Eliminating Qualified Immunity Would Curtail Rights Violations and Bring Greater Accountability to Law Enforcement

The unfortunate death of George Floyd caused by Officer Derek Chauvin has brought up a myriad of questions as to how to deal with police misconduct. A phrase that I am sure you have heard being thrown around is "qualified immunity." You are probably wondering how one could make a connection between modern-day policing and a nineteenth-century statute.

Under the Civil Rights Act of 1871, Section 1983 (42 U.S.C. §1983) allows for people to sue the government for civil rights violations. That sounds like a good thing because it holds government officials accountable for bad behavior. This makes sense since the Act was created to curtail civil rights violations that were particularly going in the South at this time. The plain language of 42 U.S.C. §1983 was upheld until the Warren Court. In the case of Pierson v. Ray (1967), the Supreme Court of the United States (SCOTUS) argued that "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 [fined] in damages if he does." And this is how qualified immunity was born.

It was in the case of Harlow v. Fitzgerald (1982) that SCOTUS ruled that qualified immunity applies except when it does not violate "clearly established" statutory or constitutional rights. The process of determining if something is "clearly established" was not formalized until 2001 (Saucier v. Katz). The first step is determining if there was a constitutional violation. The second step is determining whether the right was established at the time the conduct took place. For qualified immunity to not apply to the officer, there would need to be a previous court case with sufficiently similar circumstances rendering the conduct unconstitutional. Pearson v. Callahan (2009) ruled that the constitutionality of the violation remains undefined, which makes it more difficult to pass the hurdle of qualified immunity.

Now that we have gotten through the legal history, let's get into why this matters for policing. It was the initial case of Pierson v. Ray that established qualified immunity based on the notion that worries about liability would get in the way of their work. Law enforcement officers do not think about being sued when performing their duties (Schwartz, 2018; Hall, 2003; Vaughn et al., 2001; Garrison, 1995).

Tangentially, the worry is that even if they do their jobs properly, they will be burdened with the trial process and the associated costs. Qualified immunity was meant to protect all but the plainly incompetent or those who knowingly violate the law. This argument comes in two sub-arguments. The first claim is that qualified immunity exists to prevent officers from being bankrupt from civil lawsuits. The problem with that argument is that governments pay 99.98% percent of the dollars that plaintiffs recovered (Schwartz, 2014), which is to say that police officers do not pay the bill in such a trial (Emmet and Maazel, 2000). Even if indemnification were an issue (which it clearly is not), it would still be fine because it would give the government an incentive to crack down on abusive officers. Derek Chauvin had 18 complaints against him, and yet he was allowed to resume working. Perhaps that would not have been the case had qualified immunity not existed.

The second argument is that qualified immunity exists to protect officers from the burdens of the discover phase.  A study in Yale Law Journal found that qualified immunity is rarely applied early enough to protect officers from civil discovery. The study found that qualified immunity could be raised in 3.9 percent of cases. In practice, only in 0.6 percent of cases was such protection able to be offered (Schwartz, 2017).

Another point I would like to bring up is a study showing how qualified immunity increases the costs, time, and complexity of litigating constitutional claims (Schwartz, 2019). This study is more pessimistic in stating that the win rates would stay the same if we removed qualified immunity. However, removing the costs would increase the number of cases, which means that more justice would be served.

What we see here is that qualified immunity actually does very little to help with constitutional litigation. This brings me to the reasons to criticize the practice of qualified immunity. As the Cato Institute points out, qualified immunity is an "atextual, ahistorical judicial doctrine that shields state officials from liability." There was no good-faith defense (certainly during the creation of the Civil Rights Act of 1871) that would justify SCOTUS' ruling. As a matter of fact, prior to 1967, officers were strictly liable for unlawful acts (Pfander and Hunt, 2010).

Let's go with the "clearly established" clause from the 1982 SCOTUS case. This clause is argued to have made it more difficult to make it prosecute officers when they commit constitutional violations on the job. International news organization Reuters released a report on qualified immunity in May 2020. Reuters not only found that qualified immunity made it more difficult for the case to go to trial, but even when it does go to trial, there are many instances in which the courts favor the officers. Since Pearson v. Callahan, the officer is more likely to win, according to Reuters. An analysis from Notre Dame Law Review confirms Reuters' finding by concluding that officers win 70 percent of the time (Reinert, 2018).

Qualified immunity is judicial activism at its worst because it violated Fourth Amendment rights, not to mention a violation of the separation of power that the Constitution was meant to protect (see Baude, 2018). It sends the message that officers can "shoot first and ask questions later" while protecting bad cops.

The fact that something so unconstitutional and ineffective exists in our legal system is mind-blowing. We need to do better as a society when it comes to protecting constitutional rights, and one of those ways to improve police officer accountability is to eliminate qualified immunity or at least limit qualified immunity with "excessive reasonableness." Given the conservative nature of SCOTUS (and when I say conservative, I mean classical conservatism, i.e., it leans on tradition and established principles) and love for stare decisis, it is unlikely that SCTOUS will overrule its previous ruling. On the plus side, bipartisan legislation was introduced last week to eliminate qualified immunity, so we shall see what happens. I don't expect eliminating qualified immunity will eliminate police misconduct, but it would certainly be a step in the right direction.