Qualified immunity: What is it, and how does it work?

The concept of qualified immunity still occasionally confuses members of the public. While they may know it shields government actors like police from certain legal judgments, they may not appreciate the doctrine’s specifics and details. This article explains the basic aspects of qualified immunity.

What is qualified immunity?

Qualified immunity is an American legal doctrine that says government officials can’t be personally sued for monetary damages in civil court unless they violated a constitutional right that was “clearly established.”

Qualified immunity does not apply to criminal charges – only civil lawsuits. Police officers can still be charged criminally. But in civil actions it protects them against financial liability in all but limited circumstances.

How does qualified immunity work?

When a government official such as a police officer is sued over a claimed violation of rights, courts apply a two-part test:

1. Did the officer violate a constitutional right (e.g., use excessive force)?
2. Was that right “clearly established” when the event occurred?

If either answer is no, qualified immunity typically applies.

What constitutes “clearly established” can be a source of controversy. To determine whether a right is clearly established, courts often demand a very similar past case – often virtually identical – that found the behavior unconstitutional. This is why critics say qualified immunity makes it hard to hold officials accountable even for cases of serious misconduct.

Where did qualified immunity come from?

The 1967 Civil Rights era decision Pierson vs. Ray laid the foundation to create the concept of qualified immunity. In that case, a mixed-race group of clergy were arrested for trying to use a “whites only” waiting room in segregation-era Mississippi. They were charged under a “breach of peace” statute. When that law was later found unconstitutional, they sued police, claiming their constitutional rights had been violated.

The Supreme Court ultimately ruled that because the officers had acted in good faith, with sufficient probable cause under a law that had not yet been found unconstitutional at the time, they could not be held personally liable for harm done to the plaintiffs. While this did not articulate the full modern concept of qualified immunity, it set the important baseline that if officers acted in good faith and believed their actions were legal, the law would protect them.

How has the modern concept of qualified immunity expanded?

The 1982 decision Harlow vs. Fitzgerald expanded the concept of qualified immunity substantially, broadening its standard from “good faith” to whether an officer violated a right that was clearly established.

That case arose from the firing of Air Force whistleblower A. Ernest Fitzgerald by the administration of President Richard Nixon. Fitzgerald sued several senior White House aides, including presidential advisor Bryce Harlow, claiming the firing violated his First Amendment rights. The Supreme Court held that while presidential aides did not have absolute immunity, they were protected by qualified immunity unless they violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”

This decision shifted judicial focus away from the official’s subjective intent in favor of a more theoretically objective standard. Wrote the court, “Bare allegations of malice should not suffice to subject government officials ... to the costs of trial. Rather ... government officials performing discretionary functions generally are shielded ... insofar as their conduct does not violate clearly established statutory or constitutional rights.”

As a result, courts found it easier to dismiss lawsuits earlier, without going to trial. The Harlow decision also became precedent for numerous subsequent qualified immunity decisions.

What is a “clearly established” right?

In the post-Harlow context of qualified immunity, victims must prove not only that their constitutional rights were violated, but also that there was previous jurisprudence around a case with similar facts that already said the conduct was unconstitutional. If there is no such case, even very wrong-seeming behavior may be protected.

Why is qualified immunity controversial?

Critics of qualified immunity argue that it prevents accountability even in cases of clearly unjust and abusive behavior if there’s no near-exact precedent on record. This can diminish faith in the justice system and remove any incentive for police to improve.

Qualified immunity is also a judicially created doctrine, not a law passed by Congress, and courts may interpret it differently.

What are the arguments for qualified immunity?

Key arguments in favor of qualified immunity include:

• It protects officers against frivolous lawsuits and lets them do their jobs without constant fear of litigation.
• It supports decisive actions in stressful situations, allowing officers to act confidently in accordance with their training and instincts.
• It helps retain those who might not remain in law enforcement if they constantly feared personal liability for their actions.
• It gatekeeps against suits with no clear precedent, saving court time and resources.

What are the arguments against qualified immunity?

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Key arguments against qualified immunity include:

• It may help officers guilty of misconduct evade accountability, even for apparent violations of people’s rights.
• The “clearly established” standard is too rigid, with its insistence on identical cases, and prevents justice for those victimized by government.
• It can erode public trust and damage confidence in the judicial system.
• Courts’ interpretations of “clearly established” can be inconsistent.
• It may be contrary to the Civil Rights Act of 1871, which was intended to protect citizens whose rights were violated by government.

What are some notable qualified immunity decisions?

Some positive qualified immunity decisions, from a police officer’s perspective, include:

White vs. Pauly (2017)

Officers responded to a rural home late at night in pursuit of a drunk driver. They didn’t announce themselves as police as they approached, and when a man in the house aimed a gun out the window, an officer shot him. The officer was not among those arriving first at the scene, and the court ruled he couldn’t have known whether others announced themselves and there was no clearly established law requiring him to hold fire.

Kisela vs. Hughes (2018)

A woman with a knife was acting erratically. As officers arrived they saw her holding the knife near another woman, though not making threatening moves. An officer quickly shot her. The court cited the urgency of the moment and that the officer’s actions weren’t clearly unconstitutional.

Mullenix v. Luna (2015)

Officers were in high-speed pursuit of a man who’d threatened to shoot police. An officer on an overpass fired at the car, killing the driver. The court said the officer’s decision didn’t violate clearly established law.

What were some controversial qualified immunity decisions?

Qualified immunity decisions that have generated controversy include:

Corbitt vs. Vickers (2019)

A deputy shot at a nonthreatening dog and missed but struck a 10-year-old child. The Eleventh Circuit granted qualified immunity, finding no clearly established law that prohibited the officer’s action given the context.

Baxter vs. Bracey (2020)

A homeless man suspected of burglary surrendered after a short pursuit. As he sat with his hands raised, officers released their K-9, which attacked and bit him. The U.S. Sixth Circuit granted qualified immunity, saying no previous case had found this exact behavior unconstitutional.

Jessop vs. City of Fresno (2020)

While executing a search warrant, police allegedly stole over $225,000 in cash and property. The Ninth Circuit granted qualified immunity, ruling that while the theft was wrong, it wasn’t “clearly established” that it violated the Fourth Amendment. The officers were not criminally charged.

How can an officer lose qualified immunity?

There are a few ways an officer can lose qualified immunity.

1. Violation of a clearly established law: If the law an officer is accused of violating was not clearly established when the incident occurred, qualified immunity would not apply. Courts often consider whether the law was sufficiently clear enough for a reasonable officer to know their actions were unlawful. Part of that involves looking at past court decisions around the law.
2. Excessive force or unconstitutional conduct: If an officer used excessive force in violation of the Fourth Amendment, and if this conduct was so outrageous that it would be obvious to a reasonable officer that it was unconstitutional, qualified immunity may not apply.
3. Failure to follow protocol: If an officer deviates from established department protocols based on constitutional rights (e.g., violating due process, engaging in racial profiling), qualified immunity may not apply.
4. Deliberate indifference or recklessness: If an officer is accused of being deliberately indifferent to a person’s rights – for instance, ignoring their medical needs – in a way so unreasonable that a reasonable officer would have known it was unconstitutional, qualified immunity may not apply.
5. Clear legal precedent: If there is clear jurisdictional precedent that clearly establishes an officer’s conduct as illegal, qualified immunity may not apply. For example, if there are previous court decisions where similar conduct was deemed unconstitutional, that could inform the officer that their actions would violate the law.

How would an officer employ a qualified immunity defense?

Here’s how an officer facing a lawsuit would typically mount a qualified immunity defense.

1. Suits against government officials are typically filed under 42 U.S. Code § 1983, a federal statute that allows individuals to sue state actors for violations of their constitutional or federal statutory rights.
2. Through their attorney, the officer should assert qualified immunity early – potentially in a motion to dismiss or motion for summary judgment.
3. Whether qualified immunity applies is decided by a judge, not a jury, using the two-part test described above. If the judge decides it applies, the suit is dismissed without going to trial.
4. If qualified immunity is denied, the officer can appeal.
5. If the appeal is denied, the case proceeds.

What states do not have qualified immunity?

Qualified immunity is a federal doctrine, but states can modify or abolish it for claims at the state level. Several have.

• Colorado: In 2020 SB 217 made Colorado the first state to abolish qualified immunity for law enforcement.
• New Mexico: The next year New Mexico limited the use of qualified immunity in state court. Residents can now sue law enforcement for constitutional violations in New Mexico courts, even if qualified immunity would otherwise apply under federal law.
• New York: State law allows victims of police misconduct to sue officers for violations of the state constitution, explicitly noting qualified immunity does not apply to those cases.
• Connecticut: In 2020 Connecticut passed a law permitting lawsuits against police in cases of misconduct and seeking damages in state court.

Other states have considered or are considering legislation to limit qualified immunity.

Ultimately, can police break the law to enforce the law?

The short answer is no, police officers aren’t allowed to break the law in the name of enforcing the law. However, some nuances apply.

One exception is “exigent circumstances,” or emergency situations that allow police to bend certain rules. For instance, if someone’s life is in danger, they can enter a home without a warrant, and if someone is destroying evidence, they can often act outside standard procedures to stop it. Their actions still must be justified in court afterward, or any evidence obtained could be suppressed.

In addition, undercover officers may pretend to be criminals to gather evidence and may do such things as buying illegal drugs in sting operations to apprehend drug dealers. Such actions may be permitted under strict guidelines, especially when authorized by a court.

Criminal charges against police are possible but typically rare.