Most people are aware that it is possible to hold police accountable for misconduct through a lawsuit. Most people have heard of qualified immunity but aren’t sure exactly how it works. People can be shocked, however, to learn the extent to which the law prevents people from suing officers for their actions.
A federal law (42 U.S.C. § 1983) created the right for citizens to sue government agents for violating the citizen’s Constitutional rights. Nothing in that law mentions qualified immunity or any other kind of immunity for officers alleged to have violated a person’s Constitutional rights. The concept was created entirely by judges.
What Is Qualified Immunity?
Qualified immunity is a legal rule that protects government officials, like police officers, prison guards, or other public employees, from being sued. That’s the “immunity.” It doesn’t mean they can never be sued, however. They are only immune in specific situations. That’s the “qualified.”
So how do courts determine if a government employee is “immune” from lawsuit based on the allegations against them? Court look at two factors:
- Under all the circumstances that the officer reasonably believed to exist, could a reasonable officer have done the same thing? OR
- Was the law they violated “clearly established” at the time of the act?
Let’s break down what that really means.
When Qualified Immunity Applies
Spending a minute to go through those questions helps make it clear why the rule provides surprisingly wide protections to officers.
1. the circumstances the officer reasonably believed
This means that, for the purpose of deciding if the officer is immune, the court looks at the facts as he could have reasonably believed them to be.
An easy example people may be familiar with are officers shooting people holding a phone or a wallet. Often courts find it reasonable for the officer to have believed it was a gun and, therefore, find the officer is immune from suit for suiting an unarmed person.
It is important to note that what is considered “reasonable” is a judgment call made by the judge or judges.
2. Could a reasonable officer have done the same thing
Immediately we can see the “reasonable” standard again. What is a “reasonable officer” and what would they do in a specific set of circumstances may seem to be as much guess work as anything, but if a judge thinks a “reasonable officer” could have done the same thing when confronted with the same circumstances, the the officer is immune.
The part that people often have trouble with is that this rule applies even if the court agrees that the officer did violate the person’s rights.
An understandable example might be an officer who finds a small amount of drugs in the trunk of a car and then arrests all the passengers of the car, believing they all controlled the drugs. Finding drugs in the trunk of a car, with no other evidence, is almost certainly insufficient evidence to lawfully arrest the passengers. It might, however, be enough to give him immunity even if a court agrees it wasn’t actually enough evidence to arrest the passengers.
A less understandable application of this standard might be that a “reasonable officer” could have kept punching a suspect pinned on the ground with multiple officers holding the suspect down.
3. Clearly established
The basic idea of this part of the test is that officer’s should not be sued for thing they didn’t have fair warning would be against the law, which seems very reasonable. Recently, we wrote about brass knuckles being illegal and how that might violate the Second Amendment. Well, the law says they are illegal and no court has ever found the law unconstitutional. It would be unfair, then, if someone arrested for that offense who get the Supreme Court to declare the law illegal could turn around and sue the officer for the arrest.
Here’s the tricky part, the “clearly established” test is often applied in highly specific ways. Many courts will determine that officers still get immunity if a court hasn’t already ruled that doing the exact same thing in a very similar case was illegal. Although the extreme decisions on these grounds have met with some push back, courts have certainly applied immunity based on the “clearly established law” doctrine in some extreme cases.
One case that finally prompted some level of push back from the Supreme Court illustrates just how broad some courts apply these immunity concepts. In West v. Winfield, the 9th Circuit court of appeals had granted immunity to officers looking for a woman’s ex-boyfriend. They believed he was in her home. She granted permission for them to go inside and look for him. Instead, they tear gassed the home, ruining the interior of the home. The 9th Circuit had determined the officer was immune because there could not find a case with exactly the same facts.
Real-Life Examples
🔹 Qualified Immunity Given
In Kisela v. Hughes (2018), a police officer shot a woman holding a knife — even though she wasn’t charging anyone. The Supreme Court gave the officer immunity, saying no previous case made it “clearly established” that the shooting was unconstitutional.
🔹 Qualified Immunity Denied
In Taylor v. Riojas (2020), a prisoner was held for days in a cell covered in feces. The Supreme Court said no one needs a prior case to know that’s wrong — and denied qualified immunity to the officers.
Why It Matters
Qualified immunity protects government workers from being sued when the law isn’t clear or when what they did was reasonable under the circumstances, even if they were ultimately wrong. But, it can also block justice for people whose rights were violated.
Some research has shown that nearly 60% of all cases where qualified immunity is raised as a defense are dismissed because the officer’s are found to be immune.
Specific cases can reach apparently unreasonable conclusions, however, and the degree to which officers are protected often emboldens bad officers and makes insurance companies unwilling to treat people wronged by officers fairly. They know the numbers and know that they are likely to save money in the long run by essentially denying all claims.
Can Qualified Immunity Be Changed?
Yes — but only Congress or the Supreme Court can change it. In recent years, many people have called for reform, especially after cases of police misconduct or abuse in custody. With few exceptions, those attempts have largely gone nowhere and do not appear to be at the forefront of political discourse at this time.
So far, the Supreme Court has mostly supported keeping qualified immunity the way it is. Although the liberal justices are generally the ones most critical of qualified immunity, they have an ally in Justice Thomas. He has repeatedly called for the striking down the rule because, as we mentioned at the outset, it was invented by judges and has no basis in the law passed by Congress.
Final Thoughts
Qualified immunity is complicated — and it can make it harder for people to get justice when their rights are violated by the government. It all comes down to what the courts think a “reasonable officer” would know, and whether past cases gave a clear warning the behavior was illegal. Unfortunately, what that standard actually means we applied to specific cases can often be in the eye of the beholder.
Because the law is complicated, favorable to the defendants, and relatively unpredictable, not many attorneys handle the cases at all, making it even more difficult for people wronged by officers to find justice or accountability.