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Qualified Immunity Protects the Police

Updated: Oct 18, 2021

In 2019, Michael Vickers, a Coffee County, Georgia deputy sheriff, as well as several other police officers followed a suspect into the backyard of Amy Corbitt who was there with six children. The family was compliant when the officers demanded that they get on the ground. After the suspect was taken into custody, the family dog walked outside to the backyard, posing no immediate threat. Vickers fired his weapon at the dog but missed multiple times, accidentally shooting one of the children instead. The child sustained severe injuries to his knee and had to receive ongoing care from an orthopedic surgeon.

Corbitt filed suit against Vickers on behalf of herself and her child. The district court ruled against Vickers stating that it was unnecessary to fire a weapon at the dog since it did not pose a conceivable threat. However, the Eleventh Circuit Appeals Court reversed this decision, and Vickers received no punishment for shooting the child because the court ruled that he was entitled to qualified immunity.

What is Qualified Immunity?

Qualified immunity is a judicially created doctrine that shields public officials from civil liability in cases of deprivations of someone’s constitutional rights. Public officials are entitled to qualified immunity as long as “their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.” This means the plaintiff,

the person suing the official they believe violated their constitutional rights, must cite a previous court case that deemed a similar conduct unconstitutional.

The Supreme Court has found that qualified immunity balances two important interests, “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” The doctrine was created with the purpose of giving officers “breathing room to make reasonable but mistaken judgments about open legal questions.” However, with the recent discussions about police reform that have arisen, opponents of the legal doctrine claim that qualified immunity is just a method of allowing law enforcement officers to avoid accountability for their actions, which is why many have been looking back at the origins of the doctrine.

History of Qualified Immunity

In its interpretation of Section 1983 of the Civil Rights Act of 1871, also known as the Ku Klux Klan Act, the Supreme Court developed qualified immunity. Section 1983, as applied to the conduct of police officers, provides a legal remedy for people who are subjected to the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” While Section 1983 only applied to state law, Bivens v. Six Unknown Fed. Narcotics Agents extended its application to include violations of rights by federal law enforcement officers.

Qualified immunity was first created by the Supreme Court’s decision in Pierson v. Ray as a defense for officers who acted in “good faith.” However fifteen years later, in Harlow v. Fitzgerald, the court distinguished between qualified immunity and absolute immunity. Absolute immunity is rather self-explanatory. It provides complete immunity from civil liability for higher-level officials that “require greater protection than those with less complex discretionary responsibilities.” On the other hand, for other public officials, namely law enforcement officers, the court found qualified immunity necessary in order to balance “the importance of a damages remedy to protect the rights of citizens, but also the need to protect officials who are required to exercise discretion.”

Pursuant of allowing public officials to use their discretion without hesitation, came the rule that qualified immunity is guaranteed only if the officer’s conduct does not violate a “clearly established” constitutional right. This meant that having acted in good faith is no longer necessary for a police officer to receive qualified immunity. Due to this case, the only way around qualified immunity would be for the plaintiff to provide prior court cases with sufficiently similar facts that show that the officer’s misconduct was “clearly established.”

The Supreme Court has since refined and expanded the uses of qualified immunity. Another important decision that expanded the protections of the doctrine was Saucier v. Katz. The ruling of this case requires the decision of the application of qualified immunity to be made early in the trial. This allowed officers to avoid the costs of trial if qualified immunity was to apply to their case. The court also clarified that when deciding to grant qualified immunity, a court has to answer the following two questions: does the conduct amount to a constitutional violation and was there a prior court case with sufficiently similar facts that would have informed the defendant that their conduct was unconstitutional? However, 8 years later in Pearson v. Callahan, the Supreme Court decided that it was unnecessary for courts to answer the first question of whether the conduct was unconstitutional because they wanted lower courts to have more discretion when making the decision. This means that courts could grant qualified immunity to the official without even considering the constitutionality of the official’s conduct.

This is how officers are more protected since they can use their discretion in intense situations instead of hesitating due to fear of legal trouble. On the other hand, this is also how deputy sheriff Vickers was able to face no punishment after shooting the child accidentally with no immediate threat that would require firing a weapon. Since there were no prior court cases involving an officer accidentally shooting a child while intending to shoot something else, the deputy sheriff was granted qualified immunity.

The Current State of Qualified Immunity

Discussion of qualified immunity has recently grown considerably following the death of George Floyd and the subsequent Black Lives Matter protests. In this movement about police violence and accountability, the federal government and many state governments are considering limiting or abolishing the doctrine. The state of Colorado has already done so on June 19, 2020, when Colorado Gov. Jared Polis signed into law the Enhance Law Enforcement Integrity Act. This law enforcement reform bill, among many other reforms, created a civil action for people who have a constitutional right secured by the Colorado Constitution’s Bill of Rights infringed upon by a law enforcement officer, stating that “qualified immunity is not a defense to the civil action.” To be clear, this act only applies to Colorado’s state courts. Therefore, claims by Colorado residents in federal courts are still subject to qualified immunity. This makes Colorado the first and only state to ban qualified immunity as a defense for violating state constitutional rights.

Only Congress and the Supreme Court can change or abolish qualified immunity on the federal level. However, the Supreme Court announced that they were not going to be taking any cases related to qualified immunity anytime soon. Justice Clarence Thomas dissented this decision stating that the “qualified immunity doctrine appears to stray from the statutory text.” He argued that there was no basis for modern qualified immunity since “leading treatises from the second half of the 19th century and case law until the 1980s contain no support for this ‘clearly established law’ test.” However, the Court’s decision to refuse to hear any cases regarding qualified immunity in the next term moved the spotlight to Congress to address this legal doctrine.

In fact, Congress already has a couple bills in circulation addressing the doctrine. House Representative Justin Amash (L-MI) sponsored the End Qualified Immunity Act which would disallow qualified immunity as a defense against civil action by those who were deprived of their constitutional rights. A month later on July 1, 2020, Senators Markey (D-MA), Sanders (I-VT), and Warren (D-MA) introduced the bill in the Senate. “Qualified immunity makes it almost impossible for a victim of excessive force by a police officer to hold that officer accountable in a court of law. That must end,” said Senator Markey in a statement to CNN. This bill is still being discussed and has yet to be voted on. Furthermore, another bill, the George Floyd Justice in Policing Act, will also prohibit qualified immunity. However, it only focuses on law enforcement officers specifically, as opposed to any government official. This bill was passed by the House on June 25 but has yet to be passed in the Senate.

The most recent bill to be introduced is the Reforming Qualified Immunity Act. Senator Mike Braun (R-IN) introduced this bill to the Senate on June 23, 2020. Unlike the others, this bill does not completely abolish qualified immunity. Instead, it limits its use to cases where the officer’s conduct was “specifically authorized or required” by state or federal law or if a prior case ruled that the conduct was in fact constitutional. This eliminates the “clearly established” rule as a defense which is generally what opponents of the doctrine find most egregious.

The Arguments For and Against Qualified Immunity

With the rise in criticisms of the lack of police accountability, criticisms of qualified immunity has not only been shown in the writing of Congressional bills, but also in recent widespread discussion of the doctrine. Arguments from critics include that (1) qualified immunity allows officers to avoid accountability for constitutional violations, (2) the fear of unwarranted lawsuits have been exaggerated since the city pays for any settlements, and (3) the doctrine is applied inconsistently across courts and judges. However, arguments from defendants of qualified immunity include that (1) removing it would cause officers to be hesitant in situations requiring split-second decisions, (2) removing it would leave officials exposed to unwarranted lawsuits, and (3) officials need room to make mistakes and bad judgement calls in their line of work without fear of being sued. Despite the federal government and several state governments moving towards limiting or abolishing qualified immunity, its use as a defense is still a topic of intense debate.

Through Teen Lenses: What are your thoughts on qualified immunity?

“I believe that it should not be abolished since it will not allow for police officers to do their jobs to the best of their abilities. However I believe that qualified immunity should become more specified rather than a broad mushroom term used to protect police officers, thus more restrictions on it” Dylan Safai, 16, Rising Junior at Thomas S. Wootton High School, Rockville, MD
“It is reasonable to an extent since our officials should be better protected when doing risky jobs. But, high grade felonies are unacceptable since it sets a dangerous precedent on the lack of punishment. Additionally, it violates the Rule of Law our founders intended to use and included in our constitution.” Akash Raghu, 16, Rising Junior at Poolesville High School, Poolesville, MD
“Well I think qualified immunity can be helpful in some scenarios but harmful in others, and it depends on the situation. It could be harmful if police officers are arresting random people or using excessive force, violating people’s rights but still getting away with it. But it could also be helpful if officers are in important and dangerous situations and officers need the ability to make decisions without hesitation or fear. This is why it should not be abolished, but should be reviewed and changed tremendously to stop officers from avoiding much needed accountability.” Jay Kannan, 16, Rising Junior at Thomas S. Wootton High School, Rockville, MD
“This, like healthcare, true equity, government models, our election system, among many others, is an incredibly nuanced topic that has no “black and white” answer. If this were to be fixed, we’d need to solve other governmental issues first.” Anonymous, 16, Rising Junior at Thomas S. Wootton High School, Rockville, MD


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