Qualified Immunity, or How the Law Shields Police

The death of George Floyd put police violence and accountability in the national spotlight once again. One issue is “qualified immunity,” a legal doctrine developed by the Supreme Court that’s employed by law enforcement to stop civil suits alleging violations of federal law. Since prosecutors have historically been hesitant to bring criminal charges against police officers, the protection from civil suits that qualified immunity confers has left many victims and their families with no means of legal redress.

1. What’s the point of qualified immunity?

It was meant to shield government officials from civil lawsuits that could hobble them in performing their duties. A federal law known as Section 1983, enacted after the Civil War, gave people the right to sue state officials for violating their rights. But in a 1967 decision arising from the arrest of clergy members who staged a sit-in at a segregated bus terminal in Jackson, Mississippi, the Supreme Court said the officers involved might be immune from a false-arrest suit if they had acted in “good faith,” or with the intention of following the law. The justices sent the case back to the lower court to make that determination. Qualified immunity was off on its long, winding road to the present, with opponents calling for it to be narrowed or abolished.

2. How does qualified immunity work?

The doctrine isn’t just a shield against liability — it protects police and other officials from having to go to trial in the first place. Since 1967, the Supreme Court has gone on to say that plaintiffs can’t advance their claims unless they show that officials violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” In practice, they have to find a prior case similar enough to theirs that the officials should have known their conduct was illegal. The high court has even held that trial courts can skip over the question of whether officials violated the law and instead simply find that no previous decision shows that they did.

3. Is it difficult to find such a prior case?

Very. Because the details of the past case often don’t quite match those of the case at hand, officials have gained immunity from allegations that they provided inadequate medical care, stole valuable property during a search or violated a person’s First Amendment rights. One petition to the Supreme Court that bills itself as an “archetypal example” of the doctrine’s excesses involves a plaintiff who had a police dog set on him and was bitten while sitting on the ground with his hands up. The police won immunity because, in the prior case of unlawful police action, the plaintiff had been lying down. Those calling for reform say qualified immunity makes a case against the police almost impossible to pursue.

4. What about in cases involving shootings?

The high court is also considering whether to review a Texas ruling denying qualified immunity to police officers alleged to have shot a 17-year-old without warning and then lied about it.

5. Is qualified immunity ever denied?

Sometimes. In 2017, a federal court in California denied immunity to a sheriff’s deputy who fatally shot a 13-year-old boy and said he mistook a toy gun for an AK-47 assault weapon. The Supreme Court declined to review the case.

6. Could the doctrine’s protections be narrowed?

The Supreme Court as a whole has been fairly quiet on the issue, though Justices Sonia Sotomayor and Clarence Thomas in particular have spoken out. In a 2017 case, Thomas wrote a separate opinion to “note my growing concern with our qualified immunity jurisprudence.” In a 2018 case, Sotomayor wrote in dissent that the doctrine “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” Justice Samuel Alito has been the doctrine’s biggest proponent.

7. How quickly could things change?

Petitions have been pending before the high court — including the one for the dog bite suit, which has lingered for more than a year — without the justices agreeing to hear any of them. But they could act at any time. They could agree to review one or more cases, signaling their interest in revisiting the doctrine, or send the opposite message by declining to review any of them. The doctrine could also be weakened, or undone, by Congress. One proposed House bill, for instance, would stipulate that qualified immunity can’t be used to block liability under Section 1983 for an abuse of authority.

The Reference Shelf

  • Read Section 1983, which opened the door to “civil action for deprivation of rights,” and the 1967 Supreme Court decision that established the idea of immunity to such action.
  • A QuickTake explainer on calls to “defund the police.”
  • Bloomberg Opinion contributor Stephen L. Carter says police have way too many laws to enforce.

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