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The Future of Qualified Immunity

By Chandler Parker, Attorney, Collins + Collins LLP

Originally published on March 29, 2022. Reprinted with permission from Collins + Collins LLP.

The national dialogue about criminal justice reform has sparked calls for the abolition of qualified immunity. The U.S. House of Representatives voted to approve the George Floyd Justice in Policing Act, a bill that would have expressly eliminated all qualified immunity for state and federal law enforcement officers. Given the current social and political factors affecting public perceptions towards law enforcement, is there a significant risk that qualified immunity will be eliminated as a defense in civil rights litigation?

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The Qualified Immunity Defense

Qualified immunity is a judicial doctrine created by the Supreme Court that may shield state officials from liability for their misconduct, even when they break the law. Under this doctrine, a police officer cannot be held liable for violating someone’s federal civil rights, unless their conduct violated a “clearly established law.” While the doctrine is malleable, it generally requires a civil rights plaintiff identify an earlier decision by the Supreme Court or Court of Appeals that found the alleged misconduct was unconstitutional. If none exists, the official could be found immune.

The Origin of Qualified Immunity

The justification for qualified immunity was first introduced by the Supreme Court in the 1967 case Pierson v. Ray. The plaintiffs, who were black, alleged their arrest for improper assembly in a “whites only” waiting room at a bus station was unconstitutional.  In an unrelated case decided after plaintiffs’ arrest, the Supreme Court struck down the improper assembly law as unconstitutional. Nonetheless, defendant police officers argued they should not be held liable for violating plaintiffs’ constitutional rights because they genuinely believed the law was valid at the time of the arrest. The Supreme Court agreed and held a police officer should be excused from liability “for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional.”

Although qualified immunity has gone through several iterations since it was first applied in Pierson, the intent of the doctrine is largely the same – to shield police officers from lawsuits based on a reasonable mistake about the constitutionality of their conduct. Police officers are not trained constitutional scholars and should not be charged with predicting the future course of constitutional law during rapidly evolving, life-or-death situations.

Criticism of Qualified Immunity

Critics of the doctrine argue that qualified immunity is unlawful because the text of the Civil Rights Act did not create the defense. Many criminal justice reform advocates view qualified immunity as discriminatory because the doctrine gives too much weight to the government official’s interest in immunity and too little weight to the plaintiff’s interest in recovery.

Even some national law enforcement organizations have called for the abolition or curtailment of qualified immunity. The Law Enforcement Action Partnership, a nonprofit group of police, prosecutors, and correctional officers, asked Congress to pass a law that will ban the doctrine from being used as a legal defense, saying it had eroded faith in police. In testimony before a congressional committee, Ronald L. Davis, an official with the National Organization of Black Law Enforcement Executives, stated that the doctrine “prevents police from being held legally accountable when they break the law.” The Major Cities Chiefs Association also modified its long-standing position in favor of qualified immunity to say there are circumstances in which it should not apply.

Elimination of Qualified Immunity Is Unlikely

Notwithstanding the highly politized debate around the issue, civil rights cases are rarely dismissed because of qualified immunity. In a 2017 study published in the Yale Law Journal, qualified immunity resulted in the dismissal of just 0.6% of the cases in the dataset before discovery, and just 3.2% of the cases before trial. Thus, the empirical data suggests that the overall risks, costs or outcomes in civil rights litigation are unlikely to change significantly whether qualified immunity is eliminated or not.

In 2020, the Supreme Court declined to hear eight cases involving the qualified immunity doctrine, seven of which involved police accused of excessive force or other misconduct. The George Floyd Justice in Policing Act also collapsed in Congress after the elimination of qualified immunity became an insurmountable sticking point. In similar fashion, at least thirty-five state qualified-immunity bills have died in the past eighteen months, according to The Washington Post.

Violent crime rates have risen since 2020, a fact that will likely cause many lawmakers to step back from criminal justice reform efforts so as not to appear “soft on crime.” In a July 2021 Pew research pole, Americans expressed more concern about violent crime than they did about the federal budget deficit, climate change, racism, economic inequality, and illegal immigration.

Despite the current political climate, widespread changes on qualified immunity are unlikely anytime soon.

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