Qualified Immunity—The Ultimate Circular Legal Doctrine

By: Katie Wotherspoon

In the wake of numerous murders of Black Americans at the hands of law enforcement, a nationwide debate exploded regarding structural racism and police accountability—the legal doctrine of qualified immunity in particular, amassed much of the scrutiny. The killings not only sparked national outrage they were also met with vehement protests in all fifty states and countries around the world. Lawmakers, local community leaders, and even Supreme Court Justices publicly questioned the validity of the qualified immunity doctrine and some suggest its traditional use may be coming to an end. Although the slow-changing judiciary recently declined to hear several qualified immunity cases, the movement of change has already begun in some parts of the country.

Qualified immunity is a legal doctrine that protects various government officials by excusing them from liability for money damages for violating an individual’s constitutional rights.[1] Examples of a law enforcement officer violating an individual’s constitutional rights include the use of excessive police force, unlawful arrests, and illegal searches. Qualified immunity, though it extends beyond law enforcement, allows police officers to violate constitutional rights with virtual impunity.[2] To hold police officers accountable, courts must establish whether “the objective reasonableness of an official’s conduct, as measured by clearly established law” denote a violation of an individual’s constitutional right.[3] In determining whether to grant qualified immunity the court must also consider whether the violation of constitutional rights was clearly established at the time of the alleged misconduct and that the officer would have known this was a violation.[4] Yet, because many courts grant qualified immunity, issues arise for courts when determining what is “clearly established” case law since there are few cases in which the court holds qualified immunity does not apply.[5]

During the Reconstructionist era, Black Americans were terrorized by the Ku Klux Klan, prompting Congress to enact the Civil Rights Act of 1871, which passed shortly after the Civil War.[6] Included in the Act was 42 U.S.C. § 1983, which permitted lawsuits by citizens against public officials who violated their constitutional rights.[7] The language of the statute plainly stated, every state official who causes the deprivation of guaranteed constitutional rights will be held liable to the injured party.[8] However, over the last fifty years qualified immunity has frustrated the purpose of section 1983, because it allows judges to decide, as a matter of law, whether or not to grant immunity. In other words, the judge decides if qualified immunity applies, which decides the case thereby depriving individuals a jury trial. Consequently, legal scholars and some members of the judiciary have questioned the application of the qualified immunity doctrine.[9]

The Supreme Court traced qualified immunity back to the protections afforded to government officials who were sued for common law torts in the 19th century.[10] Before 1982, the Supreme Court granted qualified immunity to government officials based on two criteria: first the subjective, good faith belief the official’s conduct was lawful, and second that the conduct was objectively reasonable.[11] However, after the Harlow v. Fitzgerald decision of 1982 the criteria changed, creating the standard as we understand it today. The Court held officials will generally be shielded from liability for civil damages as long as their conduct does not violate clearly established statutory law or constitutional rights that a reasonable person would have known existed.[12] The Harlow decision changed the standard in an effort to avoid excessive disruption of the government, and stated government officials will largely be safeguarded from being held liable.[13] Additionally, the Court said the standard that utilized the official’s subjective good faith belief their actions were lawful, is incompatible with the admonition that insubstantial claims should not proceed to trial and waste judicial resources, because determining the facts regarding the officer’s knowledge is one for the jury to determine.[14] The Court implemented “the objective legal reasonableness of an official’s acts.”[15] It should be noted the legal standard for the reasonable officer was later created by the Supreme Court case, Graham v. Connor in 1989, which presented a non-exhaustive list of factors for determining whether the officer’s use of force is objectively reasonable.[16] Although it relates to the reasonable officer standard used today, the Graham opinion is a separate issue and not the topic of this piece.

One of the most striking issues regarding qualified immunity, other than the disregard for civil rights, is the way in which lower courts have stayed stagnant on such a persistent problem. The standard created by Harlow suggests the judiciary should not waste judicial resources, yet the Court noted whether the officer had knowledge of the constitutional violation is one of fact and should be determined by the jury.[17] Yet, the Court held government officials performing discretionary functions are generally shielded from liability for civil damages as long as the conduct does not violate clearly established law.[18] This requires the victim to designate “clearly established” law, meaning they must point to a previously decided case that involves similar conduct and context.[19] However, if courts continue to grant qualified immunity, victims will be unable to point to clearly established case law because the case will have been dismissed due to qualified immunity.[20] Thus, courts must make decisions to create clearly established law, so cases of similar context and conduct will be available for jurisdictions awaiting a precedent to pull from.

One explanation for the inaction of the lower courts regarding qualified immunity cases may relate to the fact the Supreme Court gives these cases “pride of place on the Court’s docket.”[21] In other words, the Court holds cases involving qualified immunity to higher esteem than other cases. The Court exercises jurisdiction over qualified immunity more often by allowing these cases to satisfy certiorari criteria where it otherwise would not.[22] The Court also reverses lower court decisions on qualified immunity at a higher rate than other cases, the purpose for this—to ensure lower courts do not improperly deny immunity.[23] The Court’s seizure of authority sends a strong message to lower courts and elevates these cases to a level unlike any other, except for state cases regarding habeas petitions.[24]

Qualified immunity is an increasingly significant topic because the legal doctrine makes it exceptionally difficult to hold police officers accountable for violating constitutional rights. This is particularly problematic for citizens, especially when the most vulnerable populations are disproportionately targeted by law enforcement. Beginning in 2015, The Washington Post created a five-year log that revealed although Black Americans account for less than thirteen percent of the population, they are more than twice as likely to be killed by police.[25] This intensifies the need to rectify the qualified immunity doctrine, specifically for minority communities who are more likely to be killed by police but are less likely to receive justice from the judicial system. Legal scholars identified three central ways qualified immunity makes it nearly impossible for individuals to recover once their constitutional rights have been violated.

First, qualified immunity terminates judicial relief that holds law enforcement officers accountable, therefore, police officers who commit brutality and harassment have very little incentive to improve their practices.[26] This vitiates the American ideal of justice for all, especially in lower income communities and predominantly minority communities who are already vulnerable to heavy policing.[27]

Second, the doctrine of qualified immunity does not simply reduce the chance an individual will succeed in a civil rights claim, it means many lawsuits are never brought to court in the first place.[28] In 1976, a civil rights law was passed that incentivized lawyers who represent victims in successful civil rights claims by guaranteeing recovery for attorney time if they won.[29] But when a case is dismissed based on qualified immunity the attorneys do not recover fees for their time because the victim lost. Therefore, individuals who are victims of civil rights violations may be less likely to find an attorney who will represent them because there is a high risk the case will be dismissed based on qualified immunity.

Finally, qualified immunity halts constitutional law.[30] In order for attorneys to overcome the defense of qualified immunity, they must show law enforcement violated clearly established law. Yet, because many cases cannot point to another case of similar conduct and context, the court can quickly and easily dismiss the case by granting qualified immunity.[31] Rather than analyze and review cases utilizing constitutional doctrines to determine a violation of rights, the court can state there is no case sufficiently similar, thus qualified immunity applies because there is no binding or persuasive authority on the issue at hand.[32] For example, the Ninth Circuit Court of Appeals recently held officers who stole almost $225,000 in property were immune from liability because there was no clearly established case law governing these particular circumstances.[33] The Ninth Circuit granted qualified immunity because the issue of whether officers could steal property while executing a warrant was not clearly determined to be a violation of the Fourth Amendment among other circuits.[34] Five other circuits addressed similar questions and reached different results.[35] Thus, in the absence of any cases of controlling authority, or consensus of cases of persuasive authority regarding the constitutional question, the court concluded the law was not clearly established at the time of the incident.[36]

So how does the legal community and society as a whole combat the ultimate circular logic of the qualified immunity doctrine? The Supreme Court has recently refused to hear eight qualified immunity cases this term.[37] However some Supreme Court Justices, such as Justice Clarence Thomas, have questioned the doctrine’s historical legitimacy.[38] Justice Thomas noted the qualified immunity doctrine strays from statutory text, suggesting from the second half of the 19th century up until the 1980s, there is no support for the clearly established legal requirement.[39] Additionally, some members of Congress have taken serious steps to change to the use of qualified immunity in the court room. Representative Justin Amash of Michigan, the only Libertarian Member of Congress, introduced a bill titled the “End Qualified Immunity Act,” which received tri-partisan support.[40] The purpose of the proposed Act is to require government officials to obey the Constitution, just as citizens are required to obey the law.[41]

Greater steps are being taken at the state level. Colorado passed a new law that allows its citizens to sue police officers who violate Colorado’s Constitution in state court.[42] The new law explicitly states “qualified immunity is not a defense to liability.”[43] Prior to the passage of the new law in Colorado, a few other states already had additional limitations on the use of qualified immunity in state courts.[44] In 2002, for instance, the Montana Supreme Court rejected the idea of adopting qualified immunity outright because it would have been inconsistent with its constitutional requirements regarding a speedy remedy for claims that involve injury of person, property, or character.[45]

Although this is especially significant because more states may follow suit, the new Colorado law does not completely eliminate qualified immunity claims in the state. For Colorado citizens who file claims in federal court under section 1983, which allows citizens to sue government officials who violate their constitutional rights, qualified immunity can still be used as defense because qualified immunity is a federal statutory matter.[46] Nevertheless, for a state to enact legislation that remedies the violation of constitutional rights by government officials is movement in right direction. Colorado Governor Jared Polis identified institutionalized racism as a fundamental reason for creating the new law.[47] He stated he is optimistic this reform will encourage a more evidenced-based approach when courts decide cases involving police brutality and misconduct in hopes it will also protect civil rights and help restore trust between local communities and law enforcement.[48]

While shifting community viewpoints and new state legislation are a momentous first step to creating change, there is still a long way to go in order to dismantle the legal doctrine of qualified immunity. Many believe society needs to hear from the Supreme Court before national judicial change is made, however, one should not discount the nationwide unrest and fervor for change present in the protests across all fifty states. It is inspiring to see at least one state legislature listen the voices of its citizens—it is up to the other forty-nine to follow in its foot-steps and create a more just future for the generations that follow.


[1] Nathaniel Sobel, What Is Qualified Immunity, and What Does It Have to Do With Police Reform? Lawfare (June 6, 2020), https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform.

[2] Amir H. Ali and Emily Clark, Qualified Immunity: Explained, The Appeal (June 20, 2019), https://theappeal.org/qualified-immunity-explained/.

[3] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[4] Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014).

[5] Ali and Clark, supra.

[6] Ali and Clark, supra.

[7] Nick Sibilla, Supreme Court Refuses to Hear Challenges to Qualified Immunity, Only Clarence Thomas Dissents, Forbes (June 15, 2020), https://www.forbes.com/sites/nicksibilla/2020/06/15/supreme-court-refuses-to-hear-challenges-to-qualified-immunity-only-clarence-thomas-dissents/#52b869317fad.

[8] Ali and Clark, supra.

[9] Sobel, supra; Sibilla, supra.

[10] Sobel, supra.

[11] Developments in the Law, State Action and the Public/Private Distinction, 123 Harvard L. Rev. 1248, 1267 (2010).

[12] Harlow, 457 U.S. at 818.

[13] Id.

[14] Id.

[15] Id. at 819.

[16] Graham v. Conner, 409 U.S. 386, 388 (1989).

[17] Harlow, 457 U.S. at 815.

[18] Id. at 817.

[19] Id. at 818.

[20] Ali and Clark, supra.

[21] William Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 48 (2018).

[22] Id.

[23] Id.

[24] Id.

[25] The Washington Post, 999 people have been shot and killed by police in the past year, (July 24, 2020), https://www.washingtonpost.com/graphics/investigations/police-shootings-database/.

[26] Ali and Clark, supra.

[27] Ali and Clark, supra.

[28] Ali and Clark, supra.

[29] Ali and Clark, supra.

[30] Ali and Clark, supra.

[31] Ali and Clark, supra.

[32] Ali and Clark, supra.

[33] Jessop v. City of Fresno, 936 F.3d 937, 943 (9th Cir. 2018).

[34] Id. at 941.

[35] Id.

[36] Id. at 942.

[37] Sibilla, supra.

[38] Sibilla, supra.

[39] Sibilla, supra.

[40] Sibilla, supra.; End Qualified Immunity Act, H.R. 7085, 116th Cong. (2019-2020).

[41] Sibilla, supra.

[42] Nick Sibilla Colorado Passes Landmark Law Against Qualified Immunity, Creates New Way to Protect Civil Rights, Forbes (June 21, 2020), https://www.forbes.com/sites/nicksibilla/2020/06/21/colorado-passes-landmark-law-against-qualified-immunity-creates-new-way-to-protect-civil-rights/#5169319a378a.

[43] Sibilla, Colorado, supra.; Law Enforcement Integrity and Accountability Act, S.B. 20-217, 72nd Gen. Assemb., Reg. Sess. §3(b) (2020).

[44] Sibilla Colorado, supra.

[45] Sibilla Colorado, supra.

[46] Sibilla Colorado, supra.

[47] Sibilla Colorado, supra.

[48] Sibilla Colorado, supra.

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