Qualified Immunity

What is Qualified Immunity?

Qualified immunity is a provision designed to protect cops from unnecessary prosecution.  It is not a law, but rather a precedent introduced by the Supreme Court during the 1967 landmark case, Pierson v. Ray.

When a civilian attempts to press charges against a police officer for excessive use of force, an officer can ask for qualified immunity at a preliminary hearing.  This hearing will be well in advance of the trial and discovery process, to confirm that there is ample reason for an officer to be charged- it is NOT a trial. 

Once qualified immunity is requested by the defendant, a judge uses a two-step process to determine whether or not it should be granted.

The first question is whether or not the evidence shown could conceivably convince a jury that an officer used excessive force, in violation of the Fourth amendment, which guarantees protection against unreasonable searches and seizures. However, since 2009, appellate courts have been allowed to bypass this step, asking only the second question.

The second question is whether or not the officer is being charged with violating a right that is “clearly established,” meaning that a previous case, where an officer was found guilty, has occurred in an extremely similar situation to set precedent.  

If the answer to either of these questions is “no,” the officer is granted qualified immunity and charges are dropped.

This second question is where charges are dropped in most cases, because it allows officers whose circumstances were “unique”  to receive qualified immunity.  Since their situation is unique, it is rationalized that the officer was “not expected to know” that their actions violated a civilian’s constitutional rights- even in cases where, in hindsight, an officer seems to be clearly at fault, if their case is unique they can escape liability.

As a result of qualified immunity, more than half of cases analyzed by Reuters in 2019 were thrown out because the defendant was granted qualified immunity. It is one of the most difficult legal hurdles for a plaintiff to jump over to sue an officer, and just another example of cops’ unjust legal protections.

So, why does Qualified Immunity exist in the first place?

Proponents of qualified immunity argue that cops should not be distracted from doing their duty by the threat of lawsuits; they are worried that, if a cop is thinking more about how their actions might be perceived, they will be less effective because they might not take a risk and do what needs to be done.  This is the same principle that is the reason why Supreme Court justices are appointed for life- so their decisions are not influenced by its potential reception by the public.  

Proponents are also concerned about maintaining a police force large enough to be effective,  for two reasons.  First, they fear that police officers will spend too much time in court defending themselves against lawsuits, and not on the job. And second, they look to shield officers from financial burdens that may discourage newcomers to the force.  However, this reasoning is flawed. Not only does it value the quantity of available cops over the quality of their performance - because if the police are not held accountable for misconduct, they are not truly serving the community - but the “financial burdens” that they fear would not even be a substantial deterrent to joining the force, as it is the city who is financially responsible.  In fact, a UCLA Law study found that officers were only responsible for an average of 0.02% of payouts in 2014 lawsuits.

Why do we need to repeal Qualified Immunity?

The ambiguity inherent in the doctrine of qualified immunity allows for abuse of its power, so that in the majority of cases it is used, not to protect cops from frivolous lawsuits, but rather to protect them from any punishment for misconduct.  As Institute of Justice Anya Bidwell states, “[it] means that government officials can get away with violating your rights as long as they violated them in a way nobody thought of before.”  The “clearly established” clause of the qualified immunity doctrine contributes to its overuse, thereby neglecting to instill the same values in police officers as they supposedly uphold in their community.  In fact, this loophole reinforces the unaccountability that pervades our policing system, as officers see a pattern and realize that, if they commit a violation, there will likely be no consequences.  Thus, there is no incentive for cops NOT to compromise a citizen’s fourth amendment rights, especially if it will help them to get an arrest.

If anything, police officers should be held to a higher standard, NOT a lesser one. And promoting this attitude of responsibility will only force officers to think before they act rashly, so we see less abuse of force cases in total.

Qualified immunity is used in civil suits- which are separate from a criminal trial.  That means that, regardless of whether an officer is charged or convicted in a criminal court, in order for a victim or victim’s family to receive a payment, they must sue a perpetrator separately in a civil court.  While this may seem at first glance like a simple annoyance of bureaucracy (in order to get “justice,” a plaintiff must be successful in two trials), its actual implications are much worse.  Even is a cop is convicted of murder in a criminal court, qualified immunity can still be used to deny the victim’s family any damages, because the method of murder is so unique.

Thus, qualified immunity prevents justice being served to both sides of an excessive use of force, and ought to be abolished.