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Qualified Immunity: How it works

Updated: Jul 8, 2021

In the aftermath of George Floyd’s murder, cries for police reform – including ending qualified immunity – reverberated across the country. For decades, courts have used qualified immunity to protect officers from charges and disregard the rights of civilians – especially those of black and brown people, who are disproportionate victims of police brutality.


In Amir H. Ali and Emily Clark’s article “Qualified Immunity: Explained,” the writers detail a woman’s horrifying arrest and the court’s subsequent dismissal of her. While Malaika Brooks was driving her son to school, Seattle police pulled her over for speeding. After refusing to sign the ticket they gave her – “believing that she had been wrongly pulled over and thinking, mistakenly, that her signature would be an admission of guilt” – the officers threatened to throw her in jail and ordered her arrest. Even though Brooks was seven-months pregnant, the officers twisted Brooks’ arm behind her back and tased her three times before dragging her into the street and handcuffing her.


When Brooks sued the officers to hold them accountable for their actions, six federal judges “agreed that the officers’ use of severe force absent any threat to their safety violated the U.S. Constitution.” But the judges also dismissed her case, citing qualified immunity.


In another case, the Fifth Court of Appeals used qualified immunity to determine that “a prison guard who pepper-sprayed an inmate ‘for no reason’ did not violate a clearly-established right because similar cited cases involved law enforcement officials who had hit and tased inmates for no reason, rather than pepper spraying them for no reason.”


Qualified immunity is a legal doctrine that shields local and state officials who have committed constitutional violations – ex: wielding excessive police force – from individual liability, as long as they have not violated a “clearly established” law.


Despite that civil rights laws were put in place to protect civilians’ constitutional rights, the invention of qualified immunity has made it difficult for civilians to win civil rights cases.


In Section 1983 of the Civil Rights Act of 1871, Congress declared that if a public official violated a person’s rights – through an unwarranted arrest, an illegal search, police brutality – they would be able to be held financially accountable for their actions.


While the Supreme Court created qualified immunity in 1967 as a “modest exception for public officials who had acted in ‘good faith’ and believed that their conduct was authorized by law,”[1] the court later adopted a more objective take on the doctrine and declared that laws must be “clearly established” for plaintiffs to bring charges to officials (including police officers). For decades, the Supreme Court has used qualified immunity to favor government defendants:


  • · To prove that a law is “clearly established,” courts require plaintiffs to point to an already existing judicial decision, with substantially similar facts. As Judge Don Willet of the U.S. Court of Appeals for the Fifth Circuit wrote in a recent opinion, “No precedent = no clearly established law = no liability.” [2]

  • · Although qualified immunity once called for an assessment of whether or not the official had violated a constitutional right, courts now only have to examine a case based on “clearly established” conditions and disregard if officers have violated the Constitution.

  • · Qualified immunity has also lowered the standards for officer conduct. While it had once only protected officers “acting in good faith,” it now shields “all but the plainly incompetent or those who knowingly violate the law.” (And as Harvard Law professor and ACLU lawyer Scott Michelman explained in a recent article, “in order for a plaintiff to overcome qualified immunity, the right violated must be so clear that the plaintiff’s case would have been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable ‘reasonable’ officer.’”[3])


While the Supreme Court declined to decide on any of the qualified immunity cases they received last year, some are holding onto hope. In Taylor v. Riojas, the Institute for Justice reported that “Supreme Court breathed new life into the concept that some constitutional violations are so obvious that they do not require an earlier decision to provide the government worker with fair warning.”


Members of Congress have also been working on ways to dismantle qualified immunity. For example, Democratic Rep. Ayanna Pressley and Libertarian Rep. Justin Amash have introduced a bill in the House that amends the language of Section 1983, stating that “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.” Several Democratic senators have also introduced a Senate resolution that calls for an amendment of Section 1983.


Bills to end qualified immunity are circulating within states and have even passed in several. Colorado and New Mexico are the first states to pass legislation to reform Section 1983, eliminating qualified immunity as a valid defense, while Connecticut and Massachusetts have established their own forms of limited qualified immunity and bills to end it continue to circle in New York, California, and Texas. On the municipal level, New York City has become the first city to end qualified defense for officers, as well as allow citizens to sue police for violating their Fourth Amendment Rights.


And on the grassroots level, we the people can ignite change. With the click of a button, a phone call or email to a representative or senator, or collective protests outside their doors, we can demand our politicians to end qualified immunity. Policy is always connected to people, and if we protest loud enough, our voices cannot be ignored. Reach out to your local senator or representative and implore them to pass the End Qualified Immunity Act (H.R. 1470).






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