Austin Aguirre is a Dallas-based attorney, and formerly served as legislative counsel for Rep. Justin Amash who introduced a bill to Congress to end qualified immunity.
Qualified Immunity: What is it, what isn’t it, and why should I care?
You’ve seen the headlines. “Police Reform & Racial Justice,” or, “After weeks of protest, meaningful police reform appears unlikely,” or, “Defund the Police?” among countless others.
There’s no definite beginning to the movement to reform police in America. Early examples include efforts to counter police corruption during the Prohibition Era and attempts to shift to community policing in the mid 1900s. We can, however, trace the fervor of the conversation today to the killing of George Floyd in May. Even today, months after his death, protests continue across the United States calling for defunding, scaling back, or reforming the police.
But what does that mean? Well, the honest answer is it means something different from every mouth that says it. Defund law enforcement? Dismantle the police? Restrict this weapon or that tactic? At the center of it all is Qualified Immunity, a quaint, court-created legal doctrine shielding state and local officials from accountability.
What is it?
I’ll start at the beginning. Right after the Civil War, Congress found itself having both to build the country back together and try to find a way to counter the rampant racial violence sweeping the nation, especially in the South. So, during the Reconstruction Era, we got three new constitutional amendments—the Thirteenth, Fourteenth, and Fifteenth—and a bevy of civil-rights laws.
Southern states did little to help the federal government enforce its laws, though, and in many cases state and local officials were in on it all. They were routinely in lynch mobs, keeping Black people from voting, aiding in massacres of entire communities—the list goes on and on. The problems were so ubiquitous that the federal government found it too difficult to keep up with. Even though it was illegal for a local official to violate someone’s rights, that wasn’t much help when federal prosecutors were too busy or found it too futile to bring suit. To solve this problem, at least partially, Congress passed what we now call Section 1983.
Section 1983, passed in its original form as part of the Civil Rights Act of 1871, gives a cause of action to anyone whose rights were violated by a state or local official. In other words, if a police officer wrongfully arrests you, beats you, or otherwise violates your rights, then you can sue them under Section 1983 for money damages in civil court. Finally, anyone whose rights were violated would no longer need to rely on prosecutors to make sure the violator was brought to justice—they could just bring suit on their own and actually see the fruits of litigation themselves in the form of money damages.
For almost 100 years after its passage, Section 1983 was an unqualified tool for anyone seeking to sue state and local officials who violated their constitutional or legal rights. But, between 1967 and 1982, the Supreme Court fundamentally changed the playing field. At first, and a full ninety-six years after Section 1983 became law, the Supreme Court suddenly found that police officers could take advantage of an immunity that supposedly existed in 1871—if the police officer believed in good faith that they made a lawful arrest, then they could not be held liable if the statute under which they made the arrest was later found to be unconstitutional. (Legal scholars have pointed out that this supposed immunity did not actually exist in 1871, or ever—at least, not in the way the Supreme Court said it did.)
This small concession was a Pandora’s box: this “qualified” immunity—so called to differentiate it from absolute immunities, like for judges—quickly blossomed into a general good-faith defense that a state or local official could claim in any context. And, by 1982, the Supreme Court dropped even the requirement for good faith—if the right that was violated wasn’t “clearly established” at the time, then the officer cannot be held liable.
So, what’s the big deal?
“Clearly established” is a big deal. While the phrase seems relatively innocuous, in practice it’s very strict. To hold an officer liable, the plaintiff whose rights were violated must show in court not only that the officer violated their rights—they have to show that a reasonable, hypothetical officer in the same position would have known it was a rights violation because there is another case in the same jurisdiction with nearly identical facts holding that this specific right was violated. “Nearly identical” is no joke—it means that shooting an unarmed man sitting in the street with his hands up is not similar enough to shooting an unarmed man lying prostrate on the ground. And the problem is exacerbated by a cruel, circular irony: if there’s no prior case, then the officer gets Qualified Immunity, which means this case can’t become a “prior case,” which means the next officer who violates the same right in the same way also gets Qualified Immunity, and so on and so forth.
Here are some examples:
- In the Eleventh Circuit, a police officer was shielded from liability because there was no prior case in that circuit stating that attempting to shoot at a dog and shooting a child, instead, was a rights violation.
- In the Ninth Circuit, there was no prior case stating that it was a rights violation for a police officer to steal property during a search. So, the police officer was shielded from liability for stealing over $225,000.
- Out of the Ninth Circuit, again, the Supreme Court found no prior case similar enough to clearly establish that a thirteen-year-old girl had a right not to be strip searched by school officials over a single pill.
- In the Fifth Circuit, there was no prior case similar enough to clearly establish that a prisoner had a right not to be forced naked into a cell for six straight days with “massive amounts” of human feces on the walls and ceiling and raw sewage on the floor and clogging the drain.
What are the arguments for keeping Qualified Immunity?
I’ve seen three main arguments for keeping it. First, that we don’t want police officers or other state or local officials having to pay money out of their own pockets for trying to enforce the law. Second, that we don’t want to cloud the judgment of officers when they’re trying to make split-second decisions. And third, that there would be a flood of frivolous lawsuits against the police if we get rid of Qualified Immunity. All three are good considerations, but none of the three stand to scrutiny.
First, officers don’t pay money out of their own pockets for lawsuits. Officers are indemnified by their local governments over 99.5% of the time. That is, if there is a successful lawsuit against an officer, they won’t be paying the judgment—the city will. This arrangement places the burden where it should be—cities and police departments make decisions on how to train officers, so they probably should pay the judgments when officers violate rights. And if cities and police departments are stuck with the bill, they’ll make smarter decisions about hiring and training their officers.
Second, we already know that lawsuits don’t enter officers’ minds, even in split-second decisions. In fact, lawsuits are not even in the top ten things that officers think about when working in the field, regardless of the situation. And this won’t change after qualified immunity because, as explained above, they don’t pay a dime in lawsuits.
And third, there won’t be a flood of lawsuits because Qualified Immunity is not the only consideration attorneys have when deciding whether to take on a case against the police. Among the other considerations, the case must still clear the Fourth Amendment’s “reasonableness” threshold in most cases (i.e., as long as the officer was reasonable in their conduct, they probably won’t be held liable) and the cost of litigation for Section 1983 claims is high. Attorneys usually take police-brutality cases on a contingency fee, which means the attorney takes a percentage of anything they win but bears all the cost of litigation if they lose. Attorneys lose money on frivolous lawsuits.
What isn’t Qualified Immunity?
Qualified Immunity does not shield officers from prosecution in criminal court. If a police officer unlawfully kills someone or otherwise violates someone’s rights, they are still subject to criminal prosecution. We saw this with the officer who killed George Floyd—he’s been arrested and charged with murder.
But, just because state and local officials are not legally immune to criminal prosecution, that doesn’t mean they aren’t protected. Government attorneys have something called “prosecutorial discretion.” In a nutshell, this means prosecutors get to decide whether to file charges, and they far more often than not choose not to bring charges against government officials. Prosecutors work with the police and other government officials every day—if they start suing them, their lives become difficult. That’s outside the scope of this article, though.
What are people doing about it?
There are two main avenues proponents use for ending Qualified Immunity at the federal level. One is to try to get the Supreme Court to take on a case that would allow it to end or reform Qualified Immunity, since it created it in the first place. Right now, this doesn’t look like a fruitful approach—the Supreme Court had several chances this term to take on several such cases but decided against taking any of them. And this isn’t surprising; Chief Justice John Roberts is known for being a strong supporter of Qualified Immunity.
The other is through legislation. Congresspersons Amash (MI-03) and Pressley (MA-07) introduced a bill in June to fully end Qualified Immunity under Section 1983. Democrat leadership responded several weeks later with another approach—ending Qualified Immunity for state and federal police officers, but no one else (like prison guards, education officials, city council members, etc.). But, with Republicans controlling the Senate and White House, any reform through Congress seems also unlikely.
Other than the federal level, there have been success stories in states, with Colorado the most recent state to create a workaround. Colorado’s new law gives anyone whose rights were violated a cause of action in state court against the violator when the rights are secured by the laws or constitution of Colorado.