Qualified immunity protects police officers from lawsuits, making it nearly impossible for individual citizens to sue public officials unless they can prove they violated a “clearly established law”. That’s where the lines begin to blur.
Reform or abolishing qualified immunity must happen to hold police accountable for their actions when they violate an individual’s constitutional rights. Some states are already moving to remove this type of legal protection.
First, though, we need to break down what qualified immunity means and how it prevents justice for those whose rights have been violated at the hands of law enforcement. We’ll also discuss what’s being done to reform or abolish the current standard, and why it’s important.
What is Qualified Immunity?
If government officials violate your rights, you can sue them in court. But a court-created legal doctrine called “qualified immunity” often shields those officials from liability, even when egregious violations have occurred. (1) But how can that happen? The police, or other government officials, can only be held liable for violating rights that are “clearly established.”
For rights to become “clearly established”, they would require precedent. Meaning that it requires a previously decided case with nearly identical facts, to create that precedent. However, with such a rule, it means that if no previous case decision exists that’s like your case, then they are immune. It may be clear that an officer violated your rights, but if no previous case involves an officer violating someone else’s rights in that particular way, then the officer gets one free bite of the apple. To compound that, many courts decide the issue so that your case is not creating precedent either, and the law freezes in place. (1)
“Police unions claim that qualified immunity exists to protect police officers who play by the rules. But it does the exact opposite. Police officers who obey the law don’t need qualified immunity — they already are safe from liability. If a police officer doesn’t violate a person’s rights, that person doesn’t have a legal claim against the officer.” (1)
How Does Qualified Immunity Prevent Justice?
Not only does qualified immunity let police off the hook for misconduct but it also denies their victims compensation. This prevents justice.
Qualified immunity has fostered an environment where the police feel empowered to violate people’s rights because they know they’ll face very little consequence, if any, for their actions. (4) That blocks justice.
That in turn “erodes relationships with the community and diminishes the systems’ credibility.” (4) That blocks justice.
“Under qualified immunity, lives can be taken with impunity.” (4) That blocks justices.
With qualified immunity, citizens with civil rights complaints cannot argue that a police officer’s conduct was motivated by wrongful intent, malice, or even prejudice. “What matters is not what the officer did to you, but how it compares with what a court previously held was wrong in a previous, very similar factual scenario.” (2) That blocks justice.
On the flip side, due to qualified immunity undermining public accountability, “the doctrine also hurts the law enforcement community by denying police the degree of public trust and confidence they need to do their jobs safely and effectively.” (3) That blocks justice.
Reform or Abolish Qualified Immunity: What is the Solution?
Qualified immunity can no longer exist in its current state, so what’s the best solution? The most sensible solution would be to completely abolish qualified immunity so that the public officials are accountable for their violations of rights just like anyone else. This can be accomplished by either the Supreme Court reversing its precedent or through congressional legislation. If this did happen, however, “municipalities would still have the option to indemnify state agents under appropriate circumstances.” (3)
There are alternatives to completely ending qualified immunity, which would remove qualified immunity in a typical case while preserving a modified immunity in a few safe harbors. (3)
The opposition will try to argue that if we do away with qualified immunity then police officers could be subject to losing their homes and their savings. However, that is not possible because most cities and states, and their insurance companies, cover the costs of these lawsuits. Ultimately, qualified immunity leaves victims without compensation and insurance companies do not have to pay for their insured officers’ violations of your fundamental Constitutional rights.
Some states have already moved away from this type of legal protection for police officers including the state of Colorado in June 2020, and Connecticut in August 2020. The New York City Council did the same for its police department in March 2021, as well as New Mexico in April 2021.
On the federal level, in March 2021, the U.S. House of Representatives passed the George Floyd Justice in Policing Act which seeks to limit the ability of the police to claim qualified immunity as a defense in private lawsuits. The bill is now in the U.S. Senate for consideration. “Similar laws are likely to spread across the country as Americans and their lawmakers examine whether qualified immunity for police does more harm than good.” (2)
The ACLU has been part of the movement to abolish qualified immunity, working to move legislation in statehouses, fighting the use of the doctrine in court cases, and advocating to end qualified immunity on the federal level as well.
“Qualified immunity reform is needed to ensure that police can be held accountable after they violate the constitution. But we also need reform on the front end that prevents police brutality before it happens. An important first step is to set clear national standards that require all police departments to adhere to common-sense limitations on use of force and best practices.” (4)
Civil rights cases involving law enforcement can be highly complicated. Lawyers who are not experienced experts in this work will often lose their clients’ cases to the many special law enforcement defenses and trapdoors that await. The partners at Haddad & Sherwin LLP are experienced Civil Rights – Trial Lawyers, and national leaders among civil rights attorneys.
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1. Doyle, Colin. “Want To Reform The Police? Get Rid Of Qualified Immunity”. WBUR: Commentary. https://www.wbur.org/cognoscenti/2020/07/28/protests-police-immunity-colin-doyle. 2020, July 8.
2. Gipson, Jr., R. R. “How qualified immunity protects police officers accused of wrongdoing”. The Conversation. https://theconversation.com/how-qualified-immunity-protects-police-officers-accused-of-wrongdoing-159617. 2021, May 4.
3. Schweikert, J. “Qualified Immunity: A Legal, Practical, and Moral Failure”. CATO Institute. https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure. 2020, Sept. 14.
4. Yohnka, E., Decker, J., Andersson, E., and Ahmad, A. “Ending Qualified Immunity Once and For All is the Next Step in Holding Police Accountable”. ACLU: News & Commentary. https://www.aclu.org/news/criminal-law-reform/ending-qualified-immunity-once-and-for-all-is-the-next-step-in-holding-police-accountable/. 2021, March 23.