National Policy
December 12, 2022

On Qualified Immunity, Legal and Practical Analyses Thereof, and Prospects for Reform

Executive Summary

Qualified immunity is a doctrine that protects government officials like police officers from liability when they infringe someone’s constitutional and/or statutory rights if those rights were not “clearly established” at the time they were violated. To determine whether a police officer’s actions meet the threshold of being “clearly established law,” courts look to case law in the jurisdiction in which the case occurs. To overwhelm the “clearly established” bar and procure legal remedies for transgressions upon their rights, plaintiffs effectively need to identify a previous instance in case law where a similar fact pattern occurred and was found to involve unlawful actions by law enforcement. The doctrine of qualified immunity and the way it has applied recently have come under scrutiny. Critics claim that it fails to achieve a balance between police accountability and law enforcement’s crime-fighting prerogatives and creates insurmountable barriers for victims of police abuse to have their rights vindicated.

Qualified immunity was a doctrine created by the Supreme Court, in Harlow v. Fitzgerald in 1982, although its contours have been appreciably shaped by subsequent decisions of the high court as well. Recently, a couple federal judges, most notably Justice Clarence Thomas of the Supreme Court and Judge Don Willett of the Court of Appeals for the Fifth Circuit, have called the court’s qualified immunity jurisprudence into question. However, it is unclear whether the judiciary is ready to refashion or reconsider the doctrine. After the death of George Floyd in 2020, legislators working in Congress and state legislatures have proposed reforms to rein in or abolish qualified immunity. Proposed bills like the Ending Qualified Immunity Act, sponsored by Congressman Justin Amash, at the federal level have fallen through. However, state lawmakers have been more successful with both Colorado and New Mexico removing or reforming the qualified immunity defense for state constitutional violations in state courts. Nevertheless, the failure to implement reforms to qualified immunity in most jurisdictions has been striking and has raised questions about how special interests and their incentives affect the debate and the legislative process. Recommendations for overcoming these barriers are offered.

Pointed Summary

  • Qualified immunity is a doctrine that protects government officials like police officers from liability when they infringe someone’s constitutional and/or statutory rights if those rights did not fall under the category of “clearly established law.”
  • In practice, a rights violation is only considered “clearly established” if it has been established in case law in the relevant jurisdiction and that case had a similar fact pattern as the scenario at issue.
  • It is crucial to understand the stakeholders involved in the qualified immunity debate, as well as how their incentive structures affect their decisionmaking.
  • Critics argue that qualified immunity allows for egregious transgressions against civil rights as established by the Constitution and by statute, treats police officers and others differently under the law, and degrades the public’s trust in law enforcement.
  • Supporters argue that qualified immunity is necessary for police recruitment, to protect officers who make “split-second, life-or-death” decisions, and to shield individual officers against frivolous lawsuits.
  • Some judges like Justice Clarence Thomas have taken issue with the way in which qualified immunity jurisprudence has developed, but it is unclear whether the Supreme Court is prepared to reconsider the doctrine.
  • Federal attempts to reform or eliminate the qualified immunity defense by means of legislation like the Ending Qualified Immunity Act have not managed to clear both houses of Congress due to gridlock and the controversial nature of criminal justice reform.
  • Most states have failed to reform qualified immunity, but Colorado and New Mexico are two notable exceptions.

Overview

In November 2016, a 12-year-old girl from Union City, CA called 911 to report that she, her sister, and her mother barricaded themselves inside a room in their house to protect themselves from Ramon Cortesluna, her mother’s boyfriend. Mr. Cortesluna, who was wielding a chainsaw and was angry and inebriated, posed a danger to the caller and her family. The 911 operator collected details about Mr. Cortesluna’s physical description and dispatched five Union City police officers including Daniel Rivas-Villegas to the house. After observing the house, the officers arrived at the door, announced themselves, and demanded that Mr. Cortesluna open the door. Mr. Cortesluna surrendered himself to the officers upon their demand and dropped his weapon. After Mr. Cortesluna dropped to his knees about ten feet in front of the officers, one cop noticed a knife in his left pocket. He loudly demanded that Mr. Cortesluna put his hands up. Mr. Cortesluna initially turned his head toward the officer, but subsequently dropped his head and his hands. This prompted one officer to fire two beanbag rounds into Mr. Cortesluna’s stomach and hip. Mr. Cortesluna subsequently complied with the officers’ instructions. He raised his hands and got onto the ground. Then, Mr. Rivas-Villegas approached Mr. Cortesluna and placed his left knee on the suspect’s back, applying pressure while moving and holding his arms behind his back.

Mr. Cortesluna brought suit against Mr. Rivas-Villegas, alleging that the Union City police officer used excessive force against him in violation of the Fourth Amendment to the Constitution. The lawsuit eventually reached the U.S. Court of Appeals for the Ninth Circuit. The federal court, which has appellate jurisdiction in California and other western states, denied qualified immunity to the officer, likening the situation to LaLonde v. County of Riverside, a 2000 case in which immunity was denied to officers who knelt on a facedown suspect.

In 2021, however, the Supreme Court reversed the decision of the Ninth Circuit Court of Appeals in an unsigned per curiam opinion. In Rivas-Villegas v. Cortesluna, the Supreme Court repudiated the analogy between the police-suspect interaction in Union City and the one in LaLonde. For one thing, Mr. Cortesluna was armed with a knife, which no party to the case disputes. In LaLonde, the suspect was unarmed. The reason for police involvement was different in the two cases. In LaLonde, police were called to the scene to respond to a neighbor’s noise complaint. In Rivas-Villegas, the concern was an established and time-sensitive risk of domestic violence. For this reason and others, the Supreme Court determined that Mr. Rivas-Villegas should have been given immunity and consequently granted his petition for certiorari.

In many ways, this six-year old police situation in Union City is emblematic of broader debates over the doctrine of qualified immunity, which KQED describes as “a series of legal precedents that protect government officials — including police officers — accused of violating constitutional rights.” Qualified immunity (QI) jurisprudence requires “complainants [to] show that the officer violated ‘clearly established law,’ most often by pointing to factually similar previous cases.” For that reason, the importance of utilizing case law as a metric of comparison - as the Supreme Court did in Rivas-Villegas - should not be understated. As a result of QI and especially its so-called “clearly established” test, police officers are often granted immunity from legal liability when criminal suspects, for example, allege that their rights have been violated.

Opponents of qualified immunity could point to the Union City situation and argue that even when officers demonstrably use excessive force including kneeling on suspects and firing at suspects who in all probability posed little immediate danger are immune from the law and the Constitution. Proponents of qualified immunity, on the other side, could point to the same course of events and use it as an unmistakable example of how officers sometimes need the discretion and force when dealing with suspects who posed a threat to others, in this case Mr. Cortesluna’s girlfriend and her children.

Of course, domestic violence situations are not the only places in which officers have been given qualified immunity. Critics have pointed to examples like the 2014 case in which Denver police officers including Christopher Evans received qualified immunity for punching and otherwise using force against a man named David Flores during a traffic stop and subsequently pressured an onlooker named Levi Frasier to delete a video he was filming of the interaction. Despite the protections for freedom of speech and the press under the First Amendment and relevant Denver police department training, the U.S. Court of Appeals for the Tenth Circuit reversed a federal district court’s denial of qualified immunity, reasoning that only prior court cases “authoritatively define the boundaries of permissible conduct in a way that government-employer training never can.” The Supreme Court denied certiorari in the case.

Cases like the ones in Union City and Denver have put the doctrine of qualified immunity front and center in the contemporary debate about criminal justice reform. In this brief, I discuss the definition and history of the doctrine, its advantages and disadvantages, and policy actions that can be considered to reform it.

Explanation and History

What is Qualified Immunity?

In general, qualified immunity is a type of governmental immunity that is conditional upon a state actor acting in good faith, typically as established by case law. In particular, qualified immunity gives government officials like police officers immunity from legal liability “for acts that violate someone’s civil rights if it can be shown that the acts do not violate clearly established statutory or constitutional rights of which a reasonable person would be aware” according to Merriam-Webster. Qualified immunity can be invoked by police officers as an affirmative defense when they are sued for performing unlawful acts such as violating someone’s rights guaranteed by the Constitution.

The so-called “clearly established” test is the centerpiece of qualified immunity jurisprudence. The test “only allow[s] suits where officials violated a ‘clearly established’ statutory or constitutional right.” The legal rationale for the “clearly established” test is to erect careful balance between what are widely considered two important societal interests with regards to policing. Justice Samuel Alito, delivering the opinion of a unanimous court in Pearson v. Callahan, explains, “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.” Conceiving of the modern debate over qualified immunity through this balancing act framework reveals why people take the positions they do on the issue. People who view limiting the scope or discretion of the police and eliminating law enforcement abuses as the most important goal - this tends to include progressives and libertarians - tend to view qualified immunity skeptically. On the other hand, those who view empowering police and promoting campaigns to crack down on crime as more important - including conservatives - tend to view qualified immunity in a positive light.

However, the “clearly established” aspect of qualified immunity is not as straightforward as it may seem. Given that there is no firm consensus about what “clearly established” rights are, some critics have blasted the test as unreasonably vague and a moving target that stacks the deck against plaintiffs seeking relief for violations of rights. Jay Schweikert, the author of a policy analysis titled “Qualified Immunity: A Legal, Practical, and Moral Failure”, describes the “clearly established” test as “an amorphous, malleable standard.” Mr. Schweikert, who is a research fellow with the Cato Institute’s Project on Criminal Justice, continues: “it generally requires civil rights plaintiffs to show not just a clear legal rule but a prior case with functionally identical facts” (emphasis in original). What this functionally means is that when someone sues an officer, it is insufficient to show that his or her constitutional or statutory rights were violated. Rather, he or she must demonstrate that the officer knew or was expected to know that their actions constituted such violations based on prior case law. Moreover, it is not enough to draw out fundamental legal or constitutional matters from previous cases, but one must show that the way in which his or her rights were violated is sufficiently similar to a previous case in which a police officer violated the rights of another. As Mr. Schweikert puts it, “the law must be ‘particularized’ to the facts of the case,” and this typically can only be achieved by invoking “a prior case in the relevant jurisdiction with functionally similar facts.”

Patrick Jaicomo is an attorney who works for the Institute for Justice (IJ), a nonprofit, public interest law firm. He has represented several clients who have alleged that their constitutional rights were violated by police officers, and he has argued against qualified immunity in front of courts. I reached out to Mr. Jaicomo to get his expertise about the doctrine. (See “Appendix” for a full biography of Patrick Jaicomo and his response to my questions.) He concurs with Mr. Schweikert’s claim that qualified immunity’s “clearly established” test is in fact unclear. Mr. Jaicomo, though, goes one step further. “First, I would say that the ‘clearly established’ test is a misnomer,” he tells me. This was an assertion that I did not expect. However, the postulation that qualified immunity fairly and adeptly maintains a balance between the dual interests of empowering police to restrict crime and ensuring that officers are held accountable raises more questions than it answers. This is especially true given that the stated mechanism for maintaining the delicate balance is by comparing current litigants’ encounters with police at present with previous litigants’ situations in case law.

Mr. Schweikert writes that “[m]odern qualified immunity doctrine … has proven impossible to apply with predictability or consistency. Indeed, there is perhaps no other Supreme Court doctrine that has engendered as much confusion and division among lower court judges as the Court’s amorphous instructions on when a given right is clearly established.” The Supreme Court has promulgated handy pieces of advice to lower courts. Chief among them is to avoid generalizations and to always prioritize the particular facts of a case when seeking to resolve questions of “clearly established law.” But these nuggets provide little more than a general framework to handle immunity claims. They do not clearly delineate which rights have been clearly established and which rights have not. They amount to little more than an English teacher urging essay-writing students to maintain concision, avoid run-on sentences, cite sources, and incorporate facts and details. These are useful pointers to be sure, but they are not sufficient to resolve the students’ questions about the prompt and the substance of the essay. Lower courts are left to navigate through a messy quagmire of cases, which precludes clear and universal standards from emerging.

As a result, lower courts have decided qualified immunity cases very differently, with many finding that officers are indeed entitled to qualified immunity and others being more reluctant to grant it. This is not problematic on its own, but the “unpredictable nature of qualified immunity also deters meritorious lawsuits from being filed in the first place.” Attorneys recognize that in some federal judicial districts, claims alleging constitutional rights violations are unlikely to succeed either due to judges’ tendency to grant immunity or because case law is too limited in the jurisdiction to mount a compelling claim that a “clearly established” right has been flouted.

The problem is not limited to unclear signaling to lower courts. For the “clearly established” test to hold water, it needs to be absorbed by police. Mr. Jaicomo is concerned about qualified immunity on these grounds. “Police and other government workers are not carefully monitoring the federal reports for the newest circuit decisions to govern their behavior,” he informs me. “They are relying … on broad, general statements of constitutional law, which are the focus of their in-house training. So it’s not as if the standard really reflects what is clearly established in the minds of police officers.”

Mr. Jaicomo’s contention that police officers, courts, and individuals have differing conceptions of what is “clearly established” is not only a hunch; there is empirical evidence that indicates that training for police officers is inadequate, only deals with general principles, and fails to capture the “particularized” facts of the case that the Supreme Court emphasizes for evaluating qualified immunity defenses. Mr. Jaicomo referred me to Professor Joanna C. Schwartz’s article in the University of Chicago Law Review titled “Qualified Immunity’s Boldest Lie.” Professor Schwartz, who works at the UCLA School of Law, conducted a study that examines department policies, training materials, etc. at California police departments to assess how holistic these resources are and whether they adequately describe case law holdings and facts for cases interpreting Graham and Garner in the Ninth Circuit. (Graham v. Connor and Tennessee v. Garner are two important Supreme Court cases in which the court laid out standards for when the use of excessive force by police officers is reasonable. Graham and Garner are significant because the tests they established for excessive force claims emphasize the particular circumstances in which the officer used force. For example, it is less likely that a plaintiff’s claim that his rights were constitutionally violated will succeed if an officer had a significant and legitimate reason to believe that the suspect posed an immediate threat to others.)

While police officers are indeed “regularly informed” of the general principles delineated by the Supreme Court in Graham and Garner, Professor Schwartz’s “review of California police department policies and training, advice from government attorneys, and other sources makes clear that officers are not educated about the facts and holdings of cases applying Graham and Garner to various factual scenarios.” If officers are not informed about “precisely the types of cases that the Supreme Court says are necessary to give fair notice to officers and clearly establish the law for the purposes of qualified immunity,” the central premise of the doctrine (as one that requires an understanding of “clearly established law” in the relevant jurisdiction and knowing how it applies in policing scenarios) crumbles. She contends that given the fact that case law in this area is expansive, complex, and at times contradictory, it is inevitable that officers will not be able to comprehend holdings and facts of prior cases fully.

History of Qualified Immunity?

An unabridged history of the qualified immunity doctrine will not be provided here for reasons of brevity, but a short overview of the relevant decisions of the Supreme Court that have molded qualified immunity will be communicated.

There is some scholarly debate about which Supreme Court case set up the modern doctrine of qualified immunity. I find its origins in Harlow v. Fitzgerald (1982) as do other sources. However, there was a case fifteen years earlier that was consequential as well. In Pierson v. Ray (1967), Chief Justice Earl Warren, writing for an 8-1 majority, ruled that police officers were not entitled to absolute immunity, but they could be exempted from liability if they could show that they had a subjective belief that they were acting in good faith and had probable cause. It is in Pierson v. Ray that the following famous line is found: “A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.” This foreshadowed one of the key arguments in favor of qualified immunity decades later: that forcing officers to bear the brunt of a judgment for liability would complicate the efficacious performance of their crime-fighting duties. In Pierson, the Warren court effectively said that “it would be unfair to hold government officials to constitutional rules they were not aware of at the time of the violation.”

Although the majority opinion in Pierson contained references to absolute or unqualified immunity, which the court concluded was appropriate for judges but not for law enforcement, it was Harlow v. Fitzgerald, which established the doctrine proper which we know today. In Harlow, the 8-member majority said that certain executive branch officials such as the president of the United States and prosecutors were entitled to absolute immunity, but that most federal officials like presidential aides were entitled to qualified immunity. The foremost holding of Harlow was “that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” at the time it occurred in the words of Justice Lewis Powell’s majority opinion. Because the “clearly established” test is the chief component of modern qualified immunity jurisprudence, Harlow can, in no uncertain terms, be classified as qualified immunity’s progenitor. Although the standard established in Harlow was deferential to government officials, the majority cautioned that it should be taken as “no license to lawless conduct.”

Qualified immunity jurisprudence has since moved to require finding a functionally similar fact pattern, rather than merely the same constitutional or legal principle. Moreover, the court has repeatedly reaffirmed that if it is plausible that a reasonable officer “could have believed … [a] warrantless search,” for instance the search that was at issue in Anderson v. Creighton (1987), was “lawful in light of clearly established law and the information the searching officers possessed,” he or she is to be granted immunity notwithstanding the court finding that the search indeed violated the Fourth Amendment to the Constitution.

In Pearson v. Callahan (2009), the case in which the Justice Samuel Alito-led majority wrote the canonical words about qualified immunity’s goal of balancing the interests of public accountability against protections for government officials, the Supreme Court ruled that courts should be able “to grant qualified immunity based only on the clearly established prong—and without ever determining if there was a constitutional violation.” In doing so, the two-step test laid out by the court in Saucier v. Katz (2001), wherein courts were required to make a determination of whether a constitutional violation occurred based on the facts of the case prior to adjudicating whether qualified immunity ought to be granted under the “clearly established” standard, was abandoned. This, in Judge Don Willett’s words, creates a “catch-22.” It retards the development of case law because it leaves unresolved the question of whether the actions of law enforcement amount to a violation of constitutional and/or statutory rights. This keeps the contours of what is considered “clearly established law” small, which makes it harder for future litigants to obtain relief.

Relevance of Qualified Immunity Today

Much of the contemporary focus on criminal justice reform is a result of the death of George Floyd, a black man who was killed in May 2020 when Minneapolis police officer Derek Chauvin kneeled on his neck for more than nine minutes when attempting to arrest him for paying for a pack of cigarettes with a counterfeit bill. Mr. Floyd’s death resulted in nationwide protests demanding changes to policing practices. There have been several proposals floated in the past two years to address what some view as unfair or racially disproportionate policing. These include, but are not limited to, banning chokeholds, eliminating no-knock raids, defunding the police, creating national standards for police training and deescalation, restructuring Fraternal Order of Police contracts, and changing police culture. The merits and relative benefits of each of these reforms can be considered elsewhere. (It is important to note that proposals for criminal justice reform are not equally meritorious and some could have consequences that impair the reformist cause or contribute to other detrimental effects on society.) However, what is relevant here is that reforms to qualified immunity have also been proposed in light of the renewed criminal justice reform moment. As Sarah D. Wire of the Los Angeles Times writes, “[q]ualified immunity has entered the popular lexicon in the last few years, especially since the murder of George Floyd in 2020.”

People and Institutions

Stakeholders

Although the doctrine of qualified immunity is applicable to a wide variety of government officials, this brief considers it in the context of police officers. Consequently, police groups are one of the major stakeholders in the issue. Police unions tend to support qualified immunity, viewing the doctrine as an important factor that helps law enforcement perform its critical duties to protect and serve communities. The Fraternal Order of Police, for example, which describes itself as “the world’s largest organization of sworn law enforcement officers, with more than 364,000 members in more than 2,100 lodges,” backs qualified immunity, viewing attacks on the legal doctrine as deleterious to police recruitment. Moreover, the group has filed amicus briefs defending the doctrine, which its president Patrick Yoes says “is so critical to the work of law enforcement” in serious situations like domestic violence. Likewise, the International Association of Chiefs of Police (IACP), which describes itself as “the world’s largest and most influential professional association for police leaders,” is “fervently opposed to change the qualified immunity protections,” which it considers “an essential part of policing and American jurisprudence.” A statement released by the IACP argues that qualified immunity “allows police officers to respond to incidents without pause, make split-second decisions, and rely on the current state of the law in making those decisions. This protection is essential because it ensures officers that good faith actions, based on their understanding of the law at the time of the action, will not later be found to be unconstitutional. The loss of this protection would have a profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.”

In addition to law enforcement-aligned groups, the vast majority of elected Republicans oppose significant changes to qualified immunity. Discussions about altering qualified immunity proved to be a sticking point in Senate Judiciary Committee negotiations over criminal justice reform in the first year of the 117th Congress. Senate Minority Leader Mitch McConnell, speaking for Senate Republicans, voiced concern about Democrats’ insistence that the qualified immunity doctrine be weakened or eliminated entirely. Other senior Republicans including Senator John Cornyn of Texas and Senator Chuck Grassley of Iowa, the latter of whom serves as ranking member of the Senate Judiciary Committee, have also expressed skepticism along similar lines, articulating concerns about police recruitment and opening up law enforcement for more lawsuits. Although Senator Tim Scott of South Carolina, the lead Republican negotiator on the criminal justice reform bill, had reportedly been open to a compromise on qualified immunity reform, reformers’ hopes were dashed. The qualified immunity provisions were scrapped as the deal was not wholly acceptable to either the left or the right.

Civil liberties organizations and criminal justice advocacy groups are another major class of stakeholders. They tend to oppose qualified immunity, viewing the doctrine as excessively deferential to police officers and other public officials. Groups that oppose qualified immunity include the NAACP Legal Defense Fund, which it says “allows law enforcement to cross legal lines they know they should not, while dehumanizing members of our communities.” Other groups that believe qualified immunity should be eliminated are the American Civil Liberties Union (ACLU) and the Equal Justice Initiative (EJI), which argues that “the Court’s doctrine has served as the basis for denying a remedy to victims of violent and deadly police misconduct, effectively creating a category of injuries without repair.”

Many elected Democrats oppose qualified immunity, with the 2020 Democratic Party platform calling for “reining in the doctrine of qualified immunity.” Democrats have included provisions to limit or end qualified immunity in a proposed police reform bill, and 65 Democratic members of the House of Representatives cosponsored Congressman Justin Amash’s Ending Qualified Immunity Act (H.R.7085). Eliminating qualified immunity is especially supported by the progressive wing of the Democratic Party, which believes it is a nonnegotiable issue in criminal justice reform negotiations.

It is important to note that although the qualified immunity debate tends to break down along partisan lines, this is not universally true. For example, some moderate Democrats, either out of a desire to achieve a bipartisan compromise or to maintain the interests of police officers and unions, have said that removing qualified immunity from the criminal justice reform discussion may be justifiable. Much to the chagrin of House progressives, House Majority Whip Jim Clyburn said that he “will never sacrifice good on the altar of perfect” and was willing to look to other ideas that may be more acceptable in the minds of his Republican colleagues. Some Democrats have walked back support for eliminating qualified immunity. For example, Terry McAuliffe “backed away from his support for ending qualified immunity” in his campaign for the Virginia Governor’s Mansion against Republican businessman Glenn Youngkin although he had previously argued for doing away with the doctrine.

Individuals and groups which identify themselves with libertarianism or the libertarian right tend to support eliminating qualified immunity. Libertarian Congressman Justin Amash introduced the Ending Qualified Immunity Act (H.R.7085), and think tanks like the Cato Institute have produced research and policy analyses calling the doctrine into question. Some conservatives have supported curtailing qualified immunity. Congressman Tom McClintock is the only Republican cosponsor of Mr. Amash’s proposed legislation. In remarks delivered at the House Judiciary Committee Oversight Hearing on Police Practices and Law Enforcement Accountability in June 2020, Mr. McClintock blasted the doctrine: “qualified immunity as currently applied has no place in a nation ruled by law.” He continued, “For every right there must be a remedy, and qualified immunity prevents a remedy for those whose rights have been violated by officials holding a public trust. … Reforming qualified immunity simply holds public officials to the same standards as any other citizen exercising the same powers.” Republican Senators Mike Braun and Mike Rounds have shown willingness to accept adjustments to qualified immunity, although both oppose getting rid of the doctrine altogether. Mr. Braun introduced legislation titled the “Reforming Qualified Immunity Act” (S.4036) to restrict what he considers to be the excesses and improper applications of the modern iteration of the doctrine. Although Mr. Braun’s bill was supported by some conservative groups, it attracted no Senate cosponsors and was faced with a strong backlash from some quarters.

Interests and Incentives

That incentives matter is one of the most critical lessons of the economics field. (See chapter 2 of Charles Wheelan’s Naked Economics titled “Incentives matter: Why you might be able to save your face by cutting off your nose [if you are a black rhinoceros].”) However, it is applicable to public policy analysis as well. Political scientists like Mancur Olson incorporated a careful study of incentives in political science concepts like collective action. The incentive structure at play is important to draw out when considering policing issues. I will not illustrate the entire incentive structure at play here. Future policy analyses should explore this issue. However, I will briefly lay out a few issues that could be incorporated into a framework to analyze the incentives that matter to stakeholders in the qualified immunity issue.

One of the critical parts of public policy analysis in the area of criminal justice is understanding why change appears so intractable. What are the reasons for indifference, and more importantly why does overcoming this first burden often fail to result in concrete action? It would be inaccurate to say that no policy change has been made. For example, in 2018, both houses of Congress passed and President Donald Trump signed the bipartisan First Step Act, which made a wide breadth of changes to policing practices, offered opportunities to cut lengthy prison sentences, made changes to mandatory minimum sentences, and encouraged programs to rehabilitate prisoners and reduce recidivism rates, among other things. States have also changed policing and sentencing policies as I discuss in the “Tried Policy” section.

Despite some changes, entrenched special interests have managed to stymie efforts to reform qualified immunity. (This section does not deal with whether these reforms are good ideas. See the “Current Stances” section for a discussion of the advantages and disadvantages to eliminating or reducing the application of qualified immunity.) In the “Stakeholders” section, police unions were identified as key in the defense of qualified immunity. Police unions indeed play a large role in federal politics and deliberations over criminal justice matters. Police unions and their interests have caused a rift within the ranks of Democratic policymakers, which has come to the surface recently. Laura Barrón-López writes, “Democrats and police unions haven’t been friendly for some time, but up until now, the two groups have avoided a full-blown war. The collapse of the federal bargaining bill shows how fast the cultural and political ground is shifting as Democrats question what little is left of the relationship.” Police-aligned groups like the Fraternal Order of Police, despite being willing to accept some legislative reforms including the First Step Act, have remained steadfast in their desire to maintain qualified immunity for the sworn law enforcement officers who constitute their membership.

Despite significant momentum in state legislative bodies to rein in qualified immunity, “in state after state, the bills withered, were withdrawn, or were altered beyond recognition,” writes Kimberly Kindy. “At least 35 state qualified-immunity bills have died in the past 18 months, according to an analysis by The Washington Post of legislative records and data from the National Conference of State Legislatures.” The reasons why reforms were not adopted or were watered down are complex, but one major reason appears to be what Ms. Kindy describes as “multifaceted lobbying campaigns by police officers and their unions targeting legislators, many of whom feared public backlash if the dire predictions by police came true.” Police unions, which represent officers, have claimed that allowing more suits against individual officers would financially hurt them and that police ought to receive the benefit of the doubt given that they make difficult life-or-death decisions in uncertain and dangerous situations. (The veracity of these arguments are evaluated in the “Current Stances” section.)

Police unions function as interest groups that represent their members in matters involving the state. In this case, the members are police officers, who generally feel that public policy should default on the side of giving them more discretion rather than less. Unions spend money and resources to defend their members in arbitration hearings, and according to Noam Scheiber, Farah Stockman, and J. David Goodman, “they have also been remarkably effective at fending off broader change, using their political clout and influence to derail efforts to increase accountability.” Their importance in the administration of municipal police departments and in local, state, and national politics means that they are a player whose power must be appreciated. Some unions even spend hundreds of thousands of dollars backing political candidates. Police unions have fruitfully mounted advertisement campaigns and have used rhetoric to articulate reasons why strengthening police and by extent defeating changes to police practices is necessary for public safety. “So far, police are winning the argument nearly everywhere,” Mr. Scheiber, Ms. Stockman, and Mr. Goodman observe, meaning advocates face a tough road ahead of them to implement serious and lasting changes to qualified immunity.

Radley Balko, who writes about criminal justice issues in the pages of the Washington Post, recommends utilizing a public choice-themed framework for understanding the inaction and sluggishness involved in criminal justice reform. Mr. Balko is referring to public choice theory, a school of political economy that uses an economic frame of mind to analyze politics. The school, which was pioneered by economists James M. Buchanan and Gordon Tullock (the former of whom later won the Nobel Memorial Prize in Economic Sciences), stipulates that government actors are fallible and self-interested human beings, just like actors in a market setting. Working from this fundamental observation and others, public choice economists attempt to understand the incentives facing elected officials, government employees, and state institutions. Mr. Balko begins to do so for the particular cases of police officers and prosecutors. Mr. Balko posits that legal features or loopholes (depending of how you normatively evaluate them) like “good faith” exceptions that are reminiscent of the modern qualified immunity doctrine “essentially become road maps for unscrupulous police or prosecutors” because it is exceedingly difficult to prove that an officer was acting maliciously or in “bad faith.” Consequently, rates of officers using excessive force may be higher than they otherwise would be because the large possibility of immunity from legal liability removes the disincentive to reckless actions. Recognizing that the lessons of public choice have been applied in a wide variety of policy areas, save criminal justice, Mr. Balko suggests using its tools to analyze questions ranging from civil asset forfeiture to drug searches to the election of county sheriffs. Incentives appear literally everywhere, and it would behoove policymakers and future researchers to seek to understand them in all of their complexity, whether they choose to adopt the public choice theory approach or some novel framework.

The incentives of not just police officers and the groups that represent their interests matter. It is necessary to consider the unique incentives facing politicians as well. Politicians care, perhaps more than any other aim, of winning elections. Research finds that the prospect of future reelection campaigns incentives politicians to sponsor legislation, take part in floor votes, and participate in committees. One study finds that although politicians are not just “single-minded seekers of reelection,” politicians choose policy priorities, for example, through the lens of winning favor with voters for an upcoming election. Lisa Hager, a political scientist at South Dakota State University, writes, “Members of Congress often use policy-making activities to pursue reelection by engaging in position taking and credit claiming activities.” For this reason, understanding what voters want and whether politicians can deliver on those preferred outcomes is necessary. There is not a great deal of public opinion about qualified immunity specifically, but the polling that does exist finds a majority of Americans in favor of eliminating the doctrine. A national survey conducted by the Cato Institute in 2020 finds 63% in favor of eliminating qualified immunity including a majority of Democrats and independents (79% and 64% respectively) and a minority of Republicans (42%). 79% said that a police officer who violates someone’s rights should face consequences even if he or she did not know of the illegality of his or her actions. In a Pew Research poll, 66% of respondents (84% of Democrats and lean-Democrats, and 45% of Republicans and lean-Republicans) said that “civilians need to have the power to sue police officers in order to hold them accountable for excessive use of force or misconduct.” Notably, both polls find that eliminating qualified immunity is much more popular than controversial proposals like defunding police departments, an idea which is opposed by a majority of Americans.

The next question, which is often overlooked, is whether public opinion will actually translate into policy outcomes. (This is a question that is tackled in depth in the “Tried Policy” and “Policy Options” sections.) This is a question that interests me greatly, and there is a burgeoning field of political science research that sets out to answer it. In “Democracy for Realists: Why Elections Do Not Produce Responsive Government,” for example, Christopher H. Achen of Princeton University and Larry M. Bartels of Vanderbilt University lambast the so-called “folk theory of democracy,” which maintains (erroneously in their view) that the voting public makes their decisions at the ballot box based on coherent policy preferences. They unpack and demolish this view on the grounds that voters are ignorant and vote based on partisan affiliation and other facets of group identity. Researchers should build on this work and seek to understand how voters feel about qualified immunity and whether they can meaningfully signal these preferences to interested policymakers.

I asked Patrick Jaicomo whether he “think[s] that public appetite for criminal justice reform will result in action aimed at reforming qualified immunity, or [if] hurdles like police unions and prosecutors concerned with crime stymie efforts at reform.” He replied: “It’s hard to guess what public opinion will accomplish. It could be everything or it could be nothing. We are still committed to pushing for reforms in courts, Congress, and the public square. But I have to admit that I am less optimistic about congressional reform given that all of the protesting that took place after George Floyd was killed apparently was not enough to get Congress to find a solution.”

Current Stances

Reasons to Eliminate Qualified Immunity

There are several arguments that have been offered in support of and in opposition to qualified immunity. I will start with the latter. The following are the main arguments for eliminating or curbing the doctrine.

Eliminating qualified immunity is necessary to curtail abuses of individual rights.

There are simply too many instances where police officers have egregiously violated individuals’ rights and got away with it due to qualified immunity, the argument goes. As Ben Sperry notes in an op-ed, “the doctrine prevents many cases of illegal conduct by police from even progressing to a hearing in front of a jury.” This deprives individuals from the opportunity to seek meaningful recourse in a court of law and deters otherwise valid and compelling lawsuits from being pursued because they face near-impossible odds as long as courts abide by the prevailing interpretation of qualified immunity. Without a reliable mechanism of accountability, rights including those guaranteed by the Constitution become empty promises. A right that is called a right, but is repeatedly disrespected, may not be worthy of the name.

It has been clearly established that the “clearly established” test lies at the heart of contemporary criticism of qualified immunity. It imposes a requirement that litigants be ultra-specific, not only when identifying previous instances in which a particular constitutional right was violated, but in which the right was violated in a practically similar way. “[I]f a correctional officer pepper sprayed an inmate in a prison without cause,” Mr. Sperry notes in referring to the legal dilemma faced by a Texas inmate named Prince McCoy who sued a correctional officer for groundlessly spraying him with a chemical agent in McCoy v. Alamu, “the case cited to rebut that officer’s qualified immunity can’t be one finding that police officers may not tase someone at a traffic stop for no reason” even though both involve the use of unnecessary force by agents of the state and similarly implicate Fourth Amendment and Eighth Amendment concerns.

It is no wonder that two commentators described the “clearly established” test as “the minnow that has swallowed the whale.” There are no clear and consensus standards for which rights have been “clearly established,” opening up case law to hundreds of different and contradictory interpretations. Achieving what Justice Alito in Pearson v. Callahan termed a balance between “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” is important. However, the modern application of qualified immunity has tipped the scale far toward the latter side of the balance, unfairly prejudicing officers to the detriment of those alleging serious violations of human rights. The requirement that a rights violation be “clearly established” as such and the burden that places on litigants eviscerates the valid benefits of the doctrine and makes it a cesspit of confusion, contradiction, and bias. The difficulty with coherently determining what has been “clearly established” as a right in case law and what falls outside of this category leaves “lower courts … with a Catch-22. They cannot enforce a right without it being established, but the only way to establish the right is to enforce it.”

Because the most atrocious of police abuses is likely to be more unique than fact patterns involving more common forms of police misconduct, it is often those who have incurred the most unimaginable deprivations of constitutional rights who find it the most difficult to seek justice. If there is no case law with an arbitrarily similar fact pattern in the relevant jurisdiction, courts will default on the side of granting qualified immunity to the officer who has allegedly violated the person’s rights. Perhaps the most shocking time when a federal court gave qualified immunity to an officer was in Corbitt v. Vickers. According to Jay Schweikert’s summary of the facts and the U.S. Court of Appeals for the Eleventh Circuit’s decision, law enforcement officers in Coffee County, Georgia, were chasing a criminal suspect, who made his way into the backyard of the Corbitt family, who were otherwise unrelated to the suspect or the case. The officers made their way into the backyard, where the one adult and six children were told to get on the ground. They did, and the officers successfully apprehended the suspect. What followed is where the controversy arises. The Corbitt family’s dog entered the backyard and acted in a manner that posed no significant threat. One officer named Michael Vickers nevertheless twice attempted to shoot at the dog. The first shot missed the dog, and the second shot missed the dog and hit Amy Corbitt’s 10-year-old child, who sustained significant damage to his knee, as well as mental trauma from the incident. Amy Corbitt, on behalf of herself and her child, sued Mr. Vickers on the grounds that he used excessive force in contravention of the Fourth Amendment and the Fourteenth Amendment to the Constitution. The district court denied qualified immunity, but the Eleventh Circuit Court of Appeals reversed. According to Mr. Schweikert, the majority “said that there was no prior case law involving the ‘unique facts of this case,’ in which a child was accidentally shot while the officer was intending to shoot someone (or something) else,” so qualified immunity must be granted. The Eleventh Circuit also explicitly neglected to settle the constitutional question and was content with only deciding that qualified immunity ought to be granted. Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit, in criticizing this approach, wrote, “Translation: If the same officer tomorrow shoots the same child while aiming at the same dog, he’d receive the same immunity. Ad infinitum.”

Although the “clearly established” requirement at first seems reasonable, a closer examination of its practical effects reveals that it is often applied narrowly and stringently by both police officers and judges. Patrick Jaicomo, an attorney with the Institute for Justice, “say[s] that the ‘clearly established’ test is a misnomer” that covers grave constitutional concerns. He remarks that “[p]olice and other government workers are not carefully monitoring the federal reports for the newest circuit decisions to govern their behavior. They are relying (as demonstrated by Prof. Joanna Schwartz) on broad, general statements of constitutional law, which are the focus of their in-house training. So, it’s not as if the standard really reflects what is ‘clearly established’ in the minds of police officers.” If police officers are ill-informed about the contours of “clearly established” rights, they are more likely to violate these rights - either due to a lack of information resulting from the lacuna in their training or because they lack the incentive to ensure their actions respect constitutional and statutory rights. Ambiguity about what “clearly established” means has led courts to “resort to a restrictive definition of clearly established law, requiring a controlling precedent in the jurisdiction where the violation took place,” notes Tyler Finn. (See the “What is Qualified Immunity?” section for further elaboration.) This matters for protecting constitutional rights (for example, the First Amendment right to record police officers on duty), which may not be wholly protected under the current qualified immunity regime.

Judge Don Willett, a judge on the U.S. Court of Appeals for the Fifth Circuit who is a big critic of qualified immunity, has penned a few piercing opinions lambasting the doctrine. In Zadeh v. Robinson, his opinion concurring in part and dissenting in part argued that the “clearly established” test operates as a “legal deus ex machina” that precludes Fourth Amendment claims, for example, of being vindicated before the law. “To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” Judge Willett synthesized his views in his dissent in Cole v. Carson: “The real-world functioning of modern immunity practice—essentially ‘heads government wins, tails plaintiff loses’—leaves many victims violated but not vindicated.” This is the thrust of the main argument against qualified immunity. It stacks the deck against victims of serious rights violations and means that constitutional and statutory guarantees go unfulfilled for many Americans.

Eliminating qualified immunity is necessary to ensure that police officers and other citizens are treated equally under the law.

Radley Balko writes, “There’s a good argument to be had over whether police officers should be held to the same legal standards as the rest of us, or, given the high stakes that come with those powers, we should hold them to a higher standard — complete fidelity to the letter and spirit of the law. But in a free society, there is no real argument that the officials we entrust with these powers should be held to a lower legal standard, that we should let them pick and choose which laws they want to follow” (emphasis in original). Yet this is what qualified immunity has done, the argument posits. It has excused police officers and government officials from the consequences of violating the rights of citizens. This is particularly problematic because it creates two standards of law: one for state actors like police officers and another for other citizens. Qualified immunity means that police officers are treated far more leniently for the same behavior that would earn ordinary citizens jail time. The old adage that “no one is above the law” is particularly relevant here. Perhaps the adage should be revised in light of legal doctrines like qualified immunity to“no one should be above the law” to make clear that this should be a position Americans should fight for, rather than being a wholly accurate description of how matters have panned out.

Eliminating qualified immunity would help rebuild trust in law enforcement.

National survey results detected a decrease in trust in law enforcement beginning in 2020. Scottie Andrew reported for CNN that only 48% of Americans had “a great deal of” or “a lot of” trust in the police in 2020, a three-decade low that is down from 53% in 2019 based on Gallup polling data. Mr. Andrew conjectured that this is in part a result of increased media coverage and attention to the deaths of black Americans like George Floyd at the hands of police and noted that the drop in confidence in police is particularly acute among blacks. Since 2020, some of the lost confidence in police, among black Americans and the American public in general, has been restored. However, confidence in law enforcement is below what it was in the pre-pandemic United States. According to Gallup, as of July 2021, only 11% of black adults, 17% of white adults, and 35% of Hispanic adults “a great deal” of or “quite a lot” of confidence in the criminal justice system. Over the three-year period from December 2018 to December 2021, the percentage of Americans who have “not too much” confidence in police officers or “no confidence at all” increased from 22% to 31% based on data from Pew Research Center. The percentages of Americans who have “a great deal” of confidence in police officers and “a fair amount” of confidence in police officers decreased from 30% to 20% and 78% to 69% respectively over the same time period.

Restoring trust in law enforcement is important. After all, police officers are members of a community. They are the members of the citizenry who play the vital role of keeping the streets safe, ensuring public order, apprehending criminals, and helping to lock away those who violate the rights of the largely law-abiding population. Law enforcement can more expeditiously perform their duties when they have the trust of their communities. Individuals who trust police officers are more likely to report crimes, assist law enforcement with investigations into criminal wrongdoing, be aware of corruption and official malfeasance, and otherwise participate as active citizens in their communities.

However, restoring trust in law enforcement requires action to be taken. Changes to the structure and police practices of police and sheriffs departments and is a place to start. In the “Relevance of Qualified Immunity Today” section, I wrote, that proposals to reform policing “include, but are not limited to, banning chokeholds, eliminating no-knock raids, defunding the police, creating national standards for police training and deescalation, restructuring Fraternal Order of Police contracts, and changing police culture.” However, reforming qualified immunity may be the most critical factor that will help society achieve its goal of restoring trust in police officers. The two biggest reasons it does so were explained above: reining in the doctrine would substantially reduce the frequency with which individuals’ inherent rights are violated, and would ensure that police officers and others are treated equally before the law. Constitutional liberties like the freedom of speech, the freedom of the press, the right to be free from arbitrary uses of force, and the right to not be searched without proper cause are deeply ingrained in the American legal tradition and are guaranteed by the U.S. Constitution. By removing the defense of qualified immunity, which often serves as a barrier to protecting these liberties, citizens can be more assured of their dignity as free people and as American citizens. Additionally, by synchronizing the legal procedure and penalties in use-of-force lawsuits, for example, by eliminating the qualified immunity loophole which allows police to get away with actions that would be a one-way ticket to prison if performed by someone besides law enforcement personnel, citizens would feel on the same level with police officers. With qualified immunity in place, ordinary citizens may feel that police officers are too often “above the law.” Given that police officers are citizens and members of the community too, it is essential that they are treated like everyone else and held to the same standards as their non-police brethren.

A community that has genuine trust in law enforcement officers who are properly held accountable for their performance and deeds, good and bad, is likely to be more resilient against crime, disorder, and other societal ills. Ben Harris and James Devereaux explain why police accountability is crucial: “When members of society do not trust that law enforcement will be held accountable for its failings, mostly at the expense of a few, then it impacts the ability of law enforcement to protect people. When law enforcement is truly needed, such as to control rioting and violence, trust that any aggressive interventions are fair and reasonable will have already been compromised, which in turn leads to less trust and more potential rioting, which leads to more heavy-handed police interventions and so forth.” Furthermore, they explain why eliminating qualified immunity would be beneficial to the cause of increasing the public’s trust in police in a manner consistent with the incentives-focused framework I develop in the “Interests and Incentives” section: “Abolishing qualified immunity raises the costs of misbehavior. And as the cost of abuse increases so will the reputation of law enforcement as an institution that serves all, as bad actors are priced out of the occupation.” Jay Schweikert, answering a question from Congressman Jerry Nadler, stated that qualified immunity “has undermined the efficacy of the law enforcement community by exacerbating the public’s unfortunately accurate perception that police officers who routinely commit misconduct are not held accountable.” To the extent that changing qualified immunity improves prospects for police accountability, reform in this area could help repair the legitimacy crisis of law enforcement.

The public, by and large, seems to agree with qualified immunity reform, when polled. A majority of American adults believe qualified immunity should be eliminated and that people should be allowed to sue police officers for misconduct. I spell out a few noteworthy data from a 2020 survey in the “Interests and Incentives” section: “63% [are] in favor of eliminating qualified immunity including a majority of Democrats and independents (79% and 64% respectively) and a minority of Republicans (42%). 79% said that a police officer who violates someone’s rights should face consequences even if he or she did not know of the illegality of his or her actions.” It is important to keep in mind that most Americans do not know about qualified immunity and its significance in the criminal justice system. Education may be a requisite first step in eventually realizing major change.

Reasons to Keep Qualified Immunity

There are several arguments in favor of qualified immunity. These arguments and my assessment of their merit are discussed below.

Qualified immunity is essential for police recruitment.

Eliminating qualified immunity, the argument goes, would exacerbate recruitment and retention difficulties in municipal police departments. This is an argument frequently made by police unions and organizations like the Fraternal Order of Police. It has also been embraced by conservative lawmakers. Senator John Cornyn, a Republican from Texas, remarked, “We’re already having trouble recruiting police, and police are retiring early,” implying that eliminating qualified immunity would exacerbate the issue by “making it possible for trial lawyers and people to sue for money.” According to CNN, “Cornyn’s concerns were echoed by a range of rank-and-file Senate Republicans as well as some of the more senior members of the conference.” Senator Tom Cotton, a Republican from Arkansas and one of qualified immunity’s staunchest defenders, wrote, “Few officers would continue policing if, any time they arrest a criminal, they could face protracted litigation.”

Whether the concerns of Mr. Cornyn, Mr. Cotton, and other policymakers skeptical of altering qualified immunity are warranted is an empirical question. In setting about answering it, it helps to look at police recruitment and retention numbers, which more and less show that recruiting and retaining officers has become more challenging for municipal police departments. Although there are no official aggregated nationwide statistics, there is reason to believe that cities, small and large, have faced a recruitment crisis when it comes to police departments. According to a report by the International Association of Chiefs of Police (IACP), 78% of departments said they had difficulties in recruiting qualified candidates, 65% said that not enough potential candidates were applying to join law enforcement, and 75% said that recruitment challenges are greater today than they were five years prior.

Mike Neilon of the Philadelphia Fraternal Order of Police said the past few years have presented police departments with “the perfect storm” of factors that have coalesced to pose concerns for maintaining their ranks. “We are anticipating that the department is going to be understaffed by several hundred members,” he expressed. The numbers corroborate his prediction: the Philadelphia police department has only 6012 officers, 368 less than its target. Senior members of the Philadelphia Police Department and city government are concerned about the low numbers of candidates for recruitment and the high numbers of officers considering leaving or retiring from the department.

A June 2021 report published by the Police Executive Research Forum found that “agencies are currently filling only 93% of the authorized number of positions available.” Departments experienced a 5% decline in hiring, as well as a worrying 18% rise in resignations and a striking 45% increase in retirements between April 1, 2020 and March 31, 2021. “The exodus is affecting departments large, small and in between,” notes Eric Westervelt. Indeed, the problem affects municipal police departments across the nation. In addition to Philadelphia, San Jose, Oakland, San Diego, Chicago, Seattle, Atlanta, Kansas City, and Portland have experienced problems with recruiting and retaining police. This unfortunately comes amidst a wave of crime in large cities. Indeed, rising rates of homicide and other violent crime have gripped urban communities across the country in the last few years.

There are multiple possible explanations for the recruitment and retention crisis. Two culprits for recruitment and retention difficulties are the pandemic that caught departments unprepared to make the switch to virtual training and screening, and a “nationwide discussion about policing” and law enforcement budgets spurred by the death of George Floyd. Recruitment has been tough in recent years due a plethora of factors including bureaucratic mismanagement within police departments, young people entering other professions, and the views of a vocal minority who harbor an antipathy to policing and the officers who take on this profession. Neil MacFarquhar who focused on the retention crisis in Asheville, North Carolina for the New York Times found that police felt that they were being unfairly vilified. Some officers said that they were excluded from social circles or threatened just for being cops amid unruly protests catalyzed by the death of George Floyd. Police departments, in the last two years, have been subject to intense scrutiny, and this at times has contributed to an “anti-cop climate” in which many officers are discouraged from continuing in the law enforcement profession.

Despite the validity of the claim that recruitment has been far from easy for police departments recently, it is dubious to say that repealing qualified immunity would exacerbate the issue. As Jay Schweikert notes, “police officers are nearly always indemnified for any settlements or judgments against them, meaning that their municipal employers, not the officers themselves, actually end up paying.” He cites a well-regarded law review article paper titled “Police Indemnification” by UCLA Professor Joanna C. Schwartz, which reviews data on indemnification in civil rights damages actions in 44 large and 37 mid-sized and small law enforcement agencies in the United States. Professor Schwartz finds that “governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.” If, on average, officers themselves are only personally liable for 2 cents out of every one hundred dollars in settlements and judgments for official misconduct, they will bear a very insignificant part of the burden in a world in which they can be sued for violations of constitutional rights beyond those that meet the “clearly established” standard. Consequently, removing the qualified immunity defense would not do much, if anything, to dissuade officers from staying in law enforcement and recruits from joining, even if it will allow more litigation from those who seek recourse for alleged rights violations.

Removing qualified immunity would also not open officers up to unrestricted and outrageous amounts of litigation and liability because “even in the absence of qualified immunity, it is by no means easy to demonstrate that a police officer violated your constitutional rights.” Litigants who allege serious misconduct on the part of police still need to meet a high burden to show that what officers did violated the Constitution or rights established by statute. Furthermore, officers would still be able to defend themselves on the grounds that what they did was reasonable given the circumstances. Consequently, officers that keep in mind their responsibility to respect the rights and dignity of those they interact with have very little to fear. They will not be driven out of the law enforcement profession. Lurking underneath the argument that qualified immunity is required to maintain recruitment and retention at a reasonable level is the belief that police will only have an incentive to join police departments if there are few, if any, limits on their behavior when interacting with citizens. This criticism seems dubious. Underlying it is the overly cynical view that the assurance that officers will be allowed to act, more or less, with impunity on the job is viewed in the minds of prospective recruits as a requisite factor in their decision to join the ranks of law enforcement.

There indeed seems to be some dip in law enforcement recruitment capabilities in recent years. Some municipalities are struggling to replace retiring officers with younger recruits, due in part to an environment in which the death of George Floyd looms large. The mistake in the argument is the claim that qualified immunity, which dooms litigants from achieving much-needed legal remedies, is needed to sustain department ranks. As Mr. Schweikert notes, although many major professions like doctors, architects, and lawyers are given some sort of immunity protection in certain situations, none of them are granted such a wide latitude to dismiss legal claims against themselves. Making it easier for victims who feel that they have been unjustly treated to pursue their claims in a court of law will not destroy the profession, nor make it significantly more intractable to repair falling recruitment and retention rates.

Police officers sometimes need to use force and make “split‐​second, life‐​or‐​death decisions.”

Police officers indeed have to make split-second decisions when interacting with people in uncertain situations. In fact, developing an intuition about split-second decisions features in a large portion of police officers’ training. Mr. Schweikert paraphrases one argument in support of qualified immunity as follows: “it is both unfair and unwise for courts to second guess these [split-second] decisions, and holding officers personally liable whenever they make the ‘wrong call’ will deter them from carrying out their duties in the first place.” A more nuanced version of this argument is that police officers need discretion to perform their duties properly and that the “clearly established” standard serves as a protection for officers whose actions were reasonable, but resulted in unfortunate outcomes, like injury to a suspect. The Fraternal Order of Police made an argument along these lines after the death of Ma’Khia Bryant in Columbus, Ohio. Police officers, in trying to break up a chaotic fight, noticed a combatant with a knife who may have been about to stab a woman. The police officer fired, accidentally killing Ms. Bryant. The Fraternal Order of Police described the decision as “[a]n act of heroism, but one with tragic results.” They noted that the incident “illustrates that ‘split-second, life-or-death decisions’ are all too real, and none of them are easy.”

The idea that police sometimes need to use force and make life-or-death decisions with only a fraction of a second of time to think is a valid point. It has become painfully clear after the failed police response in Uvalde, Texas that police must act quickly and may need to use lethal force to neutralize an active threat. It is true that cops may need to use force when lives are immediately on the line. However, it does not logically follow that we must acquiesce to a legal system that rarely punishes officers for apparent and egregious violations of individuals’ rights. Officers often need to use force, but a doctrine that protects an officer who accidentally shoots a child after trying and failing to shoot a dog (Corbitt v. Vickers) need not be maintained.

I asked Patrick Jaicomo, an opponent of qualified immunity, “[w]hat [he would] say to critics that say police officers need leeway to thoroughly perform their duties including immunity from legal liability.” Mr. Jaicomo replied that “police are already provided leeway to perform their duties by the Constitution” (emphasis in original). For example, “[t]he Fourth Amendment only prohibits unreasonable searches and seizures. If reasonableness is not enough leeway for police they should consider another line of work” (emphasis in original). Constitutional law jurisprudence already provides limiting principles.

Proponents of qualified immunity are correct when they argue that police need to make split-second, life-or-death decisions in an effort to thwart immediate threats to human lives. However, there are other protections for officers in these cases. The law would still consider police encounters with civilians in excessive force suits holistically, considering whether an officer had a reasonable basis for acting in the way he or she did. Jay Schweikert points to Graham v. Connor, in which the Supreme Court established an “objective reasonableness” standard. The “objective reasonableness” test in Graham is deferential to police and provides that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The fraught circumstances of a criminal situation matter when assessing a police officer’s actions, and those actions must be assessed from the perspective of an officer who is presumptively viewed as reasonable.

Jay Schweikert testified on the topic of misconceptions about qualified immunity before the House Committee on the Judiciary. He said, “Qualified immunity is not a good-faith defense, and it is not necessary to protect the discretion of police officers to make difficult on-the-spot decisions in the field. … The doctrine of qualified immunity only matters when a public official has in fact violated someone’s federally protected rights. That means if a police officer is [sic] has not committed any constitutional violation, then by definition they don’t need qualified immunity to protect themselves because they haven’t broken the law in the first place. And the Supreme Court has made crystal clear that when police officers make good-faith mistakes of judgment such as arresting someone who turns out to be innocent or using force that turns out with the benefit of hindsight to have been unnecessary they have not violated the Fourth Amendment at all so long as they acted reasonably. In other words, deference to reasonable on-the-spot decisions by police officers is already baked into our substantive Fourth Amendment jurisprudence. … The cases where qualified immunity ends up mattering aren’t those where officers made reasonable mistakes of judgment. They’re the cases where officers acted in bad faith, but where courts simply had yet to address that exact scenario.”

Because Graham’s “objective reasonableness” standard asks us to interpret an officer’s actions in a manner favorable to police discretion in the “tense, uncertain and rapidly evolving” situations that typify police work, Barry Friedman, an NYU law professor, and others have criticized the Rehnquist-led majority for creating a “lodestar” that “created this impression that almost nothing is out of bounds.” Nevertheless, Graham’s “objective reasonableness” standard and Tennessee v. Garner’s holding that the Fourth Amendment allows officers to use deadly force when they have a legitimate reason to believe that a fleeing suspect poses an immediate danger to others pale in comparison to qualified immunity, which prevents any semblance of accountability if a similar fact pattern in the relevant jurisdiction is not identified. Force including lethal force is sometimes necessary, but exercising such power cannot always be excused. Otherwise, we risk excusing some egregious violations of constitutional rights such as those discussed herein.

Eliminating qualified immunity would delegitimize law enforcement in the eyes of the public.

Sometimes the argument is made that qualified immunity reform is a broader attempt to hamstring police’s crucial role in society. Senator Tom Cotton wrote that “[a]ny effort to abolish or significantly curtail this indispensable protection is a veiled attempt to defund, defame, and disarm the police in the midst of the worst violent-crime wave in a generation.” Although it is unfortunately true that some who argue for the abolition of qualified immunity also adopt views like a major defunding of police or a reduction in their crime-fighting prerogatives, it is also true that qualified immunity and its more extreme alternatives need not coexist, especially since reforming qualified immunity has the support of a majority of the public while defunding the police definitely does not according to national surveys from the Cato Institute and Pew Research Center.

Although its critics blast qualified immunity as an attempt to delegitimize law enforcement, in fact, the opposite is true. Qualified immunity delegitimizes law enforcement by allowing severe violations of individual rights and in turn tarnishing the public’s perception of law enforcement. I explain why eliminating qualified immunity may boost law enforcement’s public image and help it gain the public’s trust in the “Reasons to Eliminate Qualified Immunity” section, but some points about how qualified immunity affects law enforcement’s legitimacy and position in society are important to note.

In one Cato Institute study, 86% of police officers surveyed agreed that “highly publicized incidents where police had a fatal encounter have made it harder to do their jobs.” As I have previously explained, “A community that has genuine trust in law enforcement officers who are properly held accountable for their performance and deeds, good and bad, is likely to be more resilient against crime, disorder, and other societal ills.” Rebuilding trust starts with ensuring that deadly force is only employed when it is truly needed and within the boundaries established by statute and by the Constitution. Qualified immunity “incentivizes police departments to hang on to bad officers” according to the study, which means that officers who perform their duties honorably have to work alongside those who do not. The misdeeds of the few who fail to respect individuals’ constitutional rights and dignity may be applied through association to the majority of officers who do nothing of the sort, contributing to a crisis of confidence in a crucial pillar of civil society: law enforcement.

The authors of the study, James Craven, Jay Schweikert, and Clark Neily, write, “Good police shouldn’t carry the burden of being lumped together with the proverbial bad apples who wantonly violate people’s rights.” Recently, some law enforcement groups like the Major Cities Chiefs Association (MCCA), the Law Enforcement Action Partnership, and the National Organization of Black Law Enforcement Executives have taken to calling for an end to qualified immunity. This is another example of how alliances sometimes crosscut and shows that police may be beginning to recognize that the judicially-created doctrine delegitimizes their line of work. Weeding out cops who neglect to treat citizens’ with baseline standards of dignity - by eliminating the doctrine of qualified immunity that allows for these abuses - allows cops that perform their job with care and composure to focus on their law enforcement duties, free from those whose actions are in stark contradistinction to the values to which they adhere.

Qualified immunity is a necessary protection against excessive lawsuits.

Supporters of qualified immunity claim that the doctrine is necessary to disincentivize spurious lawsuits that would embroil officers in unnecessary and excessive litigation that would distract them from doing their duties as sworn members of the law enforcement community. In a National Review op-ed, Senator Tom Cotton made the argument that qualified immunity “protects officers from malicious lawsuits that would otherwise financially cripple them and hollow out departments.” Mr. Cotton compared the immunity proffered by the doctrine to the immunity granted to other public officials like judges, politicians, and park rangers. Although this paper has focused on the role of qualified immunity in policing, it is true that qualified immunity applies to a wide range of government officials beyond police. The question of whether qualified immunity for non-police government officials is just or valuable will not be resolved here, but the claim that qualified immunity is needed to protect officials against lawsuits should be subjected to scrutiny because frivolous lawsuits are a problem unrelated to qualified immunity.

As Jay Schweikert explained in a testimony about civil rights litigation reform before the House Committee on the Judiciary, “[T]he doctrine only matters, where (1) a public official has violated someone’s rights, but (2) a court holds that those rights were not clearly established at the time of the violence. So by definition, it [qualified immunity] only makes a difference where the underlying case is meritorious. If a civil rights suit is actually frivolous, in other words if it lacks legal or factual merit, then other tools of civil procedures are perfectly capable of dismissing those claims.” In other words, qualified immunity only applies where a constitutional and/or statutory violation has been determined to occur (in which case qualified immunity would lead to the suit being dismissed on the grounds that the right was not “clearly established”). If a lawsuit lacks merit (if it is spurious or frivolous), it means that no constitutional or statutory violation has occurred, which in turn means that the suit will not proceed to the stage in which qualified immunity is a relevant factor.

Tried Policy

States

Given the inaction of Congress and of federal courts in rolling back qualified immunity, Ilya Somin, a law professor at George Mason University’s Antonin Scalia Law School, recommends that state governments enact reform measures, recognizing that state and local police are responsible for most law enforcement operations in the United States. State legislators have indeed taken the lead in proposing reforms to qualified immunity. In the last two years, lawmakers in Colorado, Connecticut, Minnesota, Illinois, New Mexico, Massachusetts, and New York City have attempted to rein in the doctrine in various ways and with varying degrees of success. This section focuses on the successes of lawmakers in Colorado and New Mexico, the two states which have passed laws that make it easier for litigants to file lawsuits in state courts alleging a violation of rights guaranteed by state laws or the state constitution.

The Colorado General Assembly passed the Enhance Law Enforcement Integrity Act (SB20-217) on June 13, 2020. The legislation is sweeping and covers a broad scope of criminal justice reform measures. For example, it will require most state officers to wear body cameras, requires timely reporting of data relating to use of deadly force and violations of department policy, restricts the use of projectiles and chemical agents by law enforcement against protesters, prohibits chokeholds, establishes penalties for an officer’s failure to intervene when another attempts to unlawfully use deadly force, creates a database cataloging data about officers’ failure to follow protocols, establishes a procedure for the revocation of peace officer certification for failure to complete training, and empowers the Colorado attorney general to prosecute officers who repeatedly violate rights or department policies. The act also makes important changes to the legal framework for lawsuits alleging rights violations. According to the official summary of the bill, “[t]he act allows a person who has a constitutional right secured by the bill of rights of the Colorado constitution that is infringed upon by a peace officer to bring a civil action for the violation.” In other words, the legislation allows litigants in use-of-force claims, for example, to bring suit against police officers who they allege have violated their rights under the Colorado Constitution in state court. The legislation clarifies that qualified immunity shall not be a defense against these civil claims. Furthermore, if an officer is determined to not have acted in good faith, they can personally incur financial penalties equal to 5% of the judgment, up to $25,000. The officer’s employer, usually a municipal police department, would otherwise indemnify the officer for the claim and pay the amount delineated by the judgment.

Colorado State Representative Leslie Herod set out to answer the question of how the Colorado General Assembly’s attempt to reform qualified immunity and policing practices succeeded, whereas elsewhere attempts at change include a previous bill to eliminate qualified immunity met an immovable brick wall. “Thousands of people from across the state were all singing from the same page” as a result of an environment conducive to criminal justice reform in which images of police abusing their powers were widely disseminated on social media and the internet, she said. In fact, Colorado’s policing reform bill was passed no more than three weeks following the death of George Floyd in Minnesota, after which demands for change to police practices were louder than ever. After “16 intense days” of negotiations, progress on the issue was made, and the bill that became the Enhance Law Enforcement Integrity Act was drafted. Ms. Herod says that she is still not sure how a diverse coalition of liberals, some conservatives, civil rights groups like the ACLU, and interest groups representing law enforcement was assembled and mobilized to get SB20-217 past all the hurdles. She simply said, “the system – our great American experiment – actually worked. The pressure coming directly from the people of Colorado demanding change was immense, and it was bipartisan and reached across racial demographics.” Colorado’s bill is an instructive lesson that shows that change is not impossible, despite what it may sometimes seem.

On April 7, 2021, New Mexico passed the New Mexico Civil Rights Act (HB 4), which bars officials from employing the state analogue of the qualified immunity defense in civil rights suits brought under the New Mexico Constitution. The New Mexico Civil Rights Act is similar to Colorado’s Enhance Law Enforcement Integrity Act. Both acts eliminate the state version of the qualified immunity defense and clear the road for litigants to file lawsuits in state courts. Both acts deal with qualified immunity and policing by instituting a means of procuring remedies to violations of rights established by the states’ respective bills of rights in the New Mexico and Colorado state constitutions. Both legislative reforms were also supported by a diverse coalition. The New Mexico Civil Rights Act was backed by civil rights groups like the ACLU of New Mexico, the Innocence Project, the National Police Accountability Project, and the Institute for Justice, as well as the New Mexico chapter of the Charles Koch-backed Americans for Prosperity.

There are conspicuous differences between the two states’ pieces of legislation as well. Firstly, the New Mexico Civil Rights Act eliminates the qualified immunity defense for all state government employees, making it in one important respect broader than the Enhance Law Enforcement Integrity Act, which only applies to law enforcement officers in Colorado. However, in one significant way, New Mexico’s reform is narrower than that of Colorado. At the eleventh hour, HB 4 was altered to include a section (Section 8) that requires government bodies to indemnify employees for judgements brought under the New Mexico Civil Rights Act and pay the entirety of the judgment and all litigation costs. Under the new New Mexico law, “agencies are held vicariously liable for the actions of their employees, while the individual government workers are not at risk of personal liability.” By contrast, Colorado’s law moved slightly away from the prevailing complete indemnification practice by opening up police officers to personal liability for up to 5% of the judgment in cases where they demonstrably acted in bad faith. Under Colorado’s law, the potential liability of a small portion of the judgment means that officials have “skin in the game,” whereas “individual defendants can never be personally liable for the injuries they cause” in New Mexico, observes Jay Schweikert. According to the Washington Post, the removal of the provision that would have allowed litigants to identify individual officers or government employees who violated their rights and open them up to personal liability was done so discreetly that even staunch supporters of the bill, including those who testified before the state legislature, did not initially know that the change had happened. Advocates for HB 4 believe that the bill was changed at the behest of law enforcement lobbies, who had been warning about potential repercussions of the legislation: anti-crime police operations would be derailed, officers would go bankrupt, and members of the law enforcement community would resign en masse. Nevertheless, Mr. Schweikert described the New Mexico Civil Rights reform as a historic and “welcome beacon of hope.”

Law professor Ilya Somin has observed that despite incipient momentum to rework or do away with qualified immunity at the state level, the efforts of state lawmakers have largely gone begging. New Mexico, Colorado, and the other states that have made reforms to qualified immunity are the exceptions, rather than the rule. Mr. Somin postulates that the principal problem with qualified immunity reform is that the concentrated interests of a well-organized minority tend to win over the dispersed interests of a mostly apathetic majority. (See chapter 8 of Charles Wheelan’s Naked Economics titled “The Power of Organized Interests: What economics can tell us about politics.”) Mr. Somin reasons, “While large majorities of the general public oppose QI, most do not follow the details of reform legislation, and only a few voters see QI reform as one of their highest priorities. By contrast, police and other law enforcement interests are well aware of the issue, do follow relevant legislation closely, and are more than willing to punish state legislators who cross them.” A Washington Post analysis has shown that entrenched interests, police unions being chief among them, have managed to ensure that “in state after state, the bills [to undo qualified immunity] withered, were withdrawn, or were altered beyond recognition.” Despite New Mexico being a relative success story in qualified immunity reform, it nevertheless offers a cautionary tale that legislators may end up acquiescing to special interest groups even if they otherwise think that legislative action at curbing qualified immunity is a needed idea. Other state attempts to restrict qualified immunity have suffered worse fates than the New Mexico Civil Rights Act with 35 reform bills dying between April 2020 and October 2021.

Federal

Although a federal attempt to eliminate, roll back, or change qualified immunity has not passed the finish line, Congresspeople have proposed pieces of legislation that would do just that. Congressman Justin Amash sponsored the Ending Qualified Immunity Act (H.R.7085), a short bill that amends 42 U.S.C. § 1983 by eliminating the defense of qualified immunity in civil actions in which rights have allegedly been deprived under the color of law and explicitly repudiates the “clearly established” standard that has become the centerpiece of the judicial interpretation of the doctrine. In a “Dear Colleague” letter from the congressman’s office, Mr. Amash rebukes the Supreme Court’s qualified immunity decisions as being positioned “in contravention of the text of the statute [the Civil Rights Act of 1871] and the intent of Congress. It is time for us to correct their mistake. My bill, the Ending Qualified Immunity, does this by explicitly noting in the statute that the elements of qualified immunity outlined by the Supreme Court are not a defense to liability.” The bill attracted 66 cosponsors: 65 Democrats and 1 Republican. In fact, the bill was tripartisan, being officially backed by several Democrats, one Republican (Congressman Tom McClintock), and one Libertarian (Mr. Amash himself). Despite the support that the legislation attracted, no further action was taken on the bill in the House of Representatives or the Senate, where it was introduced as S.4142 by Senator Ed Markey.

Senator Mike Braun, a Republican from Indiana, sponsored the Reforming Qualified Immunity Act (S.4036), a few weeks after Mr. Amash introduced his bill. Unlike the Ending Qualified Immunity Act, Mr. Braun’s bill modifies, rather than eliminates, qualified immunity. According to a press release accessible on Mr. Braun’s official Senate website, Mr. Braun views the original conception of qualified immunity as advantageous, but believes the doctrine over time has deviated from its original purpose of protecting government employees from liability when they acted in good faith. “The Reforming Qualified Immunity Act re-instates the original qualified immunity standard. Government employees, including law enforcement officers, would be permitted to claim qualified immunity when sued under 42 U.S.C. § 1983 only when: Conduct alleged to be unlawful had previously been authorized or required by federal or state statute or regulation. [Or a] court had found that alleged unlawful conduct was consistent with the Constitution and federal laws.” The Reforming Qualified Immunity Act “attracted no Senate cosponsors and was faced with a strong backlash from some quarters,” I wrote in the “Stakeholders” section.

The George Floyd Justice in Policing Act (H.R.1280) was introduced by House Democrats in 2021. The bill is expansive, and its pros and cons cannot be discussed here for the sake of space. Among its multitudinous provisions are measures to prohibit carotid holds and chokeholds at the federal level, incentivize their elimination in the 50 states by conditioning federal law enforcement funding of their elimination, update police training, prohibit no-knock warrants in certain federal cases, shifting from a willfulness standard to a recklessness standard when evaluating claims of police misconduct, speeding up the adoption of body cameras, creating a national registry for incidents of serious police misconduct, and end qualified immunity at the federal level, according to NBC News. According to Congress.gov, the legislation has 199 cosponsors in the House of Representatives in addition to Congresswoman Karen Bass, who sponsored the bill. H.R.1280 passed in the House on March 3, 2021 by a 220-212 vote, with all but two Democrats voting in favor of the bill and all but one Republican voting against it. No further action was taken in the bill as Senate Republicans and Senate Democrats were unable to resolve their differences of opinion and reach a compromise.

In June 2020, Senate Republicans, led by Senator Tim Scott and aided by Senator Mitch McConnell, proposed a “policing bill that would discourage, but not ban, tactics such as chokeholds and no-knock warrants” according to the Washington Post. The bill was seen as a more restrained version of the Democrats’ legislation, tackling similar issues but offering solutions that Democrats averred were “literally not sufficient” and “woefully inadequate” in the words of two prominent Democratic Senators. Senate Democrats led by Senator Chuck Schumer used the procedural filibuster to block debate on the Republican proposal. Several frustrating rounds of negotiations took place over more than twelve months. In August 2021, Politico reported that qualified immunity reform, which was “one of the main points of contention in the police reform negotiations,” was withdrawn from the talks between Republican and Democratic negotiators. This development was much to the chagrin of some progressives including Congresswoman Cori Bush who “called the removal of qualified immunity a redline.” Other Democrats like House Majority Whip Jim Clyburn were willing to make concessions in the effort to seek a finalized agreement. The next month, however, talks collapsed amid legislative gridlock with the parties unable to reach a consensus on what ought to be included in the bill.

I asked Patrick Jaicomo about the likelihood that federal legislators will take action to revise the qualified immunity doctrine: “Do you think that public appetite for criminal justice reform will result in action aimed at reforming qualified immunity, or will hurdles like police unions and prosecutors concerned with crime stymie efforts at reform?” Mr. Jaicomo’s answer was equivocal: “It’s hard to guess what public opinion will accomplish. It could be everything or it could be nothing. We are still committed to pushing for reforms in courts, Congress, and the public square. But I have to admit that I am less optimistic about congressional reform given that all of the protesting that took place after George Floyd was killed apparently was not enough to get Congress to find a solution.”

Policy Options

Judicial

There are two principal ways to approach this issue: by means of the judicial branch and by means of the legislative branch. Both ways are important, but going to the judicial route may be the best way to start. There are two reasons why. Firstly, engaging the judiciary by fighting on behalf of victims who have had their rights violated by those in positions of power can help deliver immediate relief to such individuals who have no place but the courts to which to turn. Patrick Jaicomo, who works as an attorney at “a public interest law firm which has represented clients before federal courts including the Supreme Court,” tells me that “fundamentally, as attorneys, our first goal is to serve our clients. And filing these lawsuits to vindicate the rights of our clients and make them whole is independently valuable to both them and us. If it weren’t, public interest lawyers should consider another line of work.”

Secondly, the judiciary is the branch of government responsible for inventing the qualified immunity doctrine, which has metastasized into a major problem as courts keep adding to its jurisprudential morass. I asked Mr. Jaicomo about “what role [he] see[s] litigation playing in not only helping individual clients procure compensation for police abuses, but also at chipping away at … ‘a confusing patchwork of immunity doctrines’ (from ‘Constitutional GPA’ by Miller, Cairns, Bidwell, Jaicomo, and Morton) like qualified immunity.” He replied, “Since qualified immunity is a legal doctrine, litigation is hugely important for shaping its contours. Obviously, Congress is another avenue for change—one that we also pursue. But the Supreme Court created this problem in Harlow v. Fitzgerald (and Pierson v. Ray before that), so bringing legal challenges is one way to fix it, even if incrementally.”

That being said, what can courts do to change or get rid of qualified immunity? Lower courts cannot do a whole lot. In his Cole v. Carson dissent, Judge Don Willett, who has served since 2018 on the Court of Appeals for the Fifth Circuit, expressed his disappointment at modern qualified immunity doctrine, but said that there was little he could do to improve it: “[A]s a middle-management circuit judge, I take direction from the Supreme Court. And the Court’s direction on qualified immunity is increasingly unsubtle. We must respect the Court’s exacting instructions— even as it is proper, in my judgment, to respectfully voice unease with them.” And voicing unease he has done, but he has been joined by few of his federal court colleagues. It is clear that the judicial solution to the qualified immunity mess must come from the Supreme Court. However, commentators including Mark Joseph Stern and Ilya Somin have expressed skepticism that the high court will be fixing the qualified immunity doctrine anytime soon, pointing to two cases - Rivas-Villegas v. Cortesluna (discussed in “Overview”) and City of Tahlequah v. Bond - in which no justices dissented from the Supreme Court overturning lower courts’ findings that officers were not entitled to qualified immunity.

Not everyone is in agreement with this line of reasoning though. Patrick Jaicomo, an expert on the high court’s qualified immunity jurisprudence, believes that a major recalibration of qualified immunity by the judiciary could be on the horizon. “Three sitting justices of the Supreme Court – Clarence Thomas, Sonia Sotomayor, and Neil Gorsuch – have at times articulated skepticism about the extent to which qualified immunity is granted in cases involving interactions between police officers and citizens,” I wrote in my communication to Mr. Jaicomo. “Notably, Justice Thomas, in dissenting from the denial of certiorari in Baxter v. Bracey, criticized federal courts’ QI jurisprudence and what he sees as a deviation from statutory text. What do you view as the prospects for federal courts scaling back the doctrine, and how would you contrast that with prospects of legislative-driven reform?” In responding to my query, Mr. Jaicomo referred me to a law review article he co-authored with Anya Bidwell that was recently published in the Journal of Law & Criminology.

In “Recalibrating Qualified Immunity: How Tanzin v. Tanvir, Taylor v. Riojas, and McCoy v. Alamu Signal the Supreme Court’s Discomfort with the Doctrine of Qualified Immunity,” Mr. Jaicomo and Ms. Bidwell find promise in three Supreme Court decisions since 2020 that may be harbingers of a judicial rollback of qualified immunity. Before 2020, they write, the Supreme Court assiduously and almost unanimously rejected appeals that challenged the application of qualified immunity. Justice Clarence Thomas was the only justice who occasionally dissented from the denial of these petitions. He frequently “write[s] separately … to note [his] growing concern with [the Supreme Court’s] qualified immunity jurisprudence,” its deviation from common law, and its failure to conduct a historical analysis with respect to the Civil Rights Act of 1871 as he did in Ziglar v. Abbasi. Justice Thomas reiterated his concerns with qualified immunity when he dissented from the denial of certiorari in Baxter v. Bracey, a case in which a police dog bit Alexander Baxter when he was being apprehended even though he had already raised his hands and was surrendering to officers. Mr. Baxter sued alleging that his Fourth Amendment rights were violated, but the Court of Appeals for the Sixth Circuit concluded that the officers could not be held liable under the “clearly established” test even though their actions were unconstitutional. No justice, save Justice Thomas, would have granted Mr. Baxter’s petition. In his dissent from the denial of certiorari, Justice Thomas expressed his most powerful words against qualified immunity, which he said “stray[s] from the statutory text” and whose “clearly established law” standard has no historical or common law basis.

Beginning in 2020, justices in addition to Justice Clarence Thomas have indicated that they want the often outrageous applications of qualified immunity to be curtailed. Taylor v. Riojas was a case in which a Texas prisoner was forced to spend six days naked in prison cells that were covered with feces and sewage, were unreasonably cold, smelled of an appalling odor, had no bed or toilet, and had only contaminated water. The case made its way to the Court of Appeals for the Fifth Circuit, which ruled that although the prison guards’ conduct violated the Eighth Amendment’s disallowance of “cruel and unusual punishment,” they could not be held personally liable because there was no “clearly established law” that prohibited officials from housing inmates in the particular type of inhumane conditions at issue in Taylor “for only six days.” “The Fifth Circuit erred in granting the officers qualified immunity on this basis,” says the unsigned per curiam opinion. “[N]o reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.” The Supreme Court granted the petition for certiorari, vacated the decision of the Fifth Circuit, and remanded for further proceedings. In ruling the way that it did, the high court “breathed new life into” Hope v. Pelzer, a 2002 case before the Rehnquist court that concerned an Alabama prisoner who was cuffed for seven hours to a hitching post in the heat without any food or sufficient water and was taunted by prison guards. A John Paul Stevens-led Supreme Court majority reversed lower courts’ decisions and found that the prison officials were not entitled to qualified immunity due to the egregiousness of the offense and obviousness of the constitutional violation that it entailed. The Supreme Court “doubled down on Taylor just three months later with its decision in McCoy v. Alamu” by using summary reversal to grant certiorari, reverse the Fifth Circuit’s decision, and remand the case in which a prison official sprayed a chemical agent in the face of a prisoner for no apparent reason. According to Patrick Jaicomo and Anya Bidwell, this shows that Taylor was unlikely to have been an aberration and could signal the beginning of a contemporary shift to a more restrained version of qualified immunity that is more favorable to litigants alleging police abuse.

Finally, although the case Tanzin v. Tanvir is not about qualified immunity, it “addressed the analytical foundation of the doctrine” according to Mr. Jaicomo and Ms. Bidwell. The Supreme Court, in a unanimous decision authored by Justice Clarence Thomas, held that litigants may seek “to obtain money damages against federal officials in their individual capacities” under the Religious Freedom Restoration Act (RFRA) of 1993. The case involved Muslims who alleged that agents working for the Federal Bureau of Investigation placed them on the No Fly List in retaliation for refusing to act as informants and provide information about individuals in their communities. In its ruling, the court expanded the definition of “government” to include “officials” in certain contexts and ruled that damages against individual government officials constitute “appropriate relief” under the RFRA for cases in which the First Amendment right to freely practice religion is violated. Patrick Jaicomo and Anya Bidwell explain that “[t]he cases cited by Justice Thomas [in Tanzin] not only establish the historical availability of damages, but the historical unavailability of court-created immunities” (emphasis in original). This could have weighty implications for the court’s qualified immunity jurisprudence. “Tanzin makes clear that policy cannot permit the Court to create special protections for government officials—no matter how good the policy reasons. Further, Tanzin is explicitly connected by analogy to constitutional claims and the historical backdrop of Section 1983. … Combined with the Court’s decisions in Taylor and McCoy, Tanzin signals that the Court’s 2020 term could be the beginning of the end for qualified immunity.”

Legislative

The other means of reform is by working through Congress. There are some advantages with this approach. Firstly, the judicial interpretation of qualified immunity emerged out of what critics say is a mistaken interpretation of the Civil Rights Act of 1871 and 42 U.S.C. § 1983. Legislation can be used to clarify that that a right has not been “clearly established” at the time it was deprived by a government official is not an acceptable defense to liability under section 1983 of the U.S. Code. This was the approach of the Ending Qualified Immunity Act (H.R.7085). Secondly, notwithstanding Mr. Jaicomo’s well-informed and tenable optimism about judicial remedies to the doctrine in the near future, there may not be enough justices with a desire to roll back qualified immunity on the Supreme Court. We might place the upper bound for justices skeptical at how extensively qualified immunity has been applied at four: Justice Clarence Thomas, Justice Sonia Sotomayor, Justice Neil Gorsuch, and Justice Ketanji Brown Jackson. Out of the four, only Justice Thomas has called for revisiting the question of whether the doctrine as a whole is valid, whereas the rest have expressed dissatisfaction with how far-reaching it has become. Thirdly, law professors Aaron L. Nielson and Christopher J. Walker strongly recommend legislative, as opposed to judicial, reform on the grounds that judicial action could upset the applecart of qualified immunity’s delicate entanglements with principles of federalism. “[F]ederalism dimensions counsel in favor of statutory stare decisis by the federal judiciary and careful, evidence-based reform by state legislatures and Congress. In short, because qualified immunity is the product of federalism-infused statutory interpretation that has now generated significant reliance and robust experimentation, it follows that qualified immunity’s critics should stop looking to the Supreme Court for judicial action. They should instead ‘take their objections across the street, [where] Congress can correct any mistake it sees.’”

Although neither Congressman Justin Amash’s Ending Qualified Immunity Act (H.R.7085) nor Senate Democrats’ George Floyd Justice in Policing Act (H.R.1280) cleared both houses of Congress, there have since been attempts to rein in the doctrine. Congresswoman Ayanna Pressley in the House of Representatives, who cosponsored Mr. Amash’s bill, and Senator Ed Markey in the Senate reintroduced the Ending Qualified Immunity Act as H.R.1470 and S.492 in the 117th Congress with a very similar text to the original bill. The House bill has 41 cosponsors, and the Senate version has been cosponsored by Senator Elizabeth Warren and Senator Bernie Sanders. It remains to be seen whether this iteration of the legislation will succeed and become law.

Conclusions and Recommendations

Based on the analysis of the advantages and disadvantages of qualified immunity conducted in the “Current Stances” section, I conclude that the doctrine of qualified immunity should be eliminated entirely, and failing that should at least be substantially reformed and restricted.

The following are recommendations to various stakeholders that are based on an examination of previous policy attempts (“Tried Policy”) and options moving forward (“Policy Options”).

Recommendations to researchers and journalists:

  1. Researchers, writers, and journalists should work to establish a meta-framework for criminal justice policy analysis that adequately incorporates a study of actors and incentives. This meta-framework should take seriously the role that economics tools can play in public policy research. Some writers have begun to observe the fact that the structures of criminal justice is one area where not very much analysis from the economic perspective has been applied and have begun to fill in the gap. (See Radley Balko’s article “Public choice theory is crucial to understanding the criminal justice system.”) Researchers, writers, and journalists should recognize that this is a promising area for future research that could have interesting implications for public policy development with regards to qualified immunity, as well as incarceration, civil asset forfeiture, drug searches, county sheriff elections, and more.
  2. Writers and journalists should alter the way in which they write about qualified immunity and other criminal justice issues. Too often policy analysis and especially journalism about criminal justice is either moralistic or episodic. That is, an article about criminal justice reform either takes a position that the authors argue is the most just, equal, or reasonable. Alternatively, authors sometimes merely report the facts of policy deliberations such as quotes from party leaders, roll call votes, and major solutions or themes discussed or proposed. Digging deeper and establishing a coherent theory of the incentives facing stakeholders (individual police officers, police unions, state legislatures, U.S. Congress, etc.) in the qualified immunity debate is advisable. I will leave it to others to build on my preliminary examination of the incentive structures.

Recommendations to the American public:

  1. The American public should seek out to learn more about qualified immunity. Although it is difficult to assess what percentage of the population is aware of the fundamentals of the doctrine, I would conjecture that it is a small minority. This research paper is a good place to start to learn about qualified immunity, but there are other useful resources as well. See, for example, Nathaniel Sobel’s article “What Is Qualified Immunity, and What Does It Have to Do With Police Reform?” or Jay Schweikert’s policy analysis “Qualified Immunity: A Legal, Practical, and Moral Failure.” Reuters’s four-part investigation whose first part is available at this URL, provides a gripping introduction to the doctrine and is replete with images, videos, and charts. It won a Pulitzer Prize in Explanatory Reporting.
  2. After immersing themself in the qualified immunity, Americans should voice opinions about the issue. When polled, a majority of the public believes that it should be possible for individual officers to incur liability for violations of constitutional and statutory rights, including and up to the complete elimination of the doctrine that precludes such liability if the deprived right in its unique fact pattern was not “clearly established.” However, it is unclear whether a public that passively supports doing away with qualified immunity will be enough to culminate in change in the halls of Congress. Being more vocal about qualified immunity specifically (rather than policing reforms broadly) and crafting demands around this issue could help level the playing field, if only a little.
  3. The segment of the American public that opposes qualified immunity should find a way to collectively organize better. My incentives-centered analysis finds that pro-qualified immunity interest groups like police unions will win out in policy debates because they are small and well-organized. Opponents of qualified immunity need to find a consistent way to overcome collective action problems and articulate clear demands in an effort to influence the decisions of state and federal legislators. The success of Colorado’s Enhance Law Enforcement Integrity Act was propelled by a crosspartisan coalition of civil liberties groups, conservative advocacy organizations, and some groups aligned with law enforcement. Interested stakeholders across the country should look to replicate this model in their own states.

Recommendations to federal courts:

  1. Unless a judge is one of the nine justices on the Supreme Court, jurists’ hands are largely tied with regard to making fundamental changes to qualified immunity jurisprudence. They must follow the “exacting instructions” of the Supreme Court. Following the lead of Judge Don Willett, however, judges on Circuit Courts of Appeals can and should “respectfully voice unease” with the Supreme Court’s direction on its immunity doctrines. The qualified immunity doctrine needs a “thoughtful reappraisal,” and federal judges’ concurrences or dissent to this effect, even if not legally actionable, could have a powerful impact.
  2. Chief Justice John Roberts and Associate Justices Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson should follow the lead of Associate Justice Clarence Thomas in questioning the judicial foundations of qualified immunity. Justices Sonia Sotomayor, Neil Gorsuch, and Ketanji Brown Jackson have, at times, questioned the ways in which qualified immunity has been applied, particularly in cases of apparent and abhorrent abuses of individual rights. However, none have questioned whether the doctrine should ultimately exist or whether it comports with the original meaning of the Civil Rights Act of 1871 and the common law in the postbellum nineteenth century. The origins of qualified immunity lie in the opinions of the court in Harlow v. Fitzgerald and somewhat in Pierson v. Ray. If the doctrine is to be rolled back, it is primarily the responsibility of the institution that birthed it.

Recommendations to Congress:

  1. Members of Congress who are interested in qualified immunity reform should speak to their colleagues and work to build a bipartisan coalition that promotes the issue as the centerpiece of any future police reform bill.
  2. Congress should amend federal civil rights statutes by explicitly stating that qualified immunity is not a legitimate defense for police officers for liability for violating constitutional or statutory rights even if those rights do not surpass the vague bar for being “clearly established.” Ben Sperry explains, “Congress need not wait. They can change the law any time by amending 42 USC § 1983 to clarify there is no immunity for police officers that engage in unreasonable force.”
  3. To that end, the House of Representatives should pass H.R.1470, which was sponsored by Congresswoman Ayanna Pressley of Massachusetts, and the Senate should pass S.492, which was sponsored by Senator Ed Markey of Massachusetts. The President of the United States should sign this Ending Qualified Immunity Act, a simple, single-issue bill that would offer the aforementioned clarification about immunity, reject the so-called “clearly established” test, and upend the flawed judicial interpretation of qualified immunity under the statutes related to landmark civil rights legislation.
  4. Although there are merits to bundling qualified immunity reform into broader criminal justice reform bills, there are detriments to this approach as well. To avoid qualified immunity reform being tangled into other, possibly more controversial, attempts at policing reform, I suggest making legislation on qualified immunity a single-issue bill. This is not an absolute rule, and qualified immunity reform by Congress by any means would be welcome.
  5. Congress should reinforce safeguards besides qualified immunity that protect police officers when they make unfortunate mistakes in the performance of their duties when their actions were reasonable given the circumstances, performed in accordance with their training, and showed respect for the individual liberties and dignity of the civilians with whom they interact. Perhaps, Congress should consider codifying the “objective reasonableness” standard established in Graham v. Connor into statute. Critically, the “objective reasonableness” standard “has nothing to do with qualified immunity” as Jay Schweikert explains. “In Graham, the Court was simply explaining that unless an officer acts objectively unreasonable, under the circumstances known to them at the time, they haven’t violated the Fourth Amendment at all.” By contrast, qualified immunity would shield a police officer from liability even after finding that they committed a Fourth Amendment violation, for instance. Qualified immunity and Graham’s “objective reasonableness” standard operate on two different levels. This research project finds substantial reason to repudiate the former. I offer no firm conclusion on the latter, but lawmakers concerned about safeguarding police’s crucial role in maintaining order and protecting members of their community could consider codifying such protections that are currently only developed in case law, while still working toward the reform or elimination of qualified immunity. To be clear, though, the contents of this paper “should not be read to endorse … reliance on Graham and Garner” as Professor Joanna C. Schwartz writes in her own article about qualified immunity.

Recommendations to state legislatures:

  1. In the face of federal inaction on this issue, state legislators should move quickly to introduce bills eliminating the state equivalent of qualified immunity. These bills can either be a part of a larger policing reform package as was the case with Colorado’s Enhance Law Enforcement Integrity Act (SB20-217) or can be introduced as a standalone measure.
  2. State legislators should collaborate with other members of their party caucus representing various constituencies and interests. They should also be unafraid to reach out across the aisle to legislators of the other party.
  3. State legislators should attempt to assemble cross-partisan coalitions consisting of civil liberties groups, conservative advocacy organizations, and minority rights groups, as well as liberals and conservatives of all stripes. This was the case in Colorado, where SB20-217 was supported by the ACLU, Black Lives Matter activists, and even some law enforcement lobbies. The details of the legislation were hammered out within sixteen days, and the bill passed the Colorado General Assembly and was signed by Governor Jared Polis shortly thereafter. A similar phenomenon happened in New Mexico. In the “Tried Policy” section, I wrote that the “New Mexico Civil Rights Act was backed by civil rights groups like the ACLU of New Mexico, the Innocence Project, the National Police Accountability Project, and the Institute for Justice, as well as the New Mexico chapter of the Charles Koch-backed Americans for Prosperity.” Bringing together groups that ordinarily do not find themselves in agreement about controversial issues could maximize the chances that a bill will be supported by a majority of both houses of a state legislature.
  4. State legislators should attempt to pass a qualified immunity reform bill quickly. To that end, they should avoid getting bogged down in tangential subjects while negotiating and focus on the central issue of qualified immunity and the accompanying “clearly established” test. Colorado passed SB20-217 within three weeks after George Floyd was killed by a Minneapolis police officer due to the speed with which negotiators decided upon a legislative package. By contrast, federal attempts at criminal justice reform quickly become more and more untenable, and the possibility of identifying and acting upon areas of agreement disintegrates as the negotiations go on for months.

Recommendations to political parties:

  1. American political parties, large and small, should incorporate provisions in their party platforms that call on Congress to reform or repeal the modern iteration of qualified immunity.
  2. The Democratic Party should justify qualified immunity reform in their messaging and communications on the grounds that it denies justice to many individuals who have endured tremendous violations of their civil rights.
  3. The Republican Party should justify qualified immunity reform in their messaging and communications on limited-government grounds. Reforming qualified immunity would limit the power of government officials to violate the constitutional liberties that have been well-ingrained in the American legal system since the time of the Founding Fathers. They can also make the case that qualified immunity is a form of judicial activism - an example of legislating from the bench.

Acknowledgments

The Institute for Youth in Policy wishes to acknowledge Lucas Yang, Paul Kramer, Sydni Faragalli, Riya Kataria, and other contributors.

The author would like to thank Patrick Jaicomo, an attorney with the Institute for Justice, for responding to his communication requesting comment on his questions about the doctrine of qualified immunity and for permitting him to publish his responses.

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