What Is Qualified Immunity? Definition and Examples

George Floyd Protest - Bayside Queens
Protesters wearing masks and carrying signs that say, "Reinvest in Black Futures," "End Qualified Immunity," and "No Justice No Peace" with a peace symbol as they walk through neighborhoods at the Black Lives Matter protest in Bayside, Queens. This peaceful protest was a March against Police violence against people of color and a reaction to events that happened in Bayside on July 12, 2020 where protestors were accosted by Blue Lives Matter supporters and one of the protesters was arrested while others were pepper sprayed by New York Police.

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Qualified immunity is a judicially created legal principle that protects state and local government officials from being sued for their actions in civil court. First developed by the U.S. Supreme Court during the 1960s, the application of qualified immunity has been criticized by those who say it allows for and even encourages the use of excessive force by police.

Qualified Immunity Definition

Specifically, qualified immunity shields state and local government officials, such as police officers, teachers, and social workers from being sued by persons claiming that the officer violated their rights, except in cases where the official violated a “clearly established” natural, legal, or constitutional right. While federal government officials such as judges, prosecutors, and legislators do not receive qualified immunity, most are protected by the similar doctrine of absolute immunity.

Qualified immunity protects government officials from civil lawsuits only—not from criminal prosecution—and does not protect the government itself from being found liable for the officer’s action. For example, many plaintiffs who sue police officers individually also seek damages from the city government that employed them. While plaintiffs might fail to prove that the officer violated their “clearly established” rights, they might succeed in proving that the city was legally remiss in hiring an unqualified officer.

Origins

While originally developed by the Supreme Court during the post-Civil War Reconstruction Era, the modern interpretation of qualified immunity comes from the Supreme Court’s 1967 decision in the case of Pierson v. Ray. Considered amidst the often violent turmoil of the civil rights movement, the court’s ruling clarified that the purpose of qualified immunity was to protect police officers from frivolous lawsuits and to allow some leeway for mistakes made by officers while acting “in good faith” during incidents requiring split-second decisions in dangerous or life-threatening situations. For example, qualified immunity is often used to justify the use of deadly force by police as a last resort—when all lesser means of protecting their lives or the lives of others have failed or cannot be reasonably employed.

More recently, the increasing tendency of courts to apply qualified immunity as justification for the use of deadly force by police has resulted in criticism that the doctrine “has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights,” according to a 2020 Reuters report.

The Immunity Test: How is ‘Clearly Established’ Shown?

To overcome a qualified immunity defense in civil suits against police officers, plaintiffs must show that the officer violated a “clearly established” constitutional right or caselaw—a ruling by the U.S. Supreme Court or a federal appeals court in the same jurisdiction finding that the same actions taken by police under the same circumstances were illegal or unconstitutional. In determining whether or not a right was “clearly established,” the court must decide whether the police officer could have “reasonably” known his or her actions would violate the plaintiff’s rights.

This modern test for qualified immunity was established by the Supreme Court in its 1982 ruling in the case of Harlow v. Fitzgerald. Before this ruling, immunity was granted to government officials only if they believed “in good faith” that their actions had been legal. However, determining an official’s state of mind proved to be a difficult and subjective process, usually requiring a time-consuming and costly jury trial. As a result of Harlow v. Fitzgerald, the granting of qualified immunity no longer hinges on the official’s state of mind, but on whether or not a “reasonable person” in the official's position would have known their actions were legally justified.

The current requirements of the qualified immunity test make it difficult for plaintiffs to prevail in court. On February 11, 2020, for example, the U.S. Fifth Circuit Court of Appeals ruled that a Texas correctional officer who, “for no reason at all,” pepper-sprayed the face of an inmate locked in his cell was entitled to qualified immunity. Although the court held that the pepper-spraying had been “unnecessary and inconsistent with prison rules,” it granted the officer qualified immunity because similar cases cited involved prison guards who had unnecessarily beaten and tased inmates, rather than pepper-spraying them.

Absolute vs. Qualified Immunity   

While qualified immunity applies only to certain officials who violate established constitutional rights or federal law, absolute immunity offers complete protection from civil lawsuits and criminal prosecution, so long as the officials are “acting within the scope of their duties.” Absolute immunity applies only to federal government officials such as judges, members of Congress, and, often most controversially, the president of the United States. When these officials leave office, they lose the protection of absolute immunity.

In upholding the doctrine of absolute immunity, the Supreme Court has consistently reasoned that these officials must be able to carry out their responsibilities to the public without fear of interference from “potentially disabling threats of liability.” In 1982, for example, the Supreme Court, in the landmark case of Nixon v. Fitzgerald, ruled that U.S. presidents enjoy absolute immunity from civil suits for official acts undertaken while they are president. However, in 1997, the Supreme Court held in the case of Clinton v. Jones that presidents do not enjoy absolute immunity from civil suits involving acts taken before they became president. And in the 2020 Supreme Court decision in the case of Trump v. Vance, all nine justices agreed that presidents do not have absolute immunity from being required to respond to subpoenas in state criminal cases.

Examples of Qualified Immunity   

In 2013, three Fresno, California, police officers were accused of stealing $151,380 in cash and another $125,000 in rare coins while legally executing a search warrant in the home of two men suspected of (but never charged with) operating illegal gambling machines. In September 2019, the Ninth Circuit Court of Appeals ruled that the officers were entitled to qualified immunity because, at the time of the incident, there was no “clearly established law” holding that officers had violated the Fourth or Fourteenth Amendment when they allegedly stole property seized under a warrant.

In 2014, a Coffee County, Georgia, police officer, while trying to apprehend a criminal suspect, non-fatally shot a 10-year-old child while trying to shoot a non-threatening family dog. In July 2019, the Eleventh Circuit Court of Appeals ruled that because in no previous cases was it found to be unconstitutional for a police officer to fire a gun into a group of children without provocation, the officer was protected by qualified immunity.

In 2017, the Eighth Circuit Court of Appeals considered the 2012 death of Jerome Harrell, who had turned himself in to jail in St. Cloud, Minnesota, because he had outstanding traffic warrants. When correctional officers tried to remove Harrell from his cell the next morning, he resisted. The officers handcuffed him, shackled his legs, tased him twice, and pinned him to the floor face down for three minutes. Minutes later, Harrell died in what an autopsy described as a “sudden unexpected death during restraint.” In March 2017, the 8th U.S. Circuit Court of appeals ruled that the officers were entitled to qualified immunity because their use of force in restraining Harrell had been “objectively reasonable” under the circumstances.

Pros and Cons of Qualified Immunity

Already a subject of debate in the Black Lives Matter movement, the doctrine of qualified immunity came under even more intense criticism after the May 25, 2020 killing of George Floyd by a Minneapolis police officer. As most frequently cited in this ongoing debate, here are the main pros and cons of qualified immunity.

Pros

Advocates of the doctrine contend that through its protection of police officers, qualified immunity benefits the public in three main ways:

  • Free from the threat of being sued for their actions, police officers are far less likely to hesitate when required to make split-second life-or-death decisions.
  • Qualified immunity helps law enforcement agencies hire and retain qualified police officers because they do not have to work under the constant threat of being sued for carrying out their duties.
  • Qualified immunity prevents frivolous, groundless, and costly lawsuits against police officers.

Cons

Critics of qualified immunity counter with three ways in which it hinders the protection of civil rights and can endanger the public:

  • Without the ability to hold offending officers accountable for their actions, victims of brutality or harassment by police are generally unable to get relief in court. As a result, officers who commit brutality and harassment, as well as the agencies they work for, have less reason to improve their procedures and training to respect civil rights. This, they argue, jeopardizes the safety and justice of everyone.
  • Not only does qualified immunity reduce the chances that persons harmed by illegal or unconstitutional police actions will succeed in winning justice and compensation in civil rights lawsuits, but it also prevents many valid complaints from ever being heard in court.
  • Qualified immunity undermines constitutional law, the principles by which the governments of free people exercise their authority. As stated earlier, to overcome a qualified immunity defense, victims of police mistreatment must show that the offending officers had violated a “clearly established” law by citing a specific case involving the same circumstances and conduct. Critics say this has given the courts a convenient “way out” in resolving civil rights cases. Rather than analyzing and applying constitutionally supported doctrine in deciding whether a victim’s rights had been violated, courts can simply find that no past cases had been sufficiently similar to the case before them.

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