Utah State Senator Wayne Harper introduced a resolution earlier this year supporting qualified immunity. While the resolution ultimately failed to pass, it made several misleading arguments that are commonly used to support the doctrine. These arguments mirror those made across the country by qualified immunity proponents, but are they accurate? The facts say otherwise.
Among the resolution’s most questionable statements was the assertion that “qualified immunity applies to public safety workers in narrow and well-defined circumstances.” Calling the circumstances in which qualified immunity applies narrow and well-defined is like calling Mount Everest a small hill. Qualified immunity prevents victims from holding officers accountable unless the officer’s action was unreasonable under “clearly established law.” This standard means that the circumstances in which qualified immunity applies include any behavior not previously identified by a court as a violation of civilians’ rights, such as in the case of Thomas Irwin, a suspect who fled police and was shot twice but cannot sue the officers involved because their violation of his rights was not “clearly established.”
The resolution further argues that “the clearly established right standard is appropriate as public safety workers should not be forced to imagine abstract rights,” stating this is because “public safety workers cannot be expected to be legal scholars or think through legal arguments when attempting to protect the public during high-stakes situations.” While it would be ludicrous to expect public safety workers to be “legal scholars,” it is entirely reasonable to expect armed individuals tasked with enforcing the law to have at least a passing familiarity with the law and the rights guaranteed to the citizens they serve. Returning to the example of Thomas Irwin, is it reasonable to shoot a suspect moving away from officers?
Many defenses of qualified immunity, including this Utah resolution, warn of an unending wave of frivolous lawsuits against law enforcement officers if the doctrine were struck down. The resolution refers to “unwarranted lawsuits against public safety workers and political bodies, in which judges and juries are allowed to second-guess split-second decisions with the luxury of hindsight and under vastly different circumstances, such as the quiet of a courtroom.”
However, these proponents fail to recognize an alternative that would protect law enforcement from frivolous lawsuits while actually being narrow and well-defined: the common-law standard of reasonableness. The reasonableness standard was applied in the 1989 case Graham v. Connor, in which the Supreme Court held that an officer could not be held liable for depriving rights if doing so was reasonable at the time. This case also explicitly prohibited courts from judging officers’ actions “with the 20/20 vision of hindsight.”
Fear of frivolous lawsuits does not vindicate qualified immunity. Instead, it vindicates the standard with which reform advocates often hope to replace qualified immunity.
Utah’s failed resolution did get one thing right when noting that qualified immunity does not just apply to law enforcement. The doctrine has also been applied to other public employees including public school teachers and firefighters. Unsurprisingly, the same protection can lead to the same abuse, as in the case of a first-grader who was allegedly held in a chokehold by their teacher. Eliminating qualified immunity in favor of the reasonableness standard is therefore not anti-law-enforcement. Rather, proponents of reform are advocating for greater accountability for government actors when they violate the rights of other citizens.
On March 4th, 2022, the Utah State Senate filed this resolution in its “file for bills not passed.” But Utah state legislators should do more than merely refuse to pass this resolution. They should engage in efforts such as those being executed in New Mexico and Colorado. These states have abolished qualified immunity and replaced it with the common law standard that strikes a far better balance between the difficulty of making split-second public safety decisions and the need to give victims of abuse a chance to recover damages. When government employees violate civilians’ rights, they should be held accountable. With the power of public trust comes the responsibility of respecting the rights of the people.