• Kyle van Oosterum

Qualified Immunity: When the Police Protect and Serve Themselves

The legal doctrine of “qualified immunity” is currently under serious public scrutiny. Simply put, qualified immunity protects government officials, such as police officers, from liabilities (like civil lawsuits) for any actions taken on the job; except those that violate “clearly established law”. There is no denying that police officers have a difficult job. However, their worryingly expanding role in public life and frequent instances of brutality against black people has led United States senators to introduce a resolution calling for the elimination of qualified immunity for law enforcement officials. Whether or not this resolution passes in the US Senate, it is worth understanding why qualified immunity exists as a legal doctrine to understand exactly why it must be revoked.


Where does qualified immunity come from?


Perhaps the clearest starting point for the use of the qualified immunity doctrine dates back to the 1967 Pierson vs. Ray case. The details of this particular Supreme Court case reveal the racially tinged nature of the doctrine of qualified immunity. According to the case transcripts, white and black clergymen were on a “prayer pilgrimage” to promote racial integration when they attempted to use a segregated bus stop in Mississippi. Respondent police officers this matter was actually reported to law enforcement charged and arrested these clergymen for supposedly “breaching the peace”. When the clergymen tried to sue the officers for violating their constitutional rights and unlawfully arresting them, the jury nevertheless ruled in favor of the police officers who they believed were acting in “good faith”, that is, acting reasonably in an unclear legal situation.


Nowadays, the doctrine of qualified immunity has been expanded to allow officers to blatantly breach people’s constitutional rights unless the victim can demonstrate that their “clearly established” rights have been violated. Notwithstanding the burden being placed on the victim rather than the transgressor, the doctrine has led some to question whether it is simply a mechanism for state officials to avoid accountability. This is likely because the “clearly established” standard is incredibly difficult to satisfy. What that phrase stipulates is that the victim must be able to demonstrate that a previously decided case involves the same “specific context” as the victim’s and the same “particular conduct” that they have experienced.


In practice, the “clearly established” stipulation means that the smallest matter of circumstance can allow a police officer to completely avoid damages or lawsuits. One of most infamous examples of how this narrow specificity has enabled officers to avoid litigation involved Malaika Brooks. In 2004, Brooks was driving her child to school when she was pulled over for speeding. When she refused to sign a speeding ticket, the officers asked her to step out of the car and threatened to taser her. Brooks, who informed them that she was pregnant, was nevertheless tasered repeatedly before being handcuffed. Brooks attempted to pursue charges against the police officers only for the judges to invoke qualified immunity as there were no “clearly established” precedents for such use of tasers. The case was dismissed, and the cops avoided accountability for what many people would regard as a serious violation of Brooks’ rights.


There is a natural but not unproblematic tendency to categorise these cases as isolated or rare occurrences. Unfortunately, data that exists on this supports a very different conclusion. According to a Reuters investigation, between 2017 to 2019 alone, police officers won over 50 percent of cases in which an appeal to qualified immunity was made. These numbers have actually been on the rise compared to previous years. Faced with odds like these, the lawyers of these plaintiffs are actually becoming more reluctant to even tackle these cases. Plaintiffs are so unlikely to win that one judge has described these cases as a “heads defendants win, tails plaintiffs lose” situation.


Can qualified immunity be justified?


With mounting pressure from the media, the general public, and the previously mentioned resolution to revoke qualified immunity, it might be asked how one can justify this controversial, racially loaded legal doctrine. To promote a fair discussion of this issue it will be helpful to evaluate three distinct claims that are often made in support of qualified immunity. The first claim is that qualified immunity protects police officers who would be unable to afford the legal fees from civil lawsuits. While there are likely to be severe financial burdens resulting from lawsuits, these are rarely ever paid out by police officers themselves. Rather, the cost is often passed onto the police union or by insurance policies from the officer’s municipality.


The second claim in defense of qualified immunity is that it protects police officers from the burdens of the process of “discovery” that is, finding and collecting documents and attending long trials. Unfortunately, this claim does not have much empirical support. A study in the Yale Law Journal revealed that appeals to qualified immunity were usually raised after the process of discovery. Only about 13 percent of appeals to qualified immunity were raised before discovery. In fact, these appeals are more likely to be granted at the judgment stage of the trial where the verdict is decided upon.


The third claim is that qualified immunity allows police officers to do their job effectively without the threat of being sued on duty. Many law enforcement officials themselves will raise this claim. Very few people would deny that police officers have a very difficult job, exposing themselves to high-risk situations where quick decisions often must be made under conditions of uncertainty. Having to worry that their actions might be prosecuted might be a source of undue stress and hamper their effectiveness on the job. Once again, this claim simply does not check out. Several studies have been conducted that show police officers on duty rarely cite a “fear of being sued”. In addition, many police officers themselves argue that the possibility of civil lawsuits is a necessary deterrent for unlawful behaviour on their part.


Revoking qualified immunity


With these three suspect claims, it should be apparent why qualified immunity cannot be justified. The protection of qualified immunity enables police officers to avoid accountability and unfairly places the burden on the victim to demonstrate their rights have been violated. Though ordinary lawsuits require a plaintiff’s lawyers to provide evidence against the defendant in question, civil lawsuits against officers are hardly fought on the same legal grounds. More often than not, qualified immunity functions not as a mechanism to effectively allow officers to serve the public good, rather, it instills the belief that they are in fact above the law. This leads some to speculate whether qualified immunity is really just qualified impunity as the odds are so often stacked against the people whom officers are tasked to “serve and protect”.


If it is true that the law is a vehicle for social change, then it is easy to make the case that this legal doctrine be revoked. In fact, many petitions calling to end qualified immunity have circulated online and garnered thousands of signatures. However, it is unlikely that these bills will be passed any time soon, especially because President Trump himself is opposed to these reforms. Nevertheless, there is widespread support for the revocation of qualified immunity from senators, the public, and even two Associate Justices of the Supreme Court (Sotomayor and Thompson) who criticise the mentality of “shoot first, think later” that qualified immunity often legitimises.


The calls for the revocation of qualified immunity can be seen as part of a larger ideology of incrementalism, that is, the idea that social change must be performed gradually, in a step-by-step manner. Like the use of body cameras, the revocation of qualified immunity is likely to increase accountability and reduce the sense of impunity to which police officers often feel entitled.


Whether or not this ideology is justified, the future of policing raises profound concerns about what is required by the law and what is demanded by morality. Simply put, just because the law happens to be a certain way does not imply that it ought to be that way. Currently, the legal doctrine of qualified immunity is in very strong tension with a principle of moral parity that suggests citizens should be treated as the moral equals of state officials. Absent is a strong argument for why state officials deserve special immunity; merely asserting the existence of a legal doctrine to support this claim would be to commit the fallacy of assuming that what is legally acceptable is what is morally just.


Perhaps what makes a good and legitimate law is not whether the state apparatus is capable of enforcing it through coercion, but rather, whether the law provides a compromise with which everyone can peacefully live. The doctrine of qualified immunity falls far short of this compromise and creates an unequal legal playing field. For these reasons, qualified immunity must be revoked.