Legal Sidebari
Policing the Police: Qualified Immunity and
Considerations for Congress
June 10, 2020
In the wake of unrest arising from George Floyd’s death on May 25, 2020, after a Minneapolis police
officer pressed a knee into his neck, broader questions have arisen with regard to how existing law
regulates the conduct of local police officers. While these issues are explored more broadly in these
separate Sidebars, one particular issue of recent judicial and legislative focus has been the doctrine of
qualified immunity. Qualified immunity is a judicial y created doctrine shielding public officials who are
performing discretionary functions from civil liability. The doctrine plays a particularly prominent role in
defense of civil rights lawsuits against federal law enforcement officials under the Bivens doctrine and
against state and local police under 42 U.S.C. § 1983 (Section 1983). With regard to its role in civil
lawsuits concerning violations of constitutional norms regulating the police, defenders of the doctrine
have suggested that qualified immunity plays an important role in affording police officers some level of
deference when making split-second decisions about whether to, for example, use force to subdue a
fleeing or resisting suspect. Critics of the doctrine have questioned its legal origins and have argued that
its practice has provided too much deference to the police at the expense of accountability and the erosion
of criminal suspects’ constitutional rights. With increasing focus on whether Congress should legislate to
abrogate or otherwise modify the doctrine, this Sidebar explores the legal basis for qualified immunity,
how it has operated in practice, and current debate over the efficacy of the doctrine. The Sidebar
concludes by discussing considerations for Congress regarding qualified immunity.
What Is Qualified Immunity?
Qualified immunity is a judicial y created legal doctrine that shields government officials performing
discretionary duties from civil liability in cases involving the deprivation of statutory or constitutional
rights. Government officials are entitled to qualified immunity so long as their actions do not violate
“clearly established statutory or constitutional rights of which a reasonable person would have known.”
The Supreme Court has observed that qualified immunity balances two important interests—“the need to
hold public officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably.” The immunity’s
broad protection is intended for “al but the plainly incompetent or those who knowingly violate the law ”
and to give government officials “breathing room” to make reasonable mistakes of fact and law.
According to the Supreme Court, the “driving force” behind qualified immunity was to ensure that
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“insubstantial claims” against government officials were resolved at the outset of the lawsuit. Qualified
immunity, when applied, provides immunity not only from civil damages, but from having to defend
liability altogether.
Courts apply a two-part analysis when determining whether an official is entitled to qualified immunity:
(1) whether the facts alleged by the plaintiff amount to a constitutional violation, and (2) if so, whether
the constitutional right was “clearly established” at the time of the misconduct. Recent Supreme Court
precedent provides flexibility in applying this standard, granting courts the discretion to decide which
prong to first address in light of the circumstances of the facts of the case at hand. Whether a right is
clearly established depends on whether “the contours of a right are sufficiently clear” so that every
“reasonable official would have understood that what he is doing violates that right.” When conducting
this analysis, courts look to see whether it is “beyond debate” that existing legal precedent establishes the
illegality of the conduct.”
Qualified immunity is available for local and state government officials such as, for example, law
enforcement officers, teachers, or social workers. Federal officials who face liability in cases brought
under the Bivens doctrine—which al ows for individuals to recover for the deprivation of constitutional
rights against federal officials in a few, limited circumstances—may also claim qualified immunity.
Historical Development of Qualified Immunity
The Supreme Court developed qualified immunity as part of its interpretation of the Civil Rights Act of
1871 (also known as the Ku Klux Klan Act) and its codified cause of action at Section 1983. That statute
provides a cause of action for “the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws” by any person acting “under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory.” As applied to the conduct of police officers, Section 1983 provides a
legal remedy for individuals claiming that their constitutional rights, such as the right to be free from
excessive force under the Fourth Amendment, were violated by state or local police acting pursuant to
state or local law. According to the Supreme Court, Section 1983 is a “vital component . . . for vindicating
cherished constitutional guarantees,” as the law has been viewed much like common law tort actions
which deter against wrongful actions. (While Section 1983 facial y applies only to those acting under
state law, the Court functional y expanded its application when it recognized an implied damages claim
for Fourth Amendment violations by federal law enforcement officers in Bivens v. Six Unknown Federal
Narcotics Agents.)
While the modern qualified immunity test was first set forth in the Supreme Court’s 1982 decision
Harlow v. Fitzgerald, the concept of qualified immunity as a “good faith defense“ has origins in common
law. The Court first extended a “good faith defense” to police officers in a Section 1983 case in its 1967
decision Pierson v. Ray. There, the Court held that Section 1983 “should be read against the background
of tort liability that makes a man responsible for the natural consequences of his actions,” and therefore,
common law defenses such as good faith were applicable to actions brought under Section 1983. The
Court determined that although they were not expressly included in Section 1983, there was no evidence
in the legislative record that Congress intended to abolish common law immunities.
Fifteen years later in Harlow, the Court—while again recognizing that the common law afforded
government officials some level of immunity to “shield them from undue interference with their duties
and from potential y disabling threats of liability”—distinguished qualified immunity from absolute
immunity. Absolute immunity provides a complete immunity from civil liability and is usual y extended
to, for example, the President of the United States, legislators, judges, and prosecutors acting in their
official duties. Absolute immunity, according to the Court, provides high-level officials a “greater
protection than those with less complex discretionary responsibilities,” however; for other government
officials, qualified immunity is stil necessary, in the Court’s view, to balance “the importance of a
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damages remedy to protect the rights of citizens” with “the need to protect officials who are required to
exercise their discretion and the related public interest in encouraging the vigorous exercise of official
authority.” Thus, the Court established the modern objective test, granting qualified immunity to those
government officials whose conduct “does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.”
In the years since Harlow, the Supreme Court has continued to refine and expand the reach of the
doctrine. For example, one legal scholar examined eighteen qualified immunity cases that the Supreme
Court heard from 2000 until 2016, al considering whether a particular constitutional right was clearly
established. In sixteen of those cases, many of which involved police use of excessive force in violation
of the Fourth Amendment, the Court found that the government officials were entitled to qualified
immunity because they did not act in violation of clearly established law. In deciding what constitutes
clearly established law, the Court has focused on the “generality at which the relevant legal rule is to be
identified.” Recently, the Court has emphasized that the clearly established right must be defined with
specificity, such that even minor differences between the case at hand and the case in which the relevant
legal right claimed to be violated was first established, can immunize the defendant police officer. For
example, in the 2017 case City of Escondido, California v. Emmons, the Court reviewed a claim brought
by a man who al eged police used excessive force in arresting him. Following past incidents of domestic
abuse by a husband against his wife, police in Escondido, California, responded to a domestic disturbance
cal at the residence of the couple. After failing to make contact with anyone inside the home, a man—
who later turned out to be the wife’s father—eventual y opened the door and passively brushed past the
police. An officer took the man to the ground and handcuffed him, al egedly injuring him in the process.
In holding the officer was entitled to qualified immunity, the Court explained that the appropriate inquiry
is not whether the officer violated the man’s clearly established right to general y be free from excessive
force, but whether clearly established law “prohibited the officers from stopping and taking down a man
in these circumstances.” In so holding, the Court rejected the lower court’s attempts to analogize this case
to another that general y involved the use of excessive force in response to passive resistance by a
criminal suspect. Instead, the Court, citing other recent precedent, stressed the need to “identify a case
where an officer under similar circumstances was held to violate the Fourth Amendment.”
The Debate over Qualified Immunity
As courts have expanded the protections of qualified immunity over the years, criticism of the doctrine
has also increased. At least three major criticisms of the doctrine have emerged. First, some scholars have
argued that qualified immunity has no basis in the common law—the body of law from where the Court
determined the doctrine originated. In a recent concurrence, Justice Thomas advocated for reconsidering
the Court’s qualified immunity jurisprudence on these grounds, arguing that the modern doctrine bears
little resemblance to the common law immunity and instead represents a “freewheeling policy choice”
that the Court lacks the power to make and usurps the role of Congress.
Other criticisms of the doctrine focus more on its practical applications, with some arguing that qualified
immunity no longer achieves its policy goals of protecting public officials from the expense and
distraction of litigation, and from the danger that the fear of being sued wil prevent officials from
performing their duties or from entering public service altogether. For example, Justice Breyer has argued
that indemnification by police departments of their employees may al eviate employees’ concerns about
facing liability upon accepting employment. And according to one study, police officers are “virtual y
always indemnified,”—meaning even if they are found liable for their own individual conduct, the city or
county covers any monetary damages.
And there is some concern that the level of specificity required has made it increasingly difficult for
plaintiffs to show that the law was clearly established—which some scholars have argued may jeopardize
the purpose of Section 1983 as a tool for al owing individuals to recover for constitutional violations.
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Justice Sotomayor, in dissenting in several cases in which the Court found officers were entitled to
qualified immunity, expressed her disfavor with the modern approach, fearing its application essential y
provides an absolute shield for law enforcement officers and “renders the protections of the Fourth
Amendment hollow.” And some statistics may support this hypothesis. According to one recent study,
appel ate courts have shown an increasing tendency to grant qualified immunity, particularly in excessive
force cases. From 2005 to 2007, for example, 44 percent of courts favored police in excessive force cases.
That number jumped to 57 percent in excessive force cases decided from 2017 to 2019.
The modern application of qualified immunity, however, is not without its proponents. Throughout its
qualified immunity jurisprudence involving the police, a majority of the Supreme Court has emphasized
the important role the doctrine plays in al owing law enforcement the flexibility to make judgment cal s in
rapidly evolving situations. According to one defender of the doctrine, members of law enforcement find
it “comforting” to know the doctrine protects “the plainly incompetent or those who knowingly violate
the law.” And although a majority of jurisdictions may indemnify police officers, some do not—leaving
officers at risk of personal financial liability. Other scholars have defended qualified immunity on stare
decisis grounds (i.e., the doctrine that promotes maintaining long settled interpretations of the law—
especial y statutes—absent a special justification), while questioning both the historical and practical
arguments lodged against the doctrine. And some studies, while perhaps also undermining the need for
the doctrine, may also refute the concern that qualified immunity is a significant barrier to recovery under
Section 1983. For example, according to one study, “qualified immunity is rarely the formal reason that
civil rights damages actions against law enforcement end.”
Considerations for Congress
As the debate over qualified immunity continues, there is discussion over which branch of government
should be responsible for reforming the doctrine. Because qualified immunity is judicial y created, the
Supreme Court may, and has in the past, chose to revise the doctrine. As mentioned above, some
justices—for varying reasons—believe the modern application of qualified immunity should be
reexamined. And some observers suggest that the Court may be preparing to reconsider the doctrine. The
Court is currently considering multiple petitions for certiorari in cases that involve chal enges to qualified
immunity. Other scholars, however, express skepticism that the Roberts Court wil reverse course on its
expansion of the doctrine, pointing out that the Court is general y reluctant to overturn its interpretation of
statutes. Another group of scholars suggest that even if it does not completely repeal the doctrine, the
Court may choose to revisit its prior precedent to “better align” qualified immunity with its original y
intended role.
Even without action from the Court, there may be a potential role for Congress in revising qualified
immunity. Because qualified immunity is a product of statutory interpretation, Congress has wide
authority to amend, expand, or even abolish the doctrine. For example, H.R. 7085—the Ending Qualified
Immunity Act—would amend Section 1983 by abolishing both the “good faith” defense and the defense
that the law was not clearly established at the time of the al eged misconduct. A similar proposal—limited
to cases brought against local law enforcement and state correctional officers—is found in the recently
announced Justice in Policing Act of 2020. These proposals would effectively eliminate the judicial y
created doctrine applied in modern Section 1983 litigation.
Questions could remain, however, as to whether eliminating the doctrine in Section 1983 cases properly
calibrates the competing interests that drove the Supreme Court to recognize qualified immunity in the
first place. There may also be questions about whether eliminating qualified immunity for state actors (or
some subset of state actors) under Section 1983 would create an anomaly where the doctrine would stil
exist for federal actors under Bivens. And eliminating qualified immunity entirely—as some proposals
would do—would appear to have effects beyond state and local police officers, as the doctrine extends to
al government employees who make discretionary decisions in their work. As an alternative, Congress
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could instead choose to scale back qualified immunity to more limited circumstances. For example,
Congress could limit the reach of the doctrine to only certain government actors, excluding law
enforcement agents (as the Justice in Policing Act of 2020 does) or limit the doctrine’s application in
cases where certain rights are at stake, such as Fourth Amendment excessive force claims. Congress could
also abrogate recent Supreme Court jurisprudence requiring a high level of specificity for a finding of
“clearly established” law. Or Congress could explore eliminating other doctrines that might be viewed as
insufficiently policing law enforcement misconduct, such as the 1978 Supreme Court decision in Monell
v. Department of Social Services, which significantly limits municipalities’ liability for police misconduct.
These issues may be of relevance as Congress begins to explore ways to reform current law regulating
law enforcement.
Author Information
Whitney K. Novak
Legislative Attorney
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