What is qualified immunity?
In 2020, in the aftermath of George Floyd’s killing and the protests that followed, there was much discussion about the doctrine of qualified immunity and how it 1) emboldened police to commit civil rights violations and 2) allowed police to avoid any consequences for their violations.
Lately, I haven’t heard much talk about qualified immunity. It’s still here, it hasn’t been changed, and it is still being used as a shield for unlawful conduct by law enforcement, however.
In this article, we will discuss the doctrine of qualified immunity, including:
- What qualified immunity is,
- How qualified immunity works,
- The meaning of “clearly established rights,” and
- What we must do to end qualified immunity.
What is Qualified Immunity?
First, qualified immunity is a judicial doctrine – it is not a law that was passed by elected representatives, and you won’t find it in the US Code.
Qualified immunity shields government officials – often law enforcement, but it applies equally to other government defendants – from liability when they violate a person’s civil rights if the government actor did not violate “clearly established law.”
This means that there are no consequences for police misconduct when law enforcement does not follow the law unless the law they break is, in the court’s opinion (and then a jury’s opinion), “clearly established.”
And I mean no consequences. Police departments usually do not discipline officers for civil rights violations, and they will usually “stand behind their officers” and support them even when they have committed serious misconduct.
How Does Qualified Immunity Work?
The US Supreme Court created the doctrine of qualified immunity to protect police officers from liability in all but the most egregious of cases.
In Harlow v. Fitzgerald, the Court stated that a plaintiff can overcome the shield of qualified immunity only when an officer’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.”
Of course, the devil is in the details and the court’s subsequent interpretation of the doctrine.
One would think that a police officer, given the responsibility of enforcing the law, would reasonably be expected to know the law, and their departments would reasonably be expected to train their officers on the laws they are enforcing as well as the constitutional rights that they are expected to protect.
That is not how the Court has interpreted qualified immunity, however.
What Does “Clearly Established” Mean?
What does “clearly established” mean?
In West v. City of Caldwell, for example, the Ninth Circuit found that there was no violation of clearly established constitutional rights when police 1) obtained consent to search the plaintiff’s house by threatening to arrest her and then 2) fired tear gas canisters through her window before entering and searching for a suspect who was not even there.
The plaintiff and her children could not live in their home for two months because of the damage caused by the search which included broken windows and possessions saturated with tear gas.
To show that a law is “clearly established,” there must be an appellate opinion that has already been decided where the court found liability, and the opinion must have similar facts to the current case.
For example, if the courts have never found liability where police officers obtain consent through intimidation before destroying a person’s home with tear gas canisters, there is no remedy…
Pearson v. Callahan and the Judicially Created “Catch-22”
Logically, to find that a constitutional right is clearly established when there is not a pre-existing appellate opinion with the same facts, some court somewhere must say, “Yes. This officer violated this plaintiff’s constitutional rights. We find that the officer is shielded by qualified immunity. However, future officers are on notice that this is a civil rights violation.”
The Supreme Court effectively ended any new fact patterns that could result in police liability, no matter how egregious the police misconduct, in Pearson v. Callahan in 2009.
In Pearson, the Court held that courts must first decide whether there was a clearly established constitutional right, and then determine whether that right was violated. If there is not a clearly established constitutional right, the case is dismissed without a finding that there was a violation.
That means the next case, with the same horrible facts, will also be dismissed because there is still no judicial opinion finding a violation based on those facts…
How Do We End Qualified Immunity?
The doctrine of judicial immunity was created for one purpose – to shield law enforcement (and other government officials) from liability.
This is great if we want to live in a police state where the ends justify the means and the government can commit atrocities without accountability. If we prefer to live in a democracy where the police serve the public and where citizens have rights (and a means to enforce those rights), we must end the charade of qualified immunity.
How do we do that?
It won’t be through the courts – the reason we have the doctrine of qualified immunity in the first place is the courts will usually do everything possible to protect police officers.
When you file a civil rights lawsuit, you are asking the government (a judge) to find that the government (a police officer) has committed misconduct and to order the government (the police department or their insurance company) to pay you. It should be no surprise when the government rules in favor of the government…
The legislature must pass a law ending the judicially created doctrine of qualified immunity. Variations of this law have already been proposed in Congress but have gone nowhere.
We should be able to expect those who are tasked with enforcing the law to follow the law. And, if we have constitutional rights but no way to enforce those rights, we don’t really have constitutional rights, do we?
Questions About Qualified Immunity?
The Charleston civil rights attorneys at the Boles Law Firm can help you to determine liability, gather the evidence you will need in court, and recover the maximum compensation that you are entitled to for your injuries.
Call us at 843-576-5775 to schedule an appointment for a free consultation at our North Charleston or Walterboro offices or send us a message through our website.