What Is Qualified Immunity?

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As thousands of Americans have taken to the streets in the past weeks to protest policy brutality following the killing of George Floyd by a Minnesota police officer, a legal doctrine that makes it incredibly difficult for individual police officers to be held accountable for their actions in the field has come under renewed public scrutiny.

The practice, known as qualified immunity, protects certain government officials from being held personally liable for violating other people’s constitutional rights, and makes them immune from civil suits unless they violate “clearly established law.” While the doctrine does not grant police officers immunity from criminal prosecution, in the vast majority of police brutality cases, officers are never charged with a crime. Per the Washington Post, from 2005 to 2014, around 10,000 Americans were killed by police, but only 153 officers — roughly 1.5 percent of those involved — were charged with any wrongdoing.

Though once a relatively obscure rule, qualified immunity has become a common tool police departments use to shield officers from being sued for damages in cases of police brutality. As the New York Times notes, “For families of victims seeking some sort of relief through the justice system, qualified immunity presents another obstacle to obtaining financial or other damages.” Advocates for the measure, meanwhile, argue that it’s a necessary protection for police officers that allows them to do their jobs.

Below, what to know about the doctrine.

The doctrine was introduced by the Supreme Court in 1967.

The Supreme Court first justified the need for qualified immunity in the 1967 case of Pierson v. Ray. The case involved an incident that took place in Jackson, Mississippi in 1961, when a group of 15 priests from the Episcopal Society for Cultural and Racial Unity, including three Black priests, entered a whites-only waiting room at the local Trailways bus terminal, and were arrested and jailed by two police officers for breach of peace.

The group argued that they had been wrongfully imprisoned for exercising their civil rights, and sought damages. When the case reached the Supreme Court, the justices ruled that the police involved in the case were entitled to qualified immunity from liability for damages, and 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 had probable cause, and being mulcted in damages if he does.”

In short, the court decided that officers would not be able to make difficult decisions on the job if they were constantly worried about having to cover the costs of potential lawsuits against them.

It was years later, in the 1982 case of Harlow v. Fitzgerald, that the modern version of qualified immunity truly took shape. Specifically, as Nathaniel Soble explains at Lawfareblog, the court ruled that the only way a plaintiff could overcome an official’s qualified immunity was to establish that the official had “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.”

The court also expressed concern that, if certain public officials did not have qualified immunity and were not shielded from potentially frivolous lawsuits, “able citizens” would be deterred from taking public office.

Police are not the only officials who enjoy qualified immunity. In Harlow, the court established that it applies to any government official who performs “discretionary functions.” This includes firefighters, teachers, publicly employed social workers, and civil-rights commissioners.

Proving that an officer violated “clearly established” right is extremely difficult.

As Amir H. Ali and Emily Clark write in The Appeal, to prove that a right violated by an officer is “clearly established,” the victim or plaintiff must find and cite an existing court decision in a similar case with nearly identical facts.

This means that if a police officer violates your rights, you can only overcome their qualified immunity and file a civil suit against them if another court has previously decided to overrule the qualified immunity of another police officer, in a case with details remarkably similar to your own. In other words, if an officer is the first to misbehave in a certain way, it is nearly impossible to hold them accountable in the courts.

Take, for example, the case of Alexander Baxter, a homeless man who was bitten by a police dog in Nashville in 2014. Nashville police caught Baxter carrying out a burglary, and according to Baxter, he had already surrendered when the police ordered the dog to attack him. Baxter sued, but the Sixth Circuit Court of Appeals tossed out his case because, per Politico, the court held that “while it was well established that a police dog couldn’t be unleashed on a suspect who was lying down, there was no case addressing someone sitting down with their hands up, as Baxter said he was doing.”

As Fifth Circuit Judge Don Willett wrote in a 2018 concurrence criticizing the doctrine: “To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave badly.”

The doctrine has critics on the Supreme Court, but we’re unlikely to see a new decision on it soon.

On the Supreme Court, Justice Sonia Sotomayor wrote in 2018 that the rule “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished,” and Justice Clarence Thomas said earlier this month that he had “strong doubts” about the doctrine. A new decision on the rule isn’t likely to come soon, though. This spring, the Supreme Court considered 10 cases that involved qualified immunity for possible review, including the case of Alexander Baxter, but rejected all of them.

After the Supreme Court rejected the cases, critics of the doctrine, like ACLU’s legal director David Cole, argued that the responsibility now lies with Congress to abolish the practice.

“We have seen the deadly consequences play out on the streets, and Black Americans have largely paid the price,” Cole said in a statement. “Recent events demonstrate the urgent need for Congress to stand up for the rule of law and abolish qualified immunity — for anyone acting under color of law — to close the loophole allowing government officials to escape accountability for violating constitutional rights.”

This post has been updated.

What Is Qualified Immunity?