Petitioners Sarah Molina and Christina Vogel, members of a lawyer advocacy group, went to a protest in St. Louis in 2015. They wanted to make sure that protesters’ rights were protected by police. They were hats identifying themselves as legal observers. After a clash between protesters and police, the Petitioners went to Ms. Molina’s property, 550 feet away. Several minutes later, a police armored vehicle “barreled down the street toward them.” Someone in the vehicle fired tear-gas canisters near Ms. Molina and Ms. Vogel. Police later lied that they had not fired tear gas from their vehicle.

The Petitioners sued under Section 1983, claiming that the police retaliated against them for exercising their First Amendment rights. The Eighth Circuit granted the defendants qualified immunity for their actions against Ms. Molina and Ms. Vogel.

Cato filed an amicus brief asking the Supreme Court to reverse that decision and abolish qualified immunity. Neither Section 1983’s text nor the early history of constitutional torts justifies qualified immunity. In fact, courts have wrongly overlooked the fact that Section 1983—as originally enacted by Congress—forecloses qualified immunity. What is more, qualified immunity undermines public confidence in officials, including law enforcement and the courts, and is based on faulty assumptions about how official liability actually works. The mere fact that Congress has not done away with qualified immunity is no reason for the Court to maintain it as a bar to relief for Americans whose rights are violated. The Supreme Court should do away it.