Qualified immunity is the legal doctrine by which police officers accused of misconduct can escape responsibility. The doctrine allows lawsuits against police officers to be dismissed simply because of their status as law enforcement. Qualified immunity is in profound disharmony with the core American value that no one is above the law. It often shields law enforcement officers from accountability, allowing their misdeeds to continue and denying victims an avenue for restitution. Qualified immunity stands in the way of victims receiving justice and contributes to the abuse of police power across the country.
Before considering alternatives to qualified immunity, it is important to understand the history and justification for its use. Although it is now a key component of American law, qualified immunity is a comparatively recent invention.
The codified right to sue law enforcement officers has existed since 1871 when Congress included in that year’s Civil Rights Act United States Code, Title 42, Section 1983, which states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…
But nearly a century later in 1967, the Supreme Court deprived this statute of much of its force by ruling in Pierson v. Ray (386 U.S. 547) that:
A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional on its face or as applied.
With these words, the doctrine of qualified immunity was born.
The careful reader may notice that the Civil Rights Act of 1871 provides only for remedies at the level of a state, territory, or District of Columbia. At the federal level, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), has served a very similar purpose.
Individuals whose Fourth Amendment right to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” is violated by federal agents can sue them in federal court for such a violation, but qualified immunity once again limits this remedy. As Will Baude, a professor of law at the University of Chicago Law School, noted, Bivens remedies are difficult to come by and the Supreme Court has consistently narrowed their application without returning to the 19th century standard of using state courts to adjudicate such claims.
In 1982, the Supreme Court established the modern test for qualified immunity in Harlow v. Fitzgerald (457 U.S. 800). The modern test holds officers liable for only those violations of “clearly established” law of which a reasonable person would have known.
As a result, the first officer to commit a particular type of malfeasance earns the protection of qualified immunity because they set the rule rather than breaking a previously established one. Recent cases illustrating this point include a case in which prison officials denied an inmate the right to receive visits from his children and a case in which officers shot and wounded a man fleeing the scene of a traffic incident. The latter is an unpublished opinion and therefore does not set precedent, while the former specifies that enforcing such blanket prohibitions on visitation is a “clearly established” violation of the law in all future cases arising in the Eighth Circuit. Both decisions rest primarily on the lack of “clearly established” law prohibiting the officer’s conduct before it occurred.
Because of qualified immunity, victims of police brutality are often prevented from receiving any kind of justice. Criminal charges against police officers are rare. Without qualified immunity, victims would have the option of showing in civil court that they are more likely than not to be entitled to damages under the law, a standard known as “preponderance of the evidence.” Instead, in the absence of liability in civil court, officers often avoid not only the feared flood of lawsuits but also any kind of accountability for their actions except for internal punishments set by the police department for policy violations.
This mentality of impunity may contribute to police violence and malfeasance. As Reason magazine’s Billy Binion has said, qualified immunity is “a doctrine that sends a message to government agents that they are above the laws they enforce.”
But qualified immunity has its staunch supporters. Foremost among these supporters’ arguments is the idea that without qualified immunity, officers could be held liable for things that “look bad on paper” but are essential elements of modern policing. They claim this problem is particularly relevant when police officers respond to situations involving serious mental health or substance use problems, where police may be required to use physical force against a person experiencing a loss of rational thought. A significant challenge of being a police officer is finding the balance between ensuring public safety and preventing officer-involved harm to civilians, and supporters of qualified immunity contend that eliminating it would expose officers to liability for simply doing their jobs.
Moreover, some supporters contend that with the current public distaste for law enforcement and “defund the police” movements, the elimination of qualified immunity could lead to a shortage of police officers. Others argue that by overcorrecting to avoid liability, police might let more crime slip by, possibly with violent consequences.
But even some working in law enforcement acknowledge the unnecessary protection afforded by the “clearly established law” standard. It makes hardly more sense that an officer could engage in obviously unconstitutional but previously unlitigated behavior with impunity. Clark Neily at the Cato Institute notes that many law enforcement groups support qualified immunity reforms, including the Major Cities Chiefs Association—a group of police executives, the Law Enforcement Action Partnership—a nonprofit group of current and former police officers, judges, prosecutors, and others, and the National Organization of Black Law Enforcement Executives.
Police Officers acting in good faith need not worry that qualified immunity reform would expose them to endless lawsuits. Civil suits still require plaintiffs to muster evidence to prove their allegations, and law enforcement officers behaving reasonably can expect that plaintiffs will be unable to win frivolous cases against them. However, those officers behaving as if they are above the law would need to worry that their creativity in finding new ways to violate civilians’ rights could no longer shield them from liability.
Ultimately, it is more important that victims of police brutality be able to receive justice and for offending officers to be held accountable than it is for police to have immunity for the actions they take on the job. The assertion that there will be a sudden influx of lawsuits against police officers rests on the premise that officers routinely violate civilians’ rights. Moreover, it is generally not police officers but rather city governments that pay for the costs of civil liability. The deterrence effect on police behavior has much less to do with personal financial liability than it does with holding officers accountable for their actions in open court.
There are also some precedents for eliminating qualified immunity, none of which have had conclusively negative consequences. In New York City, the city council voted to end qualified immunity. In Colorado, a new statute eliminated qualified immunity under state law. New Mexico also adopted a law that, like Colorado’s, prevents all of its state government employees, including police officers, from using qualified immunity as a defense in court. None of these reforms have been associated with any catastrophic failure in the criminal justice system or an inability to recruit new police officers in these jurisdictions.
As part of making the necessary reforms, we may be able to replace qualified immunity with systems such as insurance plans to continue having sufficient police presence while still compensating victims of brutality. This system would introduce a limited but important financial stake for officers in their actions. If a law enforcement officer’s actions were found to be in policy but subject to damages in court, the department would cover their increased insurance premium. But if an officer’s actions were out of step with the department’s policy, the premium would come out of the officer’s pay. This model is far from perfect and would be only one part of the broader reforms needed, but would help hold police officers more accountable for violating civilians’ rights without preventing law enforcement from doing its job.
It is time for qualified immunity to give way to a system that allows citizens to hold law enforcement officers accountable for their actions.