The History Of Qualified Immunity Becoming Law

The United States' qualified immunity is a judicial doctrine created by the Supreme Court in 1967. It protects government actors from lawsuits alleging violation of a plaintiff's rights, unless the officials violated a clearly established statutory or constitutional right. The Supreme Court introduced qualified immunity to prevent a chilling effect where government actors may be hesitant to take action out of fear of litigation over frivolous lawsuits.

The Supreme Court's rationale for qualified immunity

In the United States, qualified immunity is a judicial doctrine created by the Supreme Court to protect government actors from personal liability for actions carried out in their official capacity. This immunity is not applicable if the actions in question violate "clearly established" statutory laws or constitutional rights.

The Supreme Court's justification for qualified immunity was first outlined in Pierson v. Ray (1967), a case litigated during the civil rights movement. The Court argued that qualified immunity was necessary to protect government actors from financial burdens when acting in good faith in legally ambiguous situations. The Court further asserted that without this immunity, government employees might be reluctant to carry out their duties, and able citizens might be deterred from accepting public office.

In Harlow v. Fitzgerald (1982), the Supreme Court established the modern test for qualified immunity. Prior to this case, the Court granted immunity to government officials if they believed in good faith that their conduct was lawful and if their conduct was objectively reasonable. However, determining an official's subjective state of mind often required a trial. To address this concern, the Court modified the rule, stating that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

In summary, the Supreme Court's rationale for qualified immunity centres on the belief that government actors should be protected from frivolous litigation and financial liability when acting in good faith or making reasonable mistakes. The Court introduced this doctrine to encourage government officials to carry out their duties without fear of legal repercussions for honest errors.

The history of qualified immunity

However, the concept of qualified immunity was introduced by the Supreme Court in 1967 in the case of Pierson v. Ray. The Court created this doctrine to protect government employees from frivolous lawsuits and financial liability when acting in good faith in unclear legal situations. This marked a significant shift in the interpretation of Section 1983, which had previously been used to hold government officials accountable for civil rights violations.

Over time, the scope of qualified immunity has been expanded and reinforced by the Supreme Court. In 1982, the Court decided Harlow v. Fitzgerald, which extended qualified immunity to all government workers and eliminated the requirement that officers must have acted in good faith. This decision solidified qualified immunity as a judicial doctrine, shielding officials from liability unless they violated "clearly established" statutory or constitutional rights.

The Court further refined the doctrine in cases such as Saucier v. Katz (2001) and Pearson v. Callahan (2009), granting lower courts more discretion in applying qualified immunity. Despite criticism and calls for reform, qualified immunity continues to play a significant role in shaping police accountability and civil rights litigation in the United States.

Qualified immunity and police brutality

In the United States, qualified immunity is a judicial doctrine that protects government officials from lawsuits alleging that they violated a plaintiff's rights. This immunity only applies when officials do not violate "clearly established" statutory or constitutional rights. The doctrine was created by the Supreme Court in 1967, in the case of Pierson v. Ray, to protect police officers from financial liability after they arrested 15 clergy members for breaching the peace.

Qualified immunity has been criticised for allowing police brutality to go unpunished and denying victims their constitutional rights. It has been described by Justice Sonia Sotomayor as creating "an absolute shield" for police officers accused of using excessive force. This "shoot first, think later" approach to policing disproportionately harms Black people, who are killed by police at more than three times the rate of white people.

A 2020 Reuters report concluded that the Supreme Court has built qualified immunity into an "often insurmountable police defence". The report reviewed over 200 cases involving excessive force by police since 2007 and found that plaintiffs have struggled to get their cases past the qualified immunity stage since the 2009 Pearson v. Callahan decision. This ruling gave lower courts more discretion in whether to apply the two-step inquiry of first, whether the official's actions violated the constitutional rights of the plaintiff, and second, whether those rights were clearly established at the time of the incident.

In practice, this means that unless there is a previous case with nearly identical facts on the record, officials can violate a person's rights without being held personally responsible. For example, in 2014, Nashville police officers released a police dog on a suspect who had surrendered and was sitting with his hands raised. The man sued for compensation, relying on a previous decision that deemed it a violation of a person's rights to release a police dog on someone who had surrendered by lying down. However, the court held that this precedent did not "clearly establish" that it was unconstitutional to release a dog on a suspect who had surrendered by sitting. As a result, the officers were granted immunity and the injured man was left without compensation.

Qualified immunity has been used in many cases to protect officials who have engaged in misconduct, including fatal shootings, police brutality, stealing, and sexual misconduct. Critics argue that it allows law enforcement and other government officials to repeatedly violate constitutional rights without consequence and encourages further misconduct by signalling that officials are above the law.

How to abolish or reform qualified immunity

Qualified immunity is a judicial doctrine created by the Supreme Court that protects government actors for actions taken while acting in their official capacity unless they violate "clearly established" statutory laws or constitutional rights. The doctrine has been criticised for making it excessively difficult to sue public officials for misconduct and allowing police brutality to go unpunished.

There are several ways to abolish or reform qualified immunity:

• Supreme Court intervention: The Supreme Court has the authority to end the doctrine of qualified immunity that it created.
• Congressional legislation: Congress also has the authority to end the doctrine. It can simply amend 42 U.S.C. § 1983 to remove qualified immunity as a defence for police officers who engage in civil rights violations. The George Floyd Justice in Policing Act, for example, aimed to abolish qualified immunity.
• State and local legislation: While states and local jurisdictions cannot end qualified immunity because it is enshrined in federal law, they can pass legislation that ends qualified immunity at the state level and that limits the harms caused by federal qualified immunity. Colorado, New Mexico, and New York City are examples of places that have taken steps to do this.

Criticisms of qualified immunity

Qualified immunity is a legal doctrine that has been criticised for making it excessively difficult to sue public officials for misconduct. This is largely due to the "clearly established law" test, which requires a clear judicial precedent that establishes the behaviour as unlawful. Critics argue that the difficulty of finding an exact match in both law and precedent gives government officials undue latitude for lawless conduct in new or unusual situations.

The "clearly established" standard has also been criticised for discouraging or delaying the establishment of clear rules, even for common circumstances. The first litigant to bring a case against an official under a given set of facts is likely to lose because there is as yet no clearly established standard. Furthermore, even if a case is brought and carried to judgment, there is no certainty that a clear and generally applicable legal standard will be established.

Another criticism of qualified immunity is that it allows police brutality to go unpunished. Supreme Court Justice Sonia Sotomayor has noted a "disturbing trend" of siding with police officers using excessive force with qualified immunity, describing it as "sanctioning a 'shoot first, think later' approach to policing". A 2020 Reuters report concurred with Sotomayor, concluding that "the Supreme Court has built qualified immunity into an often insurmountable police defence by intervening in cases mostly to favour the police".

Qualified immunity has also been criticised for amounting to "gutting" Section 1983 of the United States Code, which allows any citizen to sue a public official who deprives them "of any rights, privileges, or immunities secured by the Constitution and laws". Critics argue that the adoption of qualified immunity in federal law amounts to judicial activism, as the legal doctrine has little basis in written law.

In a 2017 Yale Law Journal paper titled "How Qualified Immunity Fails", UCLA law professor Joanna C. Schwartz examined 1,183 Section 1983 cases and found that it was being invoked primarily when it should not have been and was therefore being ignored or dismissed frequently. Her conclusion was that it is ineffective for its stated goals and should be replaced by other mechanisms.

Frequently asked questions