Qualified immunity is a judicially created doctrine shielding public officials who are performing discretionary functions from civil liability. The doctrine plays a particularly prominent role in defense of civil rights lawsuits against federal law enforcement officials and against state and local police. With regard to its role in civil lawsuits concerning violations of constitutional norms regulating the police, defenders of the doctrine have suggested that qualified immunity plays an important role in affording police officers some level of deference when making split-second decisions about whether to, for example, use force to subdue a fleeing or resisting suspect. Critics of the doctrine have questioned its legal origins and have argued that its practice has provided too much deference to the police at the expense of accountability and the erosion of criminal suspects’ constitutional rights. Activists believe reforming the doctrine could increase the accountability of law enforcement. On Capitol Hill, House Democrats recently passed a bill that calls for eliminating the doctrine. Senator Mike Braun, a Republican from Indiana, introduced legislation that would scale back qualified immunity and that says government officials can only claim the protection when they prove their conduct had previously been authorized by federal or state law. With increasing focus on whether Congress should legislate to abrogate or otherwise modify the doctrine, this article explores the legal basis for qualified immunity, how it has operated in practice, and current debate over the efficacy of the doctrine.
Qualified immunity, which the Supreme Court created decades ago, has become a focal point of the debate on policing following the death of George Floyd. This case is only the last of a series of police brutality. Outside of Dallas, Texas, five officers fired 17 shots at a bicyclist who was 100 yards away, killing him, in a case of mistaken identity. In Heber City, Utah, an officer threw to the ground an unarmed man he had pulled over for a cracked windshield, leaving the man with brain damage. In Prince George’s County, Maryland, an officer shot a man in a mental health crisis who was stabbing himself and trying to slit his own throat.
The U.S. government does not maintain comprehensive data on civilians killed or seriously injured by police. According to media organizations and police-accountability groups that compile numbers from police reports, news accounts and other sources, the number of deaths alone is about 1,000 a year.
In cases receiving intense media scrutiny, qualified immunity rarely comes into play. Instead, police departments, often under heavy political pressure and facing public protests, typically offer big dollar settlements to victims or their survivors. The cops may also face disciplinary action or criminal charges.
In the far more numerous incidents of alleged excessive force that don’t make national headlines, police departments are under less pressure to settle, and officers are even less likely to be prosecuted or otherwise disciplined. In those cases, federal civil rights lawsuits provide the obvious avenue for holding cops accountable.
The issue:
Following an alleged case of police brutality, the victims (or their families) have two options to bring legal actions against law enforcement: criminal and civil.
A criminal case against a police officer in active duty is very difficult to be successful for the appellant since juries tend to sympathise with respondent and rule in their favour. Convicting officers on criminal charges, such as those Derek Chauvin now faces in the killing of George Floyd, is exceedingly rare: Between 2005 and 2019, only three officers were found guilty of murder and saw their convictions stand.
The alternative route is to pursue a civil action. However, the police can be protected by the doctrine of qualified immunity. Qualified immunity is a judicially created doctrine shielding public officials who are performing discretionary functions from civil liability. The doctrine plays a particularly prominent role in defense of civil rights lawsuits against federal law enforcement officials under the Bivens doctrine and against state and local police under 42 U.S.C. § 1983 (Section 1983). In practice, qualified immunity makes it difficult for people to bring suits against police officers, to say nothing of winning them. Not only police are allowed to request immunity before all evidence has been presented, but in the instance immunity is denied, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal. In other words, the doctrine is designed to take away the other avenue that victims of police violence should have available to hold police accountable.
The doctrine has become one of the chief ways in which law enforcement avoids accountability for misconduct and, even proven constitutional violations. Ordinary people are expected to follow the law. If they violate someone else’s legal rights, they can be sued and required to pay for the injuries they’ve caused. Under the doctrine of qualified immunity, public officials are held to a much lower standard. They can be held accountable only insofar as they violate rights that are “clearly established” in light of existing case law. This standard shields law enforcement, in particular, from innumerable constitutional violations each year. In the Supreme Court’s own words, it protects “all but the plainly incompetent or those who knowingly violate the law.” It is under this rule that officers can, without worry, drag a nonthreatening, seven months pregnant woman into the street and tase her three times for refusing to sign a piece of paper.
Test:
In civil actions, the burden to demonstrate police misconduct lies on the claimant. Only in the event that he is able to successfully pass a two-limb test, qualified immunity cannot be applied and the police officer would be held accountable.
The first part of test consists in bringing evidence to show that the officers used excessive force in violation of the Fourth Amendment. Given its relatively simple nature, the Supreme Court in 2009 in Pearson v. Callahan, gave judges the option to simply ignore the question of whether a cop used excessive force and instead focus solely on the second limb of the test.
The second question is whether the officers should have known they were breaking “clearly established” law – a Supreme Court coinage for a court precedent that had already found similar police actions to have been illegal. The main challenge for plaintiffs in excessive force cases is to show that police behavior violated a “clearly established” precedent. The Supreme Court has continually reinforced a narrow definition of “clearly established,” requiring lower courts to accept as precedent only cases that have detailed circumstances very similar to the case they are weighing. Many critics of the doctrine have objected that the high court’s guidance has created a ludicrously narrow standard with virtually identical cases not deemed as clearly established precedents due to subtle differences such as the distance between the men and the officers, the words spoken by the parties or the location in which the incident occurred.
History:
In the Civil Rights Act of 1871 (also known as the Ku Klux Klan Act), Congress gave Americans the right to sue public officials who violate their legal rights. In Section 1983 of the U.S. Code (the modern analogue of the 1871 Civil Rights Act), Congress said that if a public official violates citizens’ rights—whether via police brutality, an illegal search, or an unlawful arrest—it is possible to file a lawsuit to hold that public official financially accountable for his conduct. The language Congress used was unequivocal: “Every” state official who causes a “deprivation of any rights” guaranteed by the Constitution and laws “shall be liable to the party injured.”
Initially, the U.S. Supreme Court recognized the straightforward application of this law. In the case Monroe v. Pape, for instance, a Black family, the Monroes, sued Chicago police officers who, in the early morning, broke into their home without a warrant, rounded them up, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers. The officers then arrested James Monroe, the father, and detained and interrogated him for hours. In an opinion written by Justice William Douglas, the Supreme Court recognized that the Civil Rights Act allowed the Monroes to sue the officers for violating their constitutional rights. The very purpose of the Civil Rights Act, the Court explained, was “to give a remedy to parties deprived of constitutional rights, privileges, and immunities by an official’s abuse of his position.”
Over recent years, however, the Supreme Court has largely gutted this promise. It has done this by creating out of whole cloth the legal defense of qualified immunity, and then vastly expanding it.
The Supreme Court invented qualified immunity in 1967, describing it as a modest exception for public officials who had acted in “good faith” and believed that their conduct was authorized by law. It was the same year a Miami police chief coined the phrase “when the looting starts, the shooting starts” while cracking down on black neighborhoods. The first application of the doctrine occurred in Mississippi where the police had arrested a group of black clergymen for peacefully using a whites-only waiting room in a bus terminal. When the clergymen tried to sue the police for violating their civil rights, a court ruled that officers shouldn’t face legal liability for enforcing the law “in good faith and with probable cause.”
Fifteen years later, in Harlow v. Fitzgerald, the Court drastically expanded the defense. The protection afforded to public officials would no longer turn on whether the official acted in “good faith.” Instead, even officials who violate peoples’ rights maliciously will be immune unless the victim can show that his or her right was “clearly established.” Since the Harlow decision, the Court has made it exceedingly difficult for victims to satisfy this standard. To show that the law is “clearly established,” the Court has said, a victim must point to a previously decided case that involves the same “specific context” and “particular conduct.” Unless the victim can point to a judicial decision that happened to involve the same context and conduct, the officer will be shielded from liability.
The Supreme Court has recognized one exception to this rule, in Hope v. Pelzer. There, corrections officers disciplined a prisoner by handcuffing him to a hitching post for seven hours, with his hands above his shoulders, shirtless in the summer sun. At one point a guard taunted the prisoner by giving water to a guard dog in plain sight. Faced with these circumstances, and no prior case that had confronted similar facts, the Supreme Court ruled that the officers’ cruelty was “so obvious” that they should have had “fair warning” that their conduct violated the constitutional protection against cruel and unusual punishment. Far from creating a meaningful exception, however, courts frequently consider the circumstances in Hope to set the threshold for how egregious an officer’s behavior must be before he is considered to have “fair warning.”
And that is the law today: An officer who knowingly violates someone’s constitutional rights will generally be protected from suit unless the victim can identify previous judicial opinions that addressed the specific context and conduct. This is very far afield from what Congress sought to achieve in the Civil Rights Act. Instead of considering whether a person’s civil rights have been violated and, if so, providing that victim with a remedy, courts shut their doors to victims simply because no prior judicial opinion happened to involve the same facts.
Why qualified immunity is a problem
Qualified immunity hinders the protection of civil rights in a number of ways:
1. First and foremost, qualified immunity means that victims of brutality or harassment by law enforcement generally get no relief in court and have no ability to hold offending officers accountable for their actions. That means the officers who commit the brutality and harassment—and the governments that employ them—have little incentive to improve their practices and follow the law. This undermines safety and justice for everyone, and particularly for people of color or vulnerable people who are most likely to be the target of police misconduct.
2. Qualified immunity doesn’t just reduce a person’s chance for victory in a civil rights lawsuit; it means many claims will never be brought to court in the first place. As part of a civil rights law passed in 1976, Congress tried to create an incentive for lawyers to represent victims in civil rights actions and ensure that constitutional rights are safeguarded. To do so, Congress guaranteed that lawyers who represent victims in successful civil rights actions would be able to recover the cost of their time. A huge number of lawyers who bring civil rights actions rely on this law or on the possibility of contingency fees in the event they succeed.
But when a case is dismissed based on qualified immunity, the victim loses and attorneys are not able to recover the fees for their work. Thus, as a result of the Supreme Court’s aggressive defense of qualified immunity, victims of civil rights violations may be less likely to find a lawyer who is willing to represent them and suits will not be brought in the first place.
3. Qualified immunity freezes constitutional law. As mentioned previously, in order to overcome the defense of qualified immunity, a victim must show that law enforcement violated “clearly established” law by pointing to a case arising in the same context and involving the same conduct. This has given courts a shortcut to resolving cases: Instead of reviewing, analyzing, and applying constitutional doctrine to determine whether a person’s rights were violated, a court can instead simply say that there has been no sufficiently similar case in the past. The result is that fewer courts ever resolve constitutional issues, and constitutional rights are hardly ever “clearly established.”
What reforming qualified immunity would — and wouldn’t — do
One of the few arguments against reforming qualified immunity is that it would open the door to a deluge of frivolous suits, which would chill officer behavior on the street and discourage people from becoming cops.
But these concerns are almost certainly unfounded, argues Joanna C. Schwartz, a professor at the University of California, Los Angeles, School of Law and an expert in police accountability. Why? For one thing, qualified immunity is only one of many barriers to success in civil rights suits. What’s more, police officers are virtually always indemnified, meaning that even when they are found liable for damages, taxpayers cover 99.98 percent of the bill.
But for these same reasons, eliminating qualified immunity will never be a silver bullet for police brutality. “Although eliminating qualified immunity would increase access to the courts, clarity about the law, and transparency about the conduct of government officials,” Dr. Schwartz says, “it would not fundamentally shift dynamics that make it difficult for plaintiffs to redress constitutional violations and deter official misconduct.”
The dubious justifications for qualified immunity
The Supreme Court has offered several justifications for the need for qualified immunity, but each has been debunked:
#1: Qualified immunity protects law enforcement officers from being bankrupted by civil lawsuits.
One of the Supreme Court’s principal justifications for qualified immunity has been that it protects individual officers from the financial burdens of paying for lawyers and damage awards. However, that justification ignores the reality that such costs are virtually always paid by the officer’s municipality, insurance, or unions. A study of more than 80 state and local law enforcement agencies across the country found that in instances of misconduct—including those involving truly egregious, clear-cut abuses of authority—individual officers almost never paid such costs.
#2: Qualified immunity protects law enforcement officers from the burden of litigation.
Another one of the Supreme Court’s arguments for qualified immunity has been that public officials should be protected from the distractions that go along with lawsuits, including having to turn over reams of documents and attend lengthy trials. But in that respect, too, qualified immunity fails horribly. A study in the Yale Law Journal of over 1,000 lawsuits against law enforcement officers found that qualified immunity is rarely applied early enough in proceedings to protect officers from civil discovery, such as responding to document requests and depositions. That happened in just 0.6 percent of the cases studied.
#3: Without qualified immunity, law enforcement would be deterred from doing their jobs effectively.
The Supreme Court’s final justification has been that, absent qualified immunity, the threat of being sued would deter people from accepting high-risk jobs such as law enforcement and “dampen the ardor” of people in law enforcement in carrying out their duties. Here, too, studies have shown this concern is invalid.
thecriminologist.law.blog 