In 2020, protests against police brutality, spurred by the killings of George Floyd and Breonna Taylor, swept the U.S. Since last summer, even more names were added to the list of those killed or severely harmed by police. These events led to calls and action on a wide variety of reforms.
Qualified immunity is one doctrine that faces scrutiny. While several states and the Supreme Court have reduced qualified immunity’s influence, more change is needed.
The Supreme Court established qualified immunity in 1967, through Pierson v. Ray. The Court stated 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.” The Court refined the doctrine in 1987, via the Harlow v. Fitzgerald decision, ruling that qualified immunity should be decided purely on an objective basis. Qualified immunity applies to many local, state, and federal officials; however, this piece focuses on qualified immunity associated with law enforcement.
According to law professor Joanna C. Schwartz, qualified immunity was created to allow “breathing room” for public officials to fulfill their duties without an excessive fear of lawsuits and prevent citizens from not accepting public office due to this fear. Existing empirical data undercuts these justifications. Schwartz’s 2017 study of qualified immudnity cases involving law enforcement from 2011 to 2012 in five court districts found that, “just 3.9% of the cases in which [qualified immunity] could be raised were dismissed.” In a 2020 study, Schwartz reported that “[a]ttorneys do not reliably decline cases … on qualified immunity grounds.”
Qualified immunity is stronger than it appears. Alexander Reinert, a professor at Cardozo Law School, reported in 2021 that at appellate courts, “[Qualified immunity] was … granted in about 60% of the decisions.” The effects of qualified immunity have traditionally been stronger in the Supreme Court. Will Baude, a professor at the University of Chicago, reported in 2018 that between 1982 and 2017, the Supreme Court only denied qualified immunity in two out of 32 cases. The Court has strengthened the doctrine over time.
The current form of qualified immunity faces cross-ideological, if not bipartisan, criticism. First, qualified immunity could be illegal. Second, qualified immunity can shut down worthy lawsuits. Third, while qualified immunity only applies to civil suits, since police are rarely successfully prosecuted, civil suits are frequently the only way for officers to face consequences for unwarranted actions. Fourth, qualified immunity adds unneeded complications and expense to litigation and can force plaintiffs to wait longer to go to trial. Fifth, qualified immunity, especially the Supreme Court’s embrace of it, as Supreme Court Justice Sonia Sotomayor wrote in 2015, “[sanctions] a “shoot first, think later” approach to policing.”
Qualified immunity is not inherently misguided. Police play a key role that involves split second decisions where the law is blurry. Some immunity should be available. However, qualified immunity currently overextends this protection. Some possible fixes for this overextension include requiring defendants to show “good faith,” moving to a “clearly constitutional” standard and/or mandating that courts explain when and why they decide only if the accused conduct was clearly established, not whether it was reasonable. These proposals would provide some protection for police officers from lawsuits, while increasing police accountability.
Over the last year, several states have passed bills blocking qualified immunity as a defense in lawsuits. At the federal level, the House passed a bill banning qualified immunity. A recent law review article suggests that the Supreme Court might end “comparative immunity”, where officers get qualified immunity because other officers had gotten qualified immunity for less severe constitutional violations. However, reform efforts appear to have stalled.
If qualified immunity were modified, the overwhelming indemnification of police officers by municipalities could increase taxpayers burdens, while not changing officers behavior. Deborah Ramirez of Northeastern University advocates for ending indemnification of police officers, along with requiring them to carry personal liability insurance, with the municipality paying the average premium. The insurance company could raise or lower the premium based on officers’ level of behavioral risk, and officers would either pay or receive the difference in premiums.
Police do, can and should play a vital role in protecting communities. However, when police abuse their power, there should be accountability. While reforming qualified immunity will not remove all barriers to police accountability, the recent reforms trend in the right direction, even though some go too far. Any attempts to increase or decrease police accountability should also focus on what role police play in society. If police are primarily trained to use to force, and are sent into situations that do not require such force, harmful incidents will be more likely to occur. Even if one accepts the current conception of policing, one should consider if every “crime” should be a “crime.”
Blaine Ravert of Columbia is a sophomore at Westminster College in Fulton, majoring in political science and philosophy.