the county to
review arrest records and determine whether others
had been arrested for similar conduct. See generally
Gonzalez v. Trevino, 602 U.S. 653 (2024) (per curiam).
But such difficulties aren’t unique to Sylvia’s case.
Overlapping procedural barriers imposed by the
Court make bringing claims much harder by
heightening the burden on plaintiffs pre-filing.
Because of their prevalence in Section 1983 litigation,
here we focus on two such barriers: qualified
immunity and municipal liability.
4
First, qualified immunity. Modern qualified
immunity doctrine displaces the common-law liability
regime that existed when Section 1983 was enacted,
presenting significant difficulties for plaintiffs faced
with one-year limitations periods. Since the Court
created modern qualified immunity in 1982, see
Harlow v. Fitzgerald, 457 U.S. 800 (1982), it has
increasingly put the burden on civil rights plaintiffs
to show that their rights are clearly established. See
District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)
(“[E]xisting
law
must
have
placed
the
constitutionality of the officer’s conduct beyond
debate.” (quotation omitted)). This atextual and
ahistorical gloss on Section 1983 forces civil rights
plaintiffs to do extensive research before filing in
anticipation of a qualified immunity defense. As
qualified immunity is applied by some courts,
plaintiffs must be prepared to respond to a motion to
dismiss by having developed arguments that the
violation was clearly established in factual
circumstances nearly identical to their own case.
Second, municipal liability. To adequately plead
municipal liability, plaintiffs must often show a policy
or custom of unconstitutional behavior so pervasive as
to constitute deliberate indifference. Connick v.
Thompson, 563 U.S. 51, 61–62 (2011). This is a
daunting standard for a plaintiff to meet before
discovery. Essentially, a plaintiff must prove a policy
or custom just to proceed past a motion to dismiss.
See, e.g., R.A. v. City of New York, 206 F. Supp. 3d
799, 803–804 (E.D.N.Y. 2016) (dismissing municipal
liability claim because of insufficient evidence to
plead a policy or custom). On top of that, some circuits
5
have begun erroneously importing the clearlyestablished-law
requirement
from
qualified
immunity into municipal liability cases. E.g., Hagans
v. Franklin Cnty. Sheriff’s Off., 695 F.3d 505, 511 (6th
Cir. 2012). Because of these requirements, bringing a
municipal liability claim within a one-year
limitations period is nearly impossible. Plaintiffs
must spend months collecting evidence to support
their allegations long before the case has been filed or
any discovery has taken place.
A one-year statute of limitations does not account
for the practical difficulties created by procedural barriers for civil rights plaintiffs. The overlap of too short
statutes of limitations and such procedural barriers
threatens to defeat otherwise meritorious claims. And
it does so with little justification: The judiciary is often concerned that increasing access to courts will
cause a deluge of unmeritorious litigation, but that’s
not a realistic concern here. Cf. Theodore Eisenberg &
Stewart Schwab, The Reality of Constitutional Tort
Litigation, 72 Cornell L. Rev. 641, 693–695 (1987)
(noting that concerns over exploding civil rights litigation are refuted by national filing data). Clarifying
that a one-year statute of limitations is too short will
not increase unmeritorious litigation and may have
the opposite effect as diligent attorneys will have
more time to vet out groundless claims. And experience shows that federal courts in jurisdictions with
statutes of limitations longer than one year are able
to manage their dockets, suggesting concerns about
over-burdened courts are ill-founded.
6
ARGUMENT
I.
Congress Enacted Section 1983 to
Ensure Government Accountability,
but
the
Judiciary’s
Subsequent
Imposition of Procedural Barriers
Makes Bringing Claims Within One
Year Much Harder.
When a government official violates an
individual’s constitutional rights, the primary remedy
available is a lawsuit under 42 U.S.C. § 1983. Section
1983 was enacted to ensure that victims of rights
violations would have a federal forum available. But
in the intervening decades the Court has imposed
additional procedural barriers that make bringing
claims a more difficult and time-consuming process.
Too short limitations periods for Section 1983 claims
compound the problem: Plaintiffs must prepare
procedurally complicated cases very quickly.
A. Judicially imposed procedural barriers contradict Section 1983’s broad
original purpose.
Statutes of limitations applied to Section 1983
claims must account for its original purpose of
ensuring that victims of government abuse have a
federal forum available. To vindicate the federal
interests expressed in Section 1983, limitations
7
periods must provide sufficient time for plaintiffs to
prepare their claims.
Section 1983 created a mechanism for victims to
recover for federal rights violations. During
Reconstruction, the Ku Klux Klan overwhelmed legal
institutions in the South, terrorizing freedmen and
Republicans with impunity. See Robert J.
Kaczorowski, Federal Enforcement of Civil Rights
During the First Reconstruction, 23 Fordham Urb.
L.J. 155, 156–157 (1995). See also Eric Foner,
Reconstruction: America’s Unfinished Revolution,
1863–1877, at 425–444 (1988) (cataloguing Klan
violence). Because local and state law enforcement
officers were often the same Klansmen that carried
out these campaigns of terror, Congress sought to
enact
statutes
providing
federal
remedies.
Kaczorowski, supra, at 157–158 (also discussing the
statute creating the Department of Justice). Section
1983 “was designed primarily in response to the
unwillingness or inability of the state governments to
enforce their own laws against those violating the
civil rights of others.” District of Columbia v. Carter,
409 U.S. 418, 426 (1973). It was “remedial” and
intended to “aid [in] the preservation of human liberty
and human rights.” Lake Country Ests., Inc. v. Tahoe
Reg’l Plan. Agency, 440 U.S. 391, 400 n.17 (1979)
(quoting Cong. Globe, 42d Cong., 1st Sess., App. 68
(1871)).
Enacted as part of the Civil Rights Act of 1871
(also known as the Ku Klux Klan Act), Section 1983
created a private cause of action against any “person
who, under color of any [law] of any State * * *
subjects * * * any * * * person * * * to the deprivation
8
of any rights, privileges, or immunities secured by the
Constitution.” 42 U.S.C. § 1983. It fundamentally
altered the authority of the federal courts to address
civil rights abuses. Section 1983 “opened the federal
courts to private citizens, offering a unique federal
remedy against incursions under the claimed
authority of state law upon rights secured by the
Constitution and laws of the Nation.” Mitchum v.
Foster, 407 U.S. 225, 239 (1972). “The very purpose of
§ 1983 was to interpose the federal courts between the
States and the people, as guardians of the people’s
federal rights—to protect the people from
unconstitutional action under color of state law,
whether the action be executive, legislative, or
judicial.” Id. at 242 (quotation omitted). See also
Monroe v. Pape, 365 U.S. 167, 180 (1961) (“[O]ne
reason [Section 1983] was passed was to afford a
federal right in federal courts because * * * state laws
might not be enforced and claims of citizens to the
enjoyment of rights, privileges, and immunities
guaranteed by the Fourteenth Amendment might be
denied by the state agencies.”).
Section 1983 continues to be the primary
mechanism for victims of government abuse to
vindicate their rights in a federal forum. It’s the basis
of many of this Court’s landmark decisions
vindicating constitutional rights: equal protection in
Brown v. Board of Education and SFFA v. UNC, gun
rights in District of Columbia v. Heller and NYSRPA
v. Bruen, property rights in Fuentes v. Shevin and
Cedar Point Nursery v. Hassid, and free speech in
Tinker v. Des Moines Independent Community School
District and Citizens United v. FEC. Put simply, the
9
“high purposes of this unique remedy make it
appropriate to accord the statute a sweep as broad as
its language.” Wilson v. Garcia, 471 U.S. 261, 272
(1985) (quotation omitted). But despite this, the Court
has repeatedly imposed greater procedural barriers
on Section 1983 claims—atextually limiting the
statute’s reach.
Since Congress enacted Section 1983, the Court
has imposed additional procedural barriers on victims
of rights abuses. The proliferation of these added barriers makes bringing meritorious claims harder—requiring additional pre-filing case development as
plaintiffs are forced to preempt a myriad of potential
defenses that government defendants now have at
their disposal. Cf. Burnett v. Grattan, 468 U.S. 42, 51
(1984) (“[A civil rights plaintiff] must look ahead to
the responsibilities that immediately follow filing of a
complaint. He must be prepared to withstand various
responses, such as a motion to dismiss, as well as to
undertake additional discovery.”). Bringing a civil
rights lawsuit within a too short limitations period
was already difficult. But these procedural barriers
make it more so.
B. Overlapping procedural barriers make
bringing claims within a one-year limitations period extremely difficult.
Section 1983 is a bulwark against government
abuse. But over the last six decades the Court has
imposed procedural barriers—all untethered from the
text and history of the statute—that make it harder
for victims of abuse to bring their claims, despite their
10
merit. Today, these procedural barriers are among
the practicalities that “[a]n appropriate limitations
period must be responsive to.” Burnett, 468 U.S. at 50.
These doctrines overlap in ways that make it
extremely difficult for victims of government officials’
abuse to prepare their claims within one year.
The Court should grant cert in this case because a
one-year statute of limitations is too short to enforce
the federal interests expressed in Section 1983. A oneyear statute of limitations “fails to take into account
practicalities that are involved in litigating federal
civil rights claims.” Ibid. Our experience at the
Institute for Justice confirms this. We often spend
months preparing our Section 1983 cases to ensure
that the claims of our clients—all victims of egregious
government abuse—aren’t dismissed on procedural
grounds. Many of our cases, even ones that are
ultimately successful before this Court, could not be
brought within a one-year limitations period.
Recently, the Court heard a First Amendment case
that shows how untenable a one-year limitations
period is. In 2024, this Court ruled for Sylvia
Gonzalez, a grandmother who sought to give back to
her community by serving on the City Council.
Gonzalez v. Trevino, 602 U.S. 653 (2024) (per curiam).
But Sylvia’s opposition to the city manager put her in
the crosshairs of the mayor and others, who conspired
to have her arrested on trumped-up charges. With IJ’s
help, Sylvia sued for First Amendment retaliatory
11
arrest. The case would have been impossible to bring
within one year of Sylvia’s arrest.3
Claims for retaliatory arrest when there is
probable cause require plaintiffs to present objective
evidence that others similarly situated were not
arrested for engaging in similar behavior. Nieves v.
Bartlett, 587 U.S. 391, 407–408 (2019). Meeting this
threshold requirement necessitated months of work.
On top of the extensive case development and vetting
that IJ usually does, here we also needed to invest
time in making sure we could plausibly allege Sylvia
met Nieves’s standard. That required spending
months negotiating with Bexar County to collect data
about arrests. And because Bexar County only had
paper records, we had to physically go to the records
office to photocopy the relevant documents. This
process alone took around six months.
It would have been impossible to collect this
evidence and adequately prepare other aspects of the
case within a one-year limitations period. On top of
the objective evidence requirement, the complaint
also had to anticipate a myriad of other procedural
barriers that are common in Section 1983 litigation—
things like qualified immunity and municipal
liability. Unsurprisingly, when the defendants moved
to dismiss Sylvia’s claim, they not only argued that
Sylvia couldn’t meet the objective evidence
requirement. They also argued that her claims were
foreclosed by other procedural barriers. See Gonzalez
v. City of Castle Hills, 2021 WL 4046758, at *6–11
3 Texas has a two-year limitations period. Tex. Civ. Prac. & Rem.
Code § 16.003.
12
(W.D. Tex. Mar. 12, 2021) (addressing qualified
immunity and municipal liability defenses). Bringing
procedurally complicated cases like Sylvia’s requires
time to develop theories and facts, and to research
likely defenses. In this respect, Sylvia’s case is not
unique.
At IJ, we often spend months preparing to respond
to procedural defenses before filing the complaint.
Besides contending with procedural barriers like
plausibility pleading that affect all plaintiffs, diligent
attorneys bringing Section 1983 claims must also
anticipate responding to barriers specific to civil
rights litigation. We often have to do things like fight
over public information request productions to
support allegations of patterns of unconstitutional
behavior. See generally, e.g., Complaint, Taylor v.
Nocco, No. 8:21-cv-00555 (M.D. Fla. filed Mar. 10,
2021) (relying on public records request productions
to allege municipal policy of using flawed algorithm to
identify potential future violators and then harass
them out of the county through code enforcement and
other means). 4 Or we may have to establish that
challenged conduct falls within the color-of-law
requirement. See, e.g., Mohamud v. Weyker, 144 F.4th
1099, 1103–1105 (8th Cir. 2025) (holding that Section
1983 provides no cause of action against local police
officer because she was cross-deputized with narrow
federal authority), petition for cert. filed, No. 25-760
4 Notably, Taylor v. Nocco resulted in a settlement agreement
where the county admitted its predictive policing program violated the First, Fourth, and Fourteenth Amendments. See Settlement Agreement and Release, Taylor v. Nocco, No. 8:21-cv00555 (signed Dec. 3, 2024).
13
(U.S. Dec. 19, 2025). Like the Wrights, we sometimes
struggle to specifically identify defendants, requiring
extensive pre-filing records requests or post-filling
discovery. To overcome these types of barriers, we
often spend a lot of time before filing doing things like
legal research or fact development by reviewing
bodycam footage or interviewing witnesses. For
example, in one case that we expected would involve
Heck-bar issues, 5 we reviewed nearly 500 letters, over
200 pages of invoices, and over 230 pages of
timesheets to support our allegations that a county
prosecutor’s office allowed an assistant prosecutor to
moonlight as a law clerk to the same judges that
heard his cases for nearly two decades. When bringing
procedurally complicated civil rights cases, there is no
substitute for the time spent perfecting claims.
Our experience shows that difficulties imposed on
civil rights plaintiffs by the proliferation of procedural
barriers impact a wide variety of claims. Too short
statutes of limitations and other procedural barriers
impact a broad set of cases. Cf. Jason Tiezzi et al.,
Unaccountable: How Qualified Immunity Shields a
Wide Range of Government Abuses, Arbitrarily
Thwarts Civil Rights, and Fails to Fulfill Its
Promises, Inst. for Just. (Feb. 7, 2024), at 23 (“[O]nly
23% of the [federal qualified immunity appeals] we
studied fit the classic mold of police accused of
excessive force, showing that qualified immunity
5 We were right. Our petition for certiorari in Wilson v. Midland
County, No. 24-672, on the applicability of the Heck-bar is pending before the Court awaiting resolution of Olivier v. City of
Brandon, No. 24-993, which presents an identical issue as our
petition.
14
shields a far broader range of government defendants
and conduct than many people think.”). See also id. at
16 (non-law enforcement or prison official defendants
in federal qualified immunity appeals “tended to be
mayors or city managers; university or school
officials; prosecutors or judges; and child protective
services workers”).
In enacting Section 1983, Congress ensured that
victims of abuse could access a federal forum to
vindicate their rights. But the imposition of judicially
created procedural barriers makes it much harder for
plaintiffs to bring their claims within too short
limitations periods. Doctrines like the Nieves
objective evidence or Heck favorable termination
requirements,
or
plausibility
pleading
for
discrimination or failure-to claims, mean that civil
rights plaintiffs and their attorneys must do months
of work long before suing.
The judicially imposed procedural barriers that
Section 1983 plaintiffs face are many. But two
warrant special attention because of their prevalence
in Section 1983 litigation: qualified immunity and
municipal liability. Both doctrines force civil rights
plaintiffs and their attorneys to invest ever-greater
resources into pre-filing case development for fear
that their meritorious claims will be dismissed, all
while the limitations period ticks away.
Qualified
immunity.
Modern
qualified
immunity doctrine places civil rights plaintiffs at a
15
systematic disadvantage. 6 It protects government
officials—even those acting in bad faith with
premeditation—from liability unless a plaintiff can
show that at the time of the violation it was “clearly
established” that those precise actions were
unconstitutional. This forces plaintiffs to draft their
complaints with these concerns in mind. The
resulting difficulties are aggravated by very short
statutes of limitations as plaintiffs are forced to
conduct even more extensive factual and legal
research in anticipation of a qualified immunity
defense.
Under modern qualified immunity doctrine, it is
now not enough for a plaintiff to plead that a
government official violated their constitutional
6 Perhaps no doctrine has recently received more criticism than
qualified immunity. See William Baude, Is Qualified Immunity
Unlawful?, 106 Calif. L. Rev. 45, 48 (2018) (noting qualified immunity has “come under increasing outside criticism”). A comprehensive discussion of the issues with qualified immunity is
beyond the scope of this brief. But suffice it to say, there are
strong arguments that the doctrine cannot be justified in law,
history, or policy. See generally, e.g., Jason Tiezzi et al., Unaccountable: How Qualified Immunity Shields a Wide Range of
Government Abuses, Arbitrarily Thwarts Civil Rights, and Fails
to Fulfill Its Promises, Inst. for Just. (Feb. 7, 2024); Alexander
A. Reinert, Qualified Immunity’s Flawed Foundation, 111 Calif.
L. Rev. 201 (2023); Joanna C. Schwartz, Qualified Immunity’s
Boldest Lie, 88 U. Chi. L. Rev 605 (2021); Jay Schweikert, Qualified Immunity: A Legal, Practical, and Moral Failure, Cato Inst.
(Sept. 14, 2020); Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018); Baxter v.
Bracey, 140 S. Ct. 1862 (2020) (Thomas, J., dissenting from denial of certiorari); Kisela v. Hughes, 584 U.S. 100, 121 (2018) (Sotomayor, J., dissenting); Ziglar v. Abbasi, 582 U.S. 120, 156–160
(2017) (Thomas, J., concurring in part).
16
rights. From the outset of the case, the plaintiff must
also anticipate how to respond to a defense of
qualified immunity. Cf. Johnson v. Moseley, 790 F.3d
649, 653 (6th Cir. 2015) (“[P]laintiff bears the burden
of showing that defendants are not entitled to
qualified immunity.”). This requires extensive
preparation: Complaints must anticipate arguments
that there is no clearly established law in the
jurisdiction or that—even if there is clearly
established law—the facts in the case are not similar
enough to previous cases to put an official on notice
that their conduct was wrongful.
A properly pled complaint anticipating a qualified
immunity defense often requires months of pre-filing
case development and legal research. In jurisdictions
where the statute of limitations is very short, a
plaintiff may not have the luxury of investing that
much time before the limitations period expires—
putting them at risk that their meritorious claims
may be dismissed before any factual development.
Considering that just recognizing the viability of a
claim and developing a productive lawyer-client
relationship take time, also needing to be prepared to
respond to a qualified immunity defense makes
bringing a claim within a year extremely difficult. In
the context of modern qualified immunity doctrine, a
one-year statute of limitations does not reflect the
federal interests expressed in Section 1983. Cf. Lake
Country Ests., 440 U.S. at 399–400 (“[Section] 1983
must be given a liberal construction.”).
Statutes of limitations applied to Section 1983
claims should reflect its original purpose, but the
overlap of too short limitations periods and qualified
17
immunity prevents that by atextually and
ahistorically insulating government officials from
liability. Qualified immunity in no way resembles the
legal landscape when Congress enacted Section 1983.
Before the Court’s creation of qualified immunity in
1982, government workers were subject to strict
liability for their unconstitutional acts, even when
those acts were good-faith errors. See Little v.
Barreme, 6 U.S. (2 Cranch) 170 (1804). Historically,
the Court could “only look to the questions, whether
the laws had been violated; and if they were, justice
demand[ed], that the injured party should receive a
suitable redress.” The Apollon, 22 U.S. (9 Wheat.) 362,
367 (1824). As Justice Thomas has noted, “[i]n the
early Republic, an array of writs allowed individuals
to test the legality of government conduct by filing
suit against government officials for money damages
payable by the officer.” Tanzin v. Tanvir, 592 U.S. 43,
49 (2020) (cleaned up). It was against this backdrop
that Congress enacted Section 1983.
The Court’s subsequent creation of qualified
immunity has displaced this regime, making it
increasingly difficult to bring claims against
government officials quickly. Starting in 1967, the
Court began creating broad immunities to official
liability, including qualified immunity. At first, the
Court articulated a defense of “good faith and
probable cause.” Pierson v. Ray, 386 U.S. 547, 556
(1967). The defense required officers to show they
acted in good faith and reasonably because “[a]ny
lesser standard would deny much of the promise of §
1983,” especially considering its “categorical remedial
language.” Wood v. Strickland, 420 U.S. 308, 322
18
(1975). But this changed in 1982 when the Court
decided Harlow v. Fitzgerald, the genesis of modern
qualified immunity.
In Harlow v. Fitzgerald, the Court entitled all
government officials to qualified immunity by default.
Setting aside the clear text of Section 1983, the Court
relied on policy concerns—litigation costs—to hold
that “government officials * * * generally are shielded
from liability for civil damages insofar as their
conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have known.” Harlow, 457 U.S. at 818. There
“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). And this reformulation has continued as
the Court has repeatedly narrowed the contours of
“clearly established” law. Compare id. at 640 (“The
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is
doing violates that right.”), with Wilson v. Layne, 526
U.S. 603, 617 (1999) (requiring “controlling authority
in [the] jurisdiction at the time of the incident” or “a
consensus of cases of persuasive authority”), and
Mullenix v. Luna, 577 U.S. 7, 12 (2015) (“Th[e] inquiry
must be undertaken in light of the specific context of
the case, not as a broad general proposition.” (cleaned
up)). Today, for a plaintiff to prevail, he must show
that it’s “beyond debate” that the violation is clearly
established in the relevant circuit—and some even
question whether circuit precedent is enough. District
of Columbia v. Wesby, 583 U.S. 48, 63 (2018). See also
Boyd v. McNamara, 74 F.4th 662, 672 (5th Cir. 2023)
19
(Oldham, J., concurring in part and dissenting in
part) (“But the Supreme Court has never authorized
[relying on circuit precedent to clearly establish the
law].”). This means that plaintiffs must invest a lot of
time conducting legal research to ensure that they can
argue—from the earliest stages of litigation—that the
violation was clearly established.
For civil rights plaintiffs, the practical consequences of Harlow and its progeny are significant:
They must invest time preparing to respond to a qualified immunity defense—usually needing to identify
cases with nearly identical facts (even before there’s
been any factual development through discovery) to
meet the atextual and ahistorical “clearly established” standard. And when the applicable statute of
limitations is only one year, they must do so quickly
or lose their federal forum.
Municipal liability. Municipalities are proper
defendants under Section 1983 when the claims arise
from a “policy or custom” that caused the
constitutional violation, Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690, 694 (1978), but pleading municipal
liability is a difficult and time-consuming hurdle for
plaintiffs to overcome. Most municipal liability cases
involve claims of unconstitutional “practices so
persistent and widespread as to practically have the
force of law.” Connick, 563 U.S. at 61. That means
that plaintiffs must plausibly allege a persistent
pattern of unconstitutional action before discovery—
something that will usually take months of research
and is untenable within a one-year limitations period.
20
Municipal liability claims often include things like
negligent hiring or failure to train or supervise. But
because the Court sometimes views such claims as
“tenuous,” it has imposed the “stringent standard” of
“deliberate indifference.” Ibid. (discussing failure to
train). In such cases, the “city’s policy of inaction”
must be so extreme that it “is the functional
equivalent of the decision by the city itself to violate
the Constitution.” Id. at 61–62 (cleaned up). And so,
the Court generally requires a “pattern of similar
constitutional violations” because “[w]ithout notice” of
the constitutional deficiency, the “decisionmakers can
hardly be said to have deliberately chosen [the]
program that will cause violations of constitutional
rights.” Id. at 62.
For a plaintiff seeking to bring a Section 1983
claim against a municipality, the Court’s requirement
that a “policy or custom” caused the violation presents
an obvious difficulty:
Before getting to discovery—where a plaintiff
might be able to unearth evidence about prior
misconduct or hiring decisions—they must first
set out sufficient facts that state a ‘plausible’
entitlement to relief * * * . It is not enough to say
that there is an unconstitutional policy, practice,
or custom. The plaintiff also has to include
evidence of a policy on its face, or a decision to hire
someone whose past conduct made it highly likely
that they would violate the Constitution in the
manner that they did, or past incidents of
misconduct so similar that they made the need for
additional training or supervision obvious. But at
the complaint drafting stage, a person who claims
21
their rights have been violated does not have
access to evidence of internal policies, or hiring
decisions, or past allegations and investigations of
misconduct. That is precisely what discovery is for.
Joanna Schwartz, Shielded: How the Police Became
Untouchable 108 (2023). Plaintiffs often attempt to
plead a pattern of unconstitutional behavior by citing
other evidence, but that may not be enough. See, e.g.,
Plowright v. Miami-Dade County, 102 F.4th 1358,
1370–1371 (11th Cir. 2024) (affirming dismissal of
municipal liability claim because a newspaper article
detailing five incidents of shooting family pets and
quoting a senior department official on the need to
train on dealing with pets could not establish policy
or custom); R.A. v. City of New York, 206 F. Supp. 3d
799, 803–804 (E.D.N.Y. 2016) (dismissing municipal
liability claim because neither nine complaints in a
personnel file nor seven newspaper articles were
sufficient to establish a policy or custom of sexual
misconduct). It’s precisely because of these stringent
requirements that IJ attorneys often spend months
fighting over public records requests, traveling across
the country to interview witnesses or collect physical
documents, or even conducting empirical studies to
support our claims. But these aren’t the only
difficulties.
Relying on the text and history of Section 1983,
the Court has rejected the application of qualified
immunity to municipalities. Owen v. City of
Independence, 445 U.S. 622, 650 (1980). But some
circuits import qualified immunity principles into
municipal liability claims, applying a clearlyestablished-law inquiry. See Bustillos v. El Paso Cnty.
22
Hosp. Dist., 891 F.3d 214, 222 (5th Cir. 2018); Szabla
v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir.
2017) (en banc); Hagans, 695 F.3d at 511; Joyce v.
Town of Tewksbury, 112 F.3d 19, 23 (1st Cir. 1997)
(en banc). This means that plaintiffs in some parts of
the country—including in all jurisdictions with oneyear limitations periods for Section 1983 claims 7—
must not only contend with the inherent difficulties of
stating a claim for deliberate indifference without
having gone through discovery. They must also invest
time framing their claims to overcome a clearlyestablished-law defense.
Bringing claims of municipal liability within one
year is nearly impossible in some cases considering
these requirements. To state a claim that’s likely to
survive a motion to dismiss, the plaintiff needs to
conduct extensive factual and legal research—
essentially proving a pattern of unconstitutionality
before receiving any discovery. In our experience, that
often requires that plaintiffs and their attorneys
spend months collecting evidence through public
records requests, on-the-ground investigation, or
other means. And, like with qualified immunity, the
plaintiff may also need to contend with the clearlyestablished-law standard. For at least some plaintiffs,
one year will not be enough.
*
*
*
Qualified immunity and municipal liability exemplify how judicially imposed procedural barriers make
See Tenn. Code Ann. § 28-3-104; P.R. Laws Ann. tit. 31,
§ 5298(2).
7
23
bringing Section 1983 claims within one year nearly
impossible, but they are not the only barriers. Sometimes they overlap with more claim-specific concerns
like the Nieves standard or the Heck bar. Other times,
they aggravate more general litigation concerns by,
for example, effectively heightening the plausibility
pleading standard or aggravating fictitious party
pleading concerns. When a statute of limitations is
very short, these types of procedural barriers—none
of which reflect Section 1983’s textual command or
were envisioned when the statute was enacted—interact to foreclose plaintiffs’ meritorious claims as untimely.
II.
Clarifying that a One-Year Statute of
Limitations is Too Short Won’t Create
Additional Unmeritorious Litigation.
Too short statutes of limitations incentivize
attorneys to move fast, not smart. Very short statutes
of limitations force attorneys to file cases quickly for
fear that, if they do not, then their claims will be
foreclosed. Attorneys have an ethical obligation to
zealously represent their clients, and that includes
the obligation to bring claims before the limitations
period expires. The overlap of too short limitations
periods
and
other
procedural
barriers
disproportionately affects those lawyers most
adamant about satisfying their diligence obligations.
When a statute of limitations is very short, diligent
attorneys are forced to bring cases quickly—before
they’ve had a sufficient opportunity to vet them.
When attorneys have sufficient time to vet and
perfect their cases, everyone wins: Victims of
24
egregious government abuse have their day in court—
vindicating their constitutional rights and enforcing
the promise of Section 1983. And, at the same time,
weak claims are better vetted and kept out of court.
It makes sense that too short limitations periods
may lead to more unmeritorious litigation. Much of
litigators’ work takes place pre-filing, when they are
vetting cases, researching the issues, and drafting the
complaint. Attorneys representing civil rights
plaintiffs generally spend a lot of time vetting cases.
And, in fact, diligent civil rights attorneys account for
the many procedural hurdles that they’ll face when
bringing a claim. Cf. Alexander A. Reinert, Does
Qualified Immunity Matter?, 8 U. St. Thomas L.J.
477, 492 (2011) (“[Attorneys] confirmed that concerns
about the qualified immunity defense play a
substantial role at the screening stage.”). For more
careless attorneys, a short statute of limitations isn’t
a deterrent to filing an unmeritorious claim because
they’d have little reason to vet the case anyway. Too
short limitations periods create more unmeritorious
litigation because diligent attorneys have insufficient
time to screen out unsubstantiated claims or to
resolve claims through alternative means.
Holding a one-year limitations period is too short
for Section 1983 claims will not cause a deluge of
unmeritorious litigation. Based on our experience, it
seems likely that the opposite will be true: Attorneys
will be better able to screen out unmeritorious cases.
While there may be more meritorious cases, there’s no
reason to think that will overwhelm the courts. Most
jurisdictions’ residual personal injury limitations
periods exceed one year, sometimes by a lot. See, e.g.,
25
Me. Stat. tit. 14, § 752 (six years). But federal courts
in those jurisdictions are just as capable of managing
their dockets as the small minority with one-year
limitations periods.
CONCLUSION
Too short statutes of limitations erode the federal
interests expressed in the text of Section 1983. Worse
still, the proliferation of overlapping judicially
created procedural barriers since Section 1983 was
enacted makes it even harder for plaintiffs to bring
their claims within tight limitations periods. These
difficulties compound, depriving individuals with
meritorious claims—of many kinds—of a federal
forum.
This Court should grant the petition for certiorari.
Respectfully submitted,
PATRICK JAICOMO
ANYA BIDWELL
INSTITUTE FOR JUSTICE
901 N. Glebe Rd., Ste. 900
Arlington, VA 22203
(703) 682-9320
KATRIN MARQUEZ
Counsel of Record
INSTITUTE FOR JUSTICE
2 S. Biscayne Blvd., Ste. 3180
Miami, FL 33131
(305) 721-1600
kmarquez@ij.org
Counsel for Amicus
January 6, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.