Cunningham v. Baltimore County — Cato Institute brief

On December 18th, the Cato Institute filed an amicus brief to the Supreme Court in Cunningham v. Baltimore County.

In this case, a Baltimore County police officer fired his rifle through the wall of a kitchen where he knew a five-year-old child was present but not visible, striking the child twice, because—in the officer’s own words—he was “hot and frustrated.”

The Cato Institute argued that the Maryland Supreme Court was wrong to apply qualified immunity protection to a police officer because it could find no prior decision involving nearly identical facts.

In cases of obvious rights violations – like the unjustified shooting of a child due to an officer’s personal frustration – no caselaw is necessary to “clearly establish the law.” This “obviousness” principle ensures that officers do not escape accountability simply because their conduct—in the words of then-Judge Gorsuch—“is so flagrantly unlawful that few dare its attempt.”

The Supreme Court should not tolerate the continued over-application of qualified immunity but should instead vindicate the rights of Americans harmed by flagrant governmental misconduct.

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