Qualified Immunity: Both Sides of the Debate

Qualified immunity provides protection from civil lawsuits for law enforcement officers and other public officials. It attempts to balance the need to allow public officials to do their jobs with the need to hold bad actors accountable.

Proponents of qualified immunity argue that without a liability shield, public officials and law enforcement officers would be constantly sued and second-guessed in courts. Critics say the doctrine has led to law enforcement officers being able to violate the rights of citizens, particularly disenfranchised citizens, without repercussion.

Qualified immunity is not the result of a law passed by Congress, nor is it written in the Constitution. It is instead a legal doctrine refined by the U.S. Supreme Court. First outlined in 1967, it has since been greatly expanded. Qualified immunity is largely a creation of the courts, one that is not based on the U.S. Constitution. As such, Congress could pass a law amending, affirming, or revoking qualified immunity at any time. It has so far declined to do so. However, both lawmakers and current Supreme Court justices have considered amending or revoking qualified immunity as it currently stands.

Understanding the pros and cons of this once obscure legal doctrine requires some knowledge of the surrounding legal issues and why qualified immunity was created in the first place. This article will briefly recount the history of qualified immunity, how it is applied in courts today, and the pros and cons it affords society.

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Section 1983 and Fourth Amendment Claims

In the Enforcement Acts of 1871, also known as the “Ku Klux Klan Acts," Congress specifically held that groups of people could be liable in court for violating the constitutional rights of other Americans, including public officials. This was an effort to help protect Black Americans, who were the frequent targets of horrific violence (including lynching) that, in some cases, public officials condoned. However, the end of Reconstruction came about shortly after these laws were passed, and the legal system ended up offering little protection for Black citizens until the 1960s.

People refer to lawsuits against the police alleging civil rights violations as §1983 claims. This is because the civil rights movement of the 1960s reinvigorated 42 U.S.C. §1983 of the Ku Klux Klan Acts. Section 1983 provides that “every person who . . . subject[s], or causes to be subjected, any citizen of the United States . . . 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." Put simply, victims of constitutional rights violations can sue whoever was responsible. It was during the civil rights movement that black Americans first began alleging police use of excessive force in violation of §1983.

The Supreme Court has held that the Fourth Amendment prohibits police from using excessive force when apprehending a suspect or making an arrest. Under §1983, such a violation means that officers who use excessive force are subject to civil liability. This exact reasoning occurred in the 1961 case Monroe v. Pape. There, the U.S. Supreme Court held that a police officer acted “under the color of law" in using unreasonable force and, as such, could be liable for violating the suspect's Fourth Amendment rights.

The Supreme Court has also held that a Fourth Amendment violation on its own – regardless of §1983 – can lead to civil liability in the 1971 case Bivens v. Six Unkown Fed. Narcotics Agents. You can read more about Bivens claims elsewhere on FindLaw. 

Creating Qualified Immunity

It was in 1967 that the U.S. Supreme Court first gave a police officer qualified immunity. In Pierson v. Ray, the U.S. Supreme Court held that a police officer acting in good faith was not liable for a false arrest. The Court had two reasons for giving qualified immunity in the case. First, it wrote that courts had been granting qualified immunity for many years prior to §1983 and that Congress did not specifically ban qualified immunity in that section. They then expanded that qualified immunity to acts undertaken by public officials in “good faith." Legal scholars have since questioned this reading of the law. Secondly, and perhaps more important to the Warren Court, the Supreme Court feared that police would not seek to arrest suspects or do their jobs as diligently if they feared being held liable. “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," Chief Justice Earl Warren wrote.

Fifteen years later, in Harlow v. Fitzgerald, the Supreme Court greatly expanded the doctrine to become closer to what it is today. In an 8-1 decision, the Supreme Court said that public officials have immunity unless the official knew or should have known that their actions violated the plaintiff's constitutional rights. It replaced the previous “good faith" test with something more “objective." This test is now the analysis courts use when determining if qualified immunity protects an officer from a lawsuit.

How Qualified Immunity Works

Qualified immunity is not the same as absolute immunity. There are circumstances in which a public official can be held accountable for constitutional violations in civil court. However, in the Supreme Court's own words, qualified immunity is an officer-friendly doctrine that protects “all but the plainly incompetent or those who knowingly violate the law."

Courts employ a two-part test to determine whether qualified immunity applies. If the answer to both questions is yes, then the public official does not get immunity.

  • Did the officer violate a Constitutional right?
  • Did the officer know their actions violated a “clearly established right"?

The next issue is to determine when a right is “clearly established." Under the current doctrine, a right is clearly established when the Supreme Court or the relevant federal appeals court has already treated the conduct as unconstitutional or where a public official's conduct is “obviously unlawful."

In 2009, the U.S. Supreme Court told lower courts they could skip the first part of the test at their discretion. Many courts now do so.

The result is that judges now look to past court cases to see whether there is a similar set of facts on record that would put the officer on notice that their actions violated the “clearly established" statutory or constitutional rights of another. The result is that the facts of a situation alleging police misconduct are highly relevant when determining when qualified immunity applies.

Applying Qualified Immunity

The Supreme Court has told lower courts to waive qualified immunity in cases that are very similar. It is not enough to show that a previous case denied an officer qualified immunity for broadly similar circumstances or actions. Instead, the facts must be “sufficiently clear" that a reasonable officer would understand that they are violating a constitutional or statutory right.

Picking just one example of thousands, the Eleventh Circuit Court of Appeals has distinguished between an officer firing at a dog surrounded by children, hitting and injuring a child, and an officer firing at a truck, instead hitting a passenger. In both cases, the officer fired at a target for questionable reasons, resulting in injury to the accidentally hit victim. However, the Eleventh Circuit said the two were dissimilar enough that the officer who shot the child was given qualified immunity, whereas a previous court found that the officer who fired at the truck did not get qualified immunity.

The Benefits of Qualified Immunity

There are several arguments made to continue the doctrine of qualified immunity as it currently exists, including:

  • Officers and public officials need qualified immunity to carry out their jobs. Public officials, particularly police officers, perform vital tasks that may require split-second decisions in stressful circumstances. Taking away qualified immunity could lead to officers being hesitant to act when it is most needed.
  • Removing qualified immunity could open up public officials and police to unwarranted lawsuits, in which judges and juries could second-guess split-second decisions and lead to significant costs for cities, police officers, and other public officials.
  • Officers do not have absolute immunity, and they can be held liable when they violate a clearly established constitutional right.
  • The narrow interpretation of clearly established precedent is appropriate. Officers should not be forced to apply an abstract right under the Constitution to specific circumstances in split-second decisions. Officers cannot be expected to be legal scholars or think through legal arguments when attempting to make an arrest.
  • Officers must have room to make mistakes or have moments of bad judgment without worrying about being sued.

The Arguments Against Qualified Immunity

Several arguments against qualified immunity, as it currently stands, include:

  • Liability is necessary to hold officers accountable for excessive force. As it stands, officers are free to maliciously violate the Fourth Amendment and other Constitutional rights of citizens without any cost to themselves, provided some obscure court case hasn't already dealt with almost the exact same situation.
  • The fear of rampant lawsuits against police are overblown. Many municipalities indemnify their officers, meaning the city would pay for any settlement, not the officers themselves.
  • The current doctrine, as applied today, leads to hairsplitting - it is often impossible for plaintiffs to meet the burden.
  • The doctrine is applied inconsistently and can greatly depend on the judge or judges involved in the case. For example, one judge has argued that “a court can almost always manufacture a factual distinction" when determining whether a previous precedent precludes an officer from getting qualified immunity.

What Will Happen to Qualified Immunity?

There has long been a discussion of ending or significantly amending the qualified immunity doctrine. Congress has introduced legislation to end qualified immunity, and Supreme Court justices of vastly different judicial philosophies have also endorsed revisiting police officers' liability shield. For now, however, it remains the doctrine of the courts that plaintiffs bringing a §1983 claim must first show that the public official's actions were very similar to a previous case in which qualified immunity was waived.

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