Qualified Immunity, or How the Law Shields Police

(Bloomberg) -- As the issue of U.S. policing reform moves past the death of George Floyd, one front-burner issue is qualified immunity. That’s a controversial legal doctrine invented by the Supreme Court that shields law enforcement and other officials from civil suits alleging violations of federal law. Legislation introduced by Democrats in Congress would eliminate that shield, but stiff opposition by Republicans probably assures it will live on.

1. What’s the issue with qualified immunity?

Since prosecutors have historically been hesitant to bring criminal charges against police officers, the protection from civil suits that qualified immunity confers has left many victims and their families with no means of legal redress. Even in the wake of Floyd’s death in 2020, the Supreme Court has rejected petitions that sought to topple the doctrine.

2. How did qualified immunity come to be?

It was meant to shield government officials from civil lawsuits that could hobble them in performing their duties. A federal law known as Section 1983, enacted after the Civil War, gave people the right to sue state officials for violating their rights. But in a 1967 decision arising from the arrest of clergy members who staged a sit-in at a segregated bus terminal in Jackson, Mississippi, the Supreme Court said the officers involved might be immune from a false-arrest suit if they had acted in “good faith,” or with the intention of following the law. The justices sent the case back to the lower court to make that determination. Qualified immunity was off on its long, winding road to the present, with opponents calling for it to be narrowed or abolished.

3. How does it work?

The doctrine isn’t just a shield against liability -- it protects police and other officials from having to go to trial in the first place. Since 1967, the Supreme Court has gone on to say that plaintiffs can’t advance their claims unless they show that officials violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” In practice, they have to find a prior case similar enough to theirs that the officials should have known their conduct was illegal. The high court has even held that trial courts can skip over the question of whether officials violated the law and instead simply find that no previous decision shows that they did.

4. Is it difficult to find such a prior case?

Very. Because the details of the past case often don’t quite match those of the case at hand, officials have gained immunity from allegations that they provided inadequate medical care, stole valuable property during a search or violated a person’s First Amendment rights. One petition to the Supreme Court, which was rejected by the justices, had billed itself as an “archetypal example” of the doctrine’s excesses. It involved a plaintiff who had a police dog set on him and was bitten while sitting on the ground with his hands up. The police won immunity because, in the prior case of unlawful police action, the plaintiff had been lying down. Those calling for reform say qualified immunity makes a case against the police almost impossible to pursue.

5. Is qualified immunity ever denied?

Sometimes. In 2017, a federal court in California denied immunity to a sheriff’s deputy who fatally shot a 13-year-old boy and said he mistook a toy gun for an AK-47 assault weapon. The Supreme Court declined to review the case.

The Reference Shelf

• Read Section 1983, which opened the door to “civil action for deprivation of rights,” and the 1967 Supreme Court decision that established the idea of immunity to such action.
• A QuickTake explainer on other ideas to calls to reshape policing in America.
• The Institute for Justice wants to end qualified immunity.
• Read a law-enforcement officer’s defense of qualified immunity.

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