What is Qualified Immunity?
“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”
—Chief Justice John Marshall, Marbury v. Madison, 1803
The substance of constitutional rights is meaningless if state actors can violate those rights with impunity. Such rights would become, in James Madison’s words, “parchment barriers”—symbolic commitments to individual liberty that do nothing in practice to deter or prevent unlawful misconduct by government agents. Unfortunately, most members of law enforcement operate today in a culture of near-zero accountability. Police officers rarely face meaningful consequences for their misconduct, and the public’s accurate perception of this fact has contributed to what can best be described as a crisis of confidence in our nation’s law enforcement.
Accountability has therefore become a top priority for anyone interested in criminal justice reform.
And while this culture of near-zero accountability has many causes, by far the most significant is qualified immunity. Qualified immunity is a judicial doctrine created by the Supreme Court that shields state actors from liability for their misconduct, even when they break the law. Under this doctrine, government agents—including but not limited to police officers—can never be sued for violating someone’s civil rights, unless they violated “clearly established law.” While this is an amorphous, malleable standard, it generally requires civil rights plaintiffs to show not just a clear legal rule, but a prior case with functionally identical facts.
In other words, it is entirely possible—and quite common—for courts to hold that government agents did violate someone’s rights, but that the victim has no legal remedy, simply because that precise sort of misconduct had not occurred in past cases. In the words of Don Willett, a federal judge on the U.S. Court of Appeals for the Fifth Circuit: “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.”
Wrongdoing Without a Legal Remedy
There are countless, tragic examples of how this works in practice, but the case of Corbitt v. Vickers is especially illustrative. In this case, police officers pursued a criminal suspect into an unrelated family’s backyard, where one adult and six children were outside. The officers demanded they all get on the ground, everyone complied, and the police took the suspect into custody. But then the family’s pet dog walked into the scene, and without any provocation or threat, one of the deputy sheriffs started firing off shots at the dog. He repeatedly missed, but did strike a ten-year-old who was still lying on the ground nearby. The boy suffered severe pain and mental trauma and has to receive ongoing care from an orthopedic surgeon.
Amy Corbitt, the boy’s mother, brought a civil rights suit against Michael Vickers, the officer who shot her son, but Vickers asked the court to dismiss the case because of qualified immunity. The district court judge actually denied this request, for the sensible-seeming reason that the unlawfulness of this conduct should have been “very obvious to every objectively reasonable officer” in Vickers’ situation. But a panel of appellate judges reversed this decision, holding that Vickers was entitled to qualified immunity, just because no prior judicial decision involved “the unique facts of this case.” So the Corbitt family was left without any remedy.
From a legal perspective, qualified immunity is especially controversial because—in addition to being illogical and unjust—the doctrine is fundamentally unlawful. Theoretically, qualified immunity is supposed to be an interpretation of our primary federal civil rights statute, currently codified at 42 U.S.C. § 1983, and thus generally called “Section 1983.” This statute was first passed by the Reconstruction Congress as part of the 1871 Ku Klux Klan Act, which itself was part of a series of “Enforcement Acts” designed to help combat lawlessness and civil rights violations in the post-war South.
The statute itself is fairly straightforward. It says that any government agent who violates someone’s federally protected rights “shall be liable to the party injured.” In other words, Section 1983 allows anyone whose constitutional rights are violated by a state actor to bring a lawsuit against them in federal court to get damages for their injury. And as even the Supreme Court has acknowledged, “the statute, on its face, does not provide for any immunities.”
Limited Common Law Origins
So where did qualified immunity come from? The Supreme Court has primarily justified the doctrine as an interpretation of common-law immunities for government officials that were supposedly well-established when Section 1983 was passed in 1871. In other words, according to the Court, these immunities were such well-understood background legal principles at the time that—even though the law itself says nothing about them—they should nevertheless be understood to apply to the statute.
To be clear, there’s nothing wrong with this sort of argument in principle. Suppose a legislature passed a statute that said: “Any person who willfully discharges a firearm at another shall be guilty of a felony, and imprisoned for not more than 10 years.” This statute says nothing about an exception for self-defense, but self-defense is such a well-established part of our legal tradition that courts would probably assume the legislature did not intended to negate it.
But the problem is that, as a historical matter, nineteenth-century common law did not actually include anything like the sort of across-the-board defense for all public officials that characterizes modern qualified immunity. The leading scholar on this subject is Will Baude, a Chicago Law School professor. His recent article demonstrates that the background legal rule, both in the Founding Era and throughout the nineteenth century, was strict liability for government agents who committed constitutional violations. In other words, if a government agent was sued for harm they caused in the course of carrying out their duties, it was no defense that they believed they were acting lawfully.
To be sure, there were certain “good faith” defenses in the nineteenth-century common law, and there’s some disagreement about their scope. Will Baude argues that “good faith” was generally only relevant when the lack of good faith was an element of a particular claim. For example, at common law, if someone brought a “false arrest” suit against an officer, they had to show the officer wasn’t acting in good faith. But that rule was simply part of the common-law element for false-arrest claims; it wasn’t because “good faith” was a general defense for all public officials.
A forthcoming article by Scott Keller, the former solicitor general of Texas, argues more broadly that nineteenth-century government officials enjoyed a freestanding immunity for discretionary acts—what was then called “quasi-judicial” immunity—unless they acted with malice or bad faith. Will Baude has already posted a response to this piece, in which he argues that this sort of immunity only protected quasi-judicial acts like election administration and tax assessment, not ordinary acts of law enforcement.
But even Scott Keller agrees that nineteenth-century common law can’t justify modern qualified immunity, for one key reason—qualified immunity today is not a good-faith defense. A public official will receive qualified immunity unless they violated “clearly established law,” but this standard has nothing to do with whether the defendant was actually acting in good faith; all that matters is whether the facts in the case are sufficiently similar to the facts of prior decisions.
The clearest example of this point is another case called Jessop v. City of Fresno, in which the Ninth Circuit granted immunity to police officers who were alleged to have stolen over $225,000 in cash and rare coins while executing a search warrant. Obviously these officers were not acting in good faith, and no one contended otherwise. But the court said that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers couldn’t be sued for the theft because that particular appellate court had never specifically decided “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” So because there was no prior case involving such outlandishly illegal misconduct, the officers received qualified immunity.
Calls for Reform
In light of the fact that there’s such a strong legal argument against qualified immunity, an ideologically diverse alliance of public-policy organizations (led by the Cato Institute) recently asked the Supreme Court to reconsider this judicial doctrine. But in June 2020, the Court declined to hear any of several cases raising this question, with only Justice Thomas dissenting. Any major changes to qualified immunity will therefore have to come from legislatures, not the courts—and it is the tragic nature of criminal justice reform that opportunities for policy change often come on the heels of terrible tragedies.
The death of George Floyd at the hands of Minneapolis police in May 2020, and the national turmoil that his death provoked, transformed qualified immunity into an issue of national importance seemingly overnight. Journalists and commentators of all stripes—including the New York Times, Fox News, Slate, and Reason—all noted the direct connection between George Floyd’s death and qualified immunity. This obscure legal doctrine, once known only to civil-rights lawyers and legal scholars, started showing up on signs at protests around the country. And both federal and state legislators finally began to address the subject.
In Congress, the elimination of qualified immunity for members of law enforcement was included in the “George Floyd Justice in Policing Act,” introduced by Democrats in the House of Representatives, as well as its companion bill in the Senate. The “Ending Qualified Immunity Act” introduced by Justin Amash in the House (the first ever “tripartisan” bill, with Republican, Democratic, and Libertarian co-sponsors) went further and would have eliminated qualified immunity for all public officials. And Mike Braun, a Republican senator from Indiana, introduced the “Reforming Qualified Immunity Act,” which would have substantially cut back on the scope of the doctrine. While none of these particular bills were passed, qualified immunity reform will remain a pressing question as the 117th Congress prepares to sit.
Meanwhile, many individual states have started to take up the issue themselves. While states cannot modify qualified immunity at the federal level, they do have the authority to pass their own state-level civil rights laws—without qualified immunity. That is exactly the approach that Colorado took in June 2020. As part of its comprehensive “Law Enforcement Integrity and Accountability Act” (which passed by overwhelmingly bipartisan margins), Colorado created a civil action against law enforcement officers who violate people’s constitutional rights, and expressly provided that “qualified immunity is not a defense to liability.”
In short, policy makers around the country have finally started to realize just how much qualified immunity has undermined accountability for public officials—especially members of law enforcement. The doctrine harms not only the victims of police misconduct, but the law enforcement community itself, by depriving officers of the public trust and confidence that is necessary for them to do their jobs safely and effectively. When judges routinely excuse police misconduct on technicalities, all members of law enforcement suffer a reputational loss. As policing reform efforts continue into 2021, qualified immunity will be—and must be—a central component of that discussion.
Jay Schweikert is a policy analyst with the Cato Institute’s Project on Criminal Justice.