Qualified Immunity

Putting aside for the time being the unfortunately-labeled effort to “defund the police,” we should definitely consider other steps that might be taken to return a measure of accountability to the nation’s police departments.

We might begin by repealing–or at least significantly narrowing–the doctrine of Qualified Immunity.

A bit of background: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now  known to practicing lawyers–especially civil rights lawyers– as Section 1983. It  gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

As Ruth Marcus recently wrote in a column for the Washington Post,  that’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine dubbed “qualified immunity.” As the judge in one recent case has noted, it might just as well be called “absolute immunity.”

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

 Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

A case from 1982, Harlow v. Fitzgerald established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, as one lawyer recently wrote, “the first person to litigate a specific harm is out of luck” since the “first time around, the right violated won’t be ‘clearly established.’” As a post on Lawfare explained,

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” Her criticism– in an opinion which Justice Ruth Bader Ginsburg joined– pointed out that the doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

It is past time for this doctrine to be dramatically limited. It is bad law and worse policy, and it insulates reckless police from the consequences of obviously wrongful behavior.


  1. Putting aside for the time being the unfortunately-labeled effort to “defund the police,” – if there’s one thing Democrats stink at and Republicans are masters of its branding and PR. If the Democrats had the cure for cancer they’d call it Life Ending Treatment or some such stupid thing.

  2. Mr. Dirk Gently has described it perfectly: Democrats fail at branding and PR. They have for years.

  3. Shiela, this is a very instructive and informed discussion. I tend to give law enforcement first benefit of any doubt. Application of new technology such as body cams worn by officers and mobile video capability of bystanders certainly contributes to the total body of evidence to establish greater accountability during litigation. I would not be attracted to a career in law enforcement with a compassion to protect and serve in today’s debate. I thank God for those who do and I stand by them until reason beyond doubt prevails.

  4. Well done. I’d go much farther and side with the Libertarians to eliminate all kinds of immunity shields baked into our laws and court precedents. It has long been a tool of crony-capitalism to help allay risks of being held liable for the externalities of barious businesses in all industries.

    One of the most egregious is Indiana’s Right To Farm law, which simply exempts farmers from any and all legal claims relating to damages caused by their businesses. It was written to provide cover to operators of large Confined Animal Feeding Operations (CAFO), which can House 10,000 or so hogs in one facility on a small patch of land. If it ruins the value of their neighbors’ property, or makes the air unbreathable, or leeches (dumps) animal waste into the local streams and aquifer, they cannot be held liable. The legal process established in Indiana to qualify medical malpractice suits has been effective in killing off thousands of frivolous suits and also putting limitations on financial rewards.

    Liability is very important to the regulation of orderly markets in a capitalist society and when it’s removed silly stuff happens. The best example of this is the exemption that all the massive social media platforms such as Facebook, Twitter and YouTube enjoy – relieving them of any financial liability from damages caused by misinformation and conspiracy “theories” that are Intentionally hyper-amplified in their platforms to maximize ad revenue. This law must be repealed and replaced with something similar to what Indiana uses for medical malpractice suits.

  5. I have almost no respect for the judicial systems in this country, including the police. If the warrior mentality drew mostly people of color to the police and they had a bad habit of killing white people, how quickly would “qualified immunity” be addressed?

    How many white people and politicians would be making speeches on Fox News?

    Patrick nailed it this morning since capitalism, our economic and political system, requires plenty of checks and balances. Almost none of them exist since they have been rolled back for decades.

    It’s interesting that Republicans want to force workers back to work during a pandemic and then grant asylum to employers in the event workers get infected by the novel virus. I am sure the democrats want to join this farcical policy.

  6. Why does every issue on this blog bring out those who feel the need to slam the Democratic party when we are trying to rid this country of the scourge of the Republican party? You are supporting Trump, Barr, McConnell, Nunes, Graham, Jordan, Giuliani and the Republican party by providing tacit support and immunity for them. Facebook is the place to post those messages if you feel the need; you will find readers and supporters there.

  7. Regarding the liability of the bigger social media platforms, what is the difference between someone passing along misinformation to your face and posting it on Facebook or Twitter? It is my responsibility to choose to sort out truth from fiction and then to follow through.

  8. I would agree with Ann @ 9:37. We have always had misinformation, twisting the truth, etc., the tabloids at the grocery stores were chock full of some B.S. prior to the internet.

    The judicial system in this country is firmly under the control of the 1%. As Todd wrote, “It’s interesting that Republicans want to force workers back to work during a pandemic and then grant asylum to employers in the event workers get infected by the novel virus.”

    Will OSHA or the Health Departments across the nation issue citations, fines, etc., to employers for violating cleanliness and hygiene standards??? The Proles can be forced to back to work, the employers and owners will terminate them if they refuse to report for work, even if the conditions are not safe.

  9. Is the “logic” of the law to protect tax payers in a community for having to pay for the sins of a dysfunctional public employee? I would think that would be a consideration if the law were ever to be re-written some how.

  10. Sheila refers to Section 1983 today. I have had experience in Section 1981 et seq from a district court to a U.S. Court of Appeals, and it did not go well. Whatever lofty position a legislature or the Congress sets forth, it’s judicial interpretation that rules the day. Qualified immunity is as a practical matter immunity, a dangerous gift to those with power.

    Common law tort liability has been much abused by bought legislatures, and the trend is less and less exposure to liability for those who finance the reelection of such legislatures. See, for instance, ordinary purchases of defective goods which obligate the buyer to forego suit in favor of an administrative determination of fault, if any, and damage awards, if any. Poisoned by a can of soup beans? Krogers will determine your rights and awards. Gotta keep them nasty trial lawyers at bay, you know. . .

  11. Dirk–you have that right. We are terrible at messaging–sometimes I think we overthink things and use excessive words when we really need to apply KISS–Keep It Simple Stupid

  12. Unfortunately, it will probably be decades, if ever, before the U.S. Supreme Court might have a majority of Justices willing to throw out the court created “qualified immunity” doctrine. I assume, however, Congress could amend Section 1983 of the 1871 law to make it explicit that “qualified immunity” isn’t an affirmative defense, or at the least, statutorily mandate a return to the pre-1982 “subjective good faith” standard that would give Plaintiffs at least a fighting chance of prevailing in the suit. So when will we have a Congress that would be willing to do that?

  13. I tend to agree Democrats (Liberals?) are generally not as good or as adept as the “Republicans” at PR and branding. “Republicans” — if those anachronistic creatures still walk the Earth — are much better at branding their “ideas” (if you can call them that) in such a way that it appears they aren’t as false, misleading or simply “Bat-Shit Crazy” as they are (perhaps one of the all time bests is “Pro-Life”). For some current brilliant PR work, just look at the anti-Trump commercials the Lincoln Project is airing (all done by Anti-Trump, former Republican Party consultants).

    Having said that, I don’t think the Democrats or Democratic Party, per se, are responsible for or can be blamed for the unfortunate (and easily twisted into “abolish the police”) “Defund the Police slogan/mantra. My admittedly quick research on the internet seems to indicate the “Defund the Police” slogan most likely originated in the Prison Reform and/or the early Black Lives Matter movements, although no one seems to know exactly where or who originated it.

    The people in those movements surely would be classified by others as being “Liberals” and they may or may not consider themselves to be “Democrats,” or members of the Democratic Party. But it is safe to assume it was not the “Democratic Party” as an entity that came up with that slogan. Unfortunately, Trump and his Trumpite sycophants are already and will continue to do their best to tattoo and brand Joe Biden and the other Democrats with it.

  14. The technology used by the police force has, until the Floyd George video (from a bystander with their phone) has NOT done anything to help with the blatant abuses and violence done on communities of color by the police. How many bad cops have been charged with outright murder with body cams running. I think you could count them easily on one hand. It’s a joke. You even have to get a court order even to make the police departments hand the body cam video over. That’s a joke as well.

    Growing up in the city, having friends from the inner city, for 60 years this country’s so-called judicial and police systems are a joke. Anyone who says otherwise is a fool or willfully ignorant.

    For gods sake, we have the highest public officials in this country get away with complicit murder (Covid inaction), perjury, corruption and other illegal activities every damn day in broad daylight in front of cable TV cameras and I-phone cameras and GET AWAY WITH IT.

    And we’re worried about cop immunity??? LOL!!!

  15. https://www.akpress.org/our-enemies-in-blue.html

    Above book tells the truth about our militarized police. From the author:

    “The main argument of the book is that the core function of the police is NOT to fight crime, to protect life and property, or even to enforce the law, but instead to preserve existing social inequalities, especially those based on race and class.

    In making that case, I looked at the origins and development of the institution, the centrality of violence in police work, and the persistent bias in the law and its enforcement. I also forwarded a number of contentious (and at the time, almost heretical) claims: that modern policing originated not in the New England town watch, but in the Southern slave patrols — militia groups responsible for enforcing pass laws and preventing uprisings; that cops are not workers and police unions are not labor unions; that community policing is not a program for progress but a counterinsurgency strategy; and that the institution of policing must be abolished rather than reformed. At the time, none of those were accepted positions, even among many strident critics of the police. They remain today minority views, but it has become a substantial minority.

    These points have entered the mainstream discourse: Historians increasingly acknowledge the significance of slave patrols. Unions are calling into question the legitimacy of police unions, and even breaking ties with them. The military literature has become increasingly explicit in comparing community policing with counterinsurgency. And even mainstream politicians find themselves debating the question, not merely of reforming the police department, but of defunding or disbanding it.”

  16. When I first head about Qualified Immunity as BLM protests really heated up, I thought this is one really basic and positive step we as American could make, and that is to have Congress make legislative changes to this over-stepping interpretation of what should have been a reasonable law. As I read the history behind the rulings, it became clear that this was more of backlash to the 1967 civil rights act. I wrote letters to my US Representatives. I got a great response from Andre Carson (D) (and Black), but condescending letters from my two Republican Senators. You could tell that the Republican caucus had already formulated a canned response to this issue and it would be DOA in the Senate no matter what happened in the House.

    I still believe that long term, the most important thing that could come out of the current BLM protests is a legislative change to the definition of Qualified Immunity, but it a technical and nuanced issue hard to sum up in a sound bite and I think it will get lost in the long term.

    Maybe the sound bite “Defund the Police” sums it up, but not in the way people think, by suing them until the police are bled dry.

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