Since the death of George Floyd in Minneapolis two months ago, the issue of whether police should have broad immunity from civil lawsuits has flared, splitting members of Congress as well as the judiciary.
As a new ABA Legal Fact Check released July 20 explains, the ability to sue public officials for misconduct under state law is rooted in the Civil Rights Act of 1871, which sought to enforce the U.S. Constitution’s 14th Amendment giving Black people equal rights. But the current doctrine that protects police from most civil actions is relatively recent, emerging nearly 40 years ago through a series of U.S. Supreme Court decisions based on the court’s interpretation of the post-Civil War statute.
Police can still be held criminally liable for their conduct, such as the state charges against the four officers stemming from Floyd’s death. But in civil cases, the court has set a high bar to sue police and other public officials based on its concern that these individuals should not be penalized for conduct that was objectively reasonable and that frequent litigation could interfere with their work.
In a series of cases since 1982, the court established that qualified immunity is “an immunity from suit rather than a mere defense to liability.” The court has defined qualified immunity broadly, saying that immunity should protect “all but the plainly incompetent or those who knowingly violate the law.”
The issue remains in judicial contention today. Justice Sonia Sotomayor, in a 2018 dissent, said the court’s approach to protect police had created “an absolute shield for law enforcement officers.” On June 15, Justice Clarence Thomas dissented in the court’s denial of certiorari in eight cases, arguing that the modern doctrine has strayed too far from the 19th century immunities. “It appears that our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 act,” Thomas said.
But the court’s majority has taken the position of Justice Samuel Alito, who wrote in 2009 that the doctrine balances “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.”
As the ABA Legal Fact Check points out, the bar preventing most civil lawsuits against police misconduct will remain high until Congress or the Supreme Court changes the existing doctrine.
- Civil Rights Act of 1871
- Key U.S. Supreme Court decisions:
- Key U.S. Supreme Court dissents:
- “Policing the Police: Qualified Immunity and Considerations for Congress,” Congressional Research Service (updated June 25, 2020)
- ABA Journal stories related to police immunity