The tragic murder of George Floyd by former Minnesota police officer Derek Chauvin, along with other acts of police violence, has thrust the once-obscure doctrine of qualified immunity into the national spotlight.
Unfortunately, the doctrine is often misunderstood or misrepresented.
In this article, we’ll explain how qualified immunity applies to lawsuits against police officers, which states recognize qualified immunity, and whether the doctrine of qualified immunity is likely to survive.
Qualified immunity is a legal doctrine that protects local, state, and federal government officials, including police officers, from civil (money) lawsuits.
Under the doctrine of qualified immunity, a police officer or any other government official cannot be held personally liable for their actions while acting within the scope of their official duties unless the plaintiff can prove that the officer violated a “clearly established” constitutional right.
The doctrine of qualified immunity is very favorable to police officers. The objective standard means that even an officer who acts in bad faith is entitled to the qualified immunity defense if a different officer could have reasonably made the mistake.
As the United States Supreme court explained in Malley v. Briggs, 475 U.S. 335, 341 (1986):
“Qualified immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”
Qualified immunity almost always arises in civil rights cases filed under 42 U.S. Code § 1983 (“Section 1983), a federal statute that allows individuals to sue for damages when local, state, or federal government officials violate their constitutional rights.
For example, let’s say a local police officer pulls you over with reasonable cause but proceeds to assault you without provocation. You could use Section 1983 to sue the officer in federal court for violating your Fourth Amendment right to be free from excessive force.
Let’s look at a recent real-life example in which a lawsuit was filed using Section 1983 and qualified immunity applied:
Now, let’s look at a recent real-life example in which a lawsuit was filed using Section 1983 and qualified immunity did NOT apply:
The U.S. Supreme Court first introduced the idea of qualified immunity in Pierson v. Ray, 386 U.S. 547 (1967), a case in which a group of peaceful protestors were wrongfully arrested for violating a statute later held to be unconstitutional. The protestors sued the police under Section 1983, alleging a violation of their constitutional rights.
In deciding to grant qualified immunity to the officers, the Court explained that, although Section 1983 does not explicitly mention qualified immunity, immunity for government officials had long been established in common law. The Court went on to set forth a subjective standard for determining whether qualified immunity applied. In short, the Court held that officers will be excused from liability if they act in “good faith.”
Fifteen years later, the U.S. Supreme Court—in Harlow v. Fitzgerald, 457 U.S. 800 (1982)—reaffirmed the legality of qualified immunity but abandoned the subjective good faith standard it had established in Pierson, and adopted the current objective standard (i.e., officers are excused from liability unless they violate a clearly established constitutional right of which a reasonable person would have known).
Most people believe that if you do something unlawful, you should be held accountable.
So why do we make a limited exception for law enforcement and government officials?
The U.S. Supreme Court did its best to explain the justification for qualified immunity in Harlow. The Court explained that qualified immunity seeks to achieve a “balance” between holding officials accountable and minimizing the “social costs” associated with suing government officials.
The 4 social costs identified by the Court were as follows:
Proponents of qualified immunity often point to the last social cost. Proponents, for example, are quick to argue that the looming threat of even baseless lawsuits will cause police officers to hesitate when they have to make a split-second or life-and-death decision.
Along these lines, the U.S. Supreme Court argued:
“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects all but the plainly incompetent or those who knowingly violate the law.”
Critics of qualified immunity typically make 2 arguments against this defense:
The argument that qualified immunity is unlawful is technical, but goes something like this:
The U.S. Supreme Court has primarily justified the doctrine of qualified immunity as an interpretation of common law immunities that were “well established” when Section 1983 was passed in 1871. In other words, the concept of qualified immunity was so well understood and accepted in the early 19th century that it should apply to cases brought under Section 1983, even though there are no references to qualified immunity in the actual language of Section 1983.
The problem with this argument is that, according to critics like University of Chicago Law School Professor William Baude, the concept of qualified immunity was NOT well accepted in the 19th century. In fact, both in the Founding Era (1774-1779) and throughout the 19th century, government agents who committed constitutional violations were typically held strictly liable.
Perhaps the more intriguing and approachable argument against qualified immunity is that it’s simply ineffective.
A number of lawyers, including UCLA law professor Joanna Schwartz, have pointed out that qualified immunity doesn’t seem to satisfy the policy goals it aims to achieve.
For example, governments have paid 99.98% of the damages that plaintiffs have recovered in lawsuits alleging civil rights violations by law enforcement, undermining the U.S. Supreme Court’s concern that government officials would have to personally pay the damages.
For example, the city of Minneapolis paid the entire $27 million settlement in the wrongful death case filed by the family of George Floyd against 4 Minneapolis police officers.
What’s more, the doctrine of qualified immunity doesn’t appear to weed out frivolous lawsuits. When considering all cases brought under Section 1983, only 7 (0.6%) were dismissed at the motion to dismiss stage, and 31 (2.6%) were dismissed at summary judgment on qualified immunity grounds. In other words, most claims where qualified immunity applied were litigated through discovery and trial.
Finally, there is the concern among critics that qualified immunity may encourage government officials, such as police officers, to be more reckless.
As Supreme Court Justice Sonia Sotomayor stated:
“[Qualified immunity] sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
In 2020, there was a growing call to limit or abolish the doctrine of qualified immunity. Although no meaningful changes have taken place at the federal level yet, members of Congress introduced a bill called The George Floyd Justice in Policing Act of 2020 that aims to limit qualified immunity. What’s more, several recent Supreme Court decisions have suggested that the justices may be interested in reconsidering the issue.
Interestingly, some states have grown tired of waiting on the federal government or the U.S. Supreme Court to act and have taken matters into their own hands.
In New Mexico, Colorado, Massachusetts, Connecticut, and New York City, legislatures have passed a state-version of Section 1983 that explicitly prohibits the qualified immunity defense. Although these state laws don’t abolish qualified immunity at the federal level, they provide workarounds for plaintiffs to sue police officers in state court for damages.
The vast majority of police shooting cases are settled before they ever get to trial. Here’s a look at some of the largest police shooting settlements in our country's history:
|Police misconduct settlements|
|New York City||$170 million|
|Los Angeles||$33 million|
|Washington, D.C.||$13 million|
|San Francisco||$2.5 million|
Filing a lawsuit against a government official can be particularly challenging and not just because of the qualified immunity defense. When suing a government official, plaintiffs must follow certain procedures that can be ignored when filing a lawsuit against a private citizen.