The protests ignited by the killing of George Floyd have put a spotlight on the legal doctrine of qualified immunity. While qualified immunity is not at issue in the prosecution of former Minneapolis police officer Derek Chauvin and the three other former officers who face criminal charges stemming from Floyd’s death, it is one of many structural factors that make it difficult to hold police officers accountable for wrongdoing. While Lawfare contributors have occasionally discussed qualified immunity in the past, this post provides answers to some key questions that have arisen in light of the current national conversation. (Note that, while some states have developed parallel immunities for state law violations, this post addresses qualified immunity only in the context of claims brought under federal law.)
What Is Qualified Immunity?
Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations—like the right to be free from excessive police force—for money damages under federal law so long as the officials did not violate “clearly established” law. Both 42 U.S.C. § 1983—a statute originally passed to assist the government in combating Ku Klux Klan violence in the South after the Civil War—and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) allow individuals to sue government officials for money damages when they violate their constitutional rights. Section 1983 applies to state officials, while Bivens applies to federal officials. Because damages are often the only available remedy after a constitutional violation has occurred, suits for damages can be a crucial means of vindicating constitutional rights. When government officials are sued, qualified immunity functions as an affirmative defense they can raise, barring damages even if they committed unlawful acts. (Qualified immunity is not, however, a defense to claims for injunctive relief.)
The Supreme Court has generally traced qualified immunity back to the immunities available to government actors when officials were sued for common law torts during the 19th century. The basic idea is that when Congress enacted § 1983 in 1871, it incorporated the then-existing immunities into the statute, which the Supreme Court has also extended to Bivens suits. However, recent scholarship has called into question the Supreme Court’s account of the government immunities available in 1871, whether Congress intended them to be defenses to § 1983 claims, and the coherence of the relationship between the history and the modern doctrine.
How Does Qualified Immunity Work?
The landmark case of Harlow v. Fitzgerald (1982) articulated the modern formulation of qualified immunity that controls today. Jettisoning past precedent that examined the “subjective good faith” of the officer who committed the alleged violation, the Harlow court adopted a new test framed in “objective terms.” In Harlow, the court established that a plaintiff could overcome qualified immunity only by showing that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” While the court made clear that the new standard was intended to be more protective of government officials than its previous test, the court also stated that the standard “provide[d] no license to lawless conduct.” “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct,” the court wrote. But since Harlow, the court has applied the doctrine in three distinct ways that have made it more favorable to government defendants.
First, in order to show that the law was “clearly established,” the court has generally required plaintiffs to point to an already existing judicial decision, with substantially similar facts. As a result, as Julian Sanchez wrote succinctly on Twitter, “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.’” 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.” (The Supreme Court could decide to review the Ninth Circuit’s decision in this case as soon as Monday, June 8.)
Second, in Pearson v. Callahan (2009), the Supreme Court altered the way in which courts apply the doctrine in a manner that created a significant obstacle for civil rights plaintiffs. In an earlier decision, Saucier v. Katz (2001), the high court had held that when assessing a qualified immunity defense, courts must first determine whether there was a violation of a constitutional right and then move on to analyze whether the law was clearly established. But in Pearson, the justices reversed course, allowing courts to grant qualified immunity based only on the clearly established prong—and without ever determining if there was a constitutional violation. As Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit explained in a recent opinion, this creates a “Catch-22” for civil rights plaintiffs. Because courts often take what Willett called the “simpler” route of resolving a case based on the “clearly established” inquiry—rather than engaging in the “knotty constitutional inquiry” of whether the officials violated the Constitution—Pearson has resulted in fewer precedents finding constitutional violations. In turn, as Willett put it, “ No precedent = no clearly established law = no liability.” And according to a recent study conducted by Reuters: “Plaintiffs in excessive force cases against police have had a harder time getting past qualified immunity since [Pearson].”
Third, as Harvard Law professor and ACLU lawyer Scott Michelman notes in a recent article, the Supreme Court’s construct of a “reasonable officer” has shifted since Harlow to grant government officials greater deference. In a 1986 decision, the high court famously wrote that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Since then, the Supreme Court has stated that a defendant’s conduct is to be judged on the basis of “any reasonable officer” or “every reasonable official”—“thus implying,” as Michelman assesses, “that in order for a plaintiff to overcome qualified immunity, the right violated must be so clear that its violation in the plaintiff’s case would have been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable ‘reasonable officer.’”
What Is the Justification for Qualified Immunity?
In general terms, the Supreme Court has offered two basic justifications for the doctrine. The Harlow Court expressly noted that its decision sought to achieve a “balance” between allowing victims to hold officials accountable and minimizing “social costs” to “society as a whole.” Noting that “claims frequently run against the innocent, as well as the guilty,” the Harlow court identified four “social costs.” First, the doctrine aims to avoid “the expenses of litigation” by allowing district courts to dismiss suits against officers at early stages in the litigation—and without making fact-intensive inquiries into a particular officer’s motivations. Second, and relatedly, requiring officials to respond to such litigation can “diver[t] … official energy from pressing public issues.” Third, the court worried that the threat of litigation would “deter … able citizens from acceptance of public office.” And lastly—and most importantly—the court was concerned that the threat of lawsuits could chill lawful law enforcement conduct. The court wrote that “there is the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’” Along similar lines, in a more recent opinion, the Supreme Court explained: “[T]he doctrine of qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”
Also at the core of the Supreme Court’s jurisprudence is the contention that it would be unfair to hold government officials to constitutional rules they were not aware of at the time of the violation. The court first articulated this idea in a pre-Harlow decision, stating that “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.” Then in Harlow, the court wrote: “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” And a recent case described “the focus” of qualified immunity as “whether the officer had fair notice that her conduct was unlawful.”
What Are the Arguments Against Qualified Immunity?
As law professors Aaron Nielson and Christopher Walker discuss in a recent article, criticism of qualified immunity can generally be separated into “two fronts of attack”: first, that it’s bad law and, second, that it’s bad policy.
On the law, the most notable criticism has come from Justice Clarence Thomas. In a short solo opinion in a 2017 case, he urged the Supreme Court, “[i]n an appropriate case,” to “reconsider [its] qualified immunity jurisprudence.” As an originalist, Thomas believes that, in qualified immunity cases, the Supreme Court should ask “whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff's claim under § 1983.” But in Thomas’s view, the modern doctrine has strayed too far from the 19th century immunities. Rather than interpreting the statute, Thomas argued that the court’s qualified immunity jurisprudence “represent[s] precisely the sort of ‘free-wheeling policy choice[s]’” that are not within the providence of courts’ authority. In a recent article—which Thomas cited in his opinion—University of Chicago law professor William Baude explores and rejects the Supreme Court’s justification “that qualified immunity derives from a putative common-law rule that existed when Section 1983 was adopted.”
Another major legal criticism is that qualified immunity stunts the development of constitutional law. Especially after the Supreme Court’s Pearson decision (discussed above), as Judge Willett lamented, the consequence is that “[i]mportant constitutional questions go unanswered.” This is of special concern in cases involving new technologies or practices.
On the policy side, qualified immunity opponents contend that the Harlow Court got the balance wrong. Justice Sonia Sotomayor—who has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers”—captures the core of that critique in a recent opinion, which Justice Ruth Bader Ginsburg joined. As Sotomayor put it, qualified immunity “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.”
Such reasoning has generally attracted a diverse ideological coalition. Advocates of reforming qualified immunity on the political right tend to emphasize values of law enforcement “accountability” and defense of private property, while the arguments from the left focus on racial justice and broader police reform efforts—but there is nonetheless considerable overlap. Recently, a self-described “cross-ideological” group of organizations filed multiple petitions urging the Supreme Court to take up the issue of qualified immunity.
UCLA law professor Joanna Schwartz argues that qualified immunity does not even fulfill the policy goals it aims to achieve. In one article, Schwartz found that in a robust sample of cases, “governments paid approximately 99.98 percent of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement,” undermining the Supreme Court’s fears that defendant officers would have to bear the liability themselves. And in another article, she found that qualified immunity so rarely screens out claims before discovery and trial that it does not serve its intended goal of shielding government from the costs of litigation.
One more additional line of argument is offered by the MacArthur Justice Center’s Amir Ali and Emily Clark in a recent op-ed. They make the case that qualified immunity prevents “many [civil rights] claims [from being brought] in the first place.” Under a 1976 statute, Congress passed a law allowing lawyers who represent victims in civil rights actions to recover for their time. But since those fees are not available when a case is dismissed based on qualified immunity, they argue that “victims of civil rights violations may be less likely to find a lawyer who is willing to represent them and suits will not be brought.”
How and When Could Qualified Immunity Change?
The Supreme Court created qualified immunity and could of course overrule it, subject to its principles of stare decisis. At the court’s private conference on June 4, it considered eight petitions for the court to take up the issue of qualified immunity next term, meaning that the soonest a decision on the merits could come down would be next year. Two additional qualified immunity petitions were listed as “rescheduled,” implying they would be considered at a future conference. The petitions considered at the June 4 conference include two police shootings, a case where officers deployed a dog on a suspect who had already surrendered, and a case where police used a Taser on a man who died while in custody, among others. The Supreme Court could announce its decisions from the June 4 conference as early as the morning of Monday, June 8. There is no guarantee it will hear any of them, however—on May 18, the court declined to hear three qualified immunity cases.
In addition, Congress could reform qualified immunity legislatively since the doctrine is generally understood to be, as Michelman describes, “the product of statutory interpretation rather than constitutional elaboration.” Just this week, Libertarian Rep. Justin Amash and Democratic Rep. Ayanna Pressley introduced a bill in the House. That bill amends § 1983 to add the following language:
It shall not be a defense or immunity to any action brought under this section that the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when it was committed. Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the Constitution or laws were not clearly established at the time of their deprivation by the defendant, or that the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.