Qualified Immunity: How It Works And How It’s Being Abused

Police in riot gear at Ferguson protests – August 13, 2014 (Jamelle Bouie/Creative Commons)

What is qualified immunity?

Qualified immunity is a law doctrine intended to shield government workers from being held accountable for misconduct if the official didn’t violate clearly established law. If a plaintiff were to accuse an official of violating their constitutional rights, the official may appeal to qualified immunity as a means of defense. If they are granted immunity, the case is dropped and nothing else happens.

This protection ensures that officials cannot be harassed for simply doing their duty. It holds officials accountable for their actions, both good and bad. It protects them from being sued, provided they did not violate a citizen’s rights. Unfortunately, this federal law has been utilized by police officers to shield themselves from accountability.

Why is qualified immunity important?

Qualified immunity was implemented for several reasons:

• It protects officials from unjust lawsuits
• It keeps the government from wasting time and money in court
• It avoids a poor reflection that may keep people from applying for government jobs
• It enables police to use force when necessary and not be inundated with lawsuits.

For obvious reasons, many police officers find qualified immunity immensely valuable. Atlanta-based police lawyer Chris Balch said, “It is very easy to second-guess the decision making of a police officer when you are sitting at a desk.” Larry James, General counsel on the National Fraternal Order of Police, said something similar: “Plaintiffs’ lawyers sue everyone under the sun, irrespective of the facts.” However, there happens to be a database of qualified immunity cases that are respective of facts–facts which tell a remarkably different story.

Finally, the Supreme Court places a special value on qualified immunity’s significance. One California Law Review study concluded that this emphasis “sends a strong signal to lower courts and elevates…qualified immunity cases to a [greater] level of attention.” The Supreme Court has actually called it invaluable “to society as a whole.” That said, even some justices on the Supreme Court have expressed doubt as to the fairness of the system.

How has qualified immunity been abused by police officers?

Despite what value qualified immunity may have, it cannot be ignored: numerous police brutality cases have been dismissed solely on officers being granted immunity. Here are just two examples:

• In January 2017, Georgia officer Nicholas Deaton was immunified of throwing a “flashbang” explosive through a bedroom window, seriously burning Treneshia Dukes, who had been sleeping inside. Because of the lack of similar previous cases, Deaton’s actions were not “clearly established” as violating the plaintiff’s rights, and the case was dropped.
• In January 2018, Detroit officer Lowell Phillips was granted immunity for shooting and killing Laszlo Latits. Latits had been chased and cornered by police for possibly having drugs in his car. Although the court unanimously called Phillips’ actions unjustified, they could not cite legal reasons to dispute qualified immunity. The situation was exactly like Deaton’s: there just weren’t enough similar cases to identify “clearly established” laws.

Qualified immunity has also been shown to be both ineffective, unnecessary, and unfair.

• First, immunity must be granted early on in the legal process, so only the preliminary, surface evidence is available. This makes it much easier for abusive police officers to avoid charges because if they are granted immunity they don’t even have to go to court.
• Second, nearly three quarters of dropped cases that apply for qualified immunity end up being dismissed for other reasons. Even though it can be helpful, it often isn’t necessary at all.
• Finally, qualified immunity cases have been regarded by numerous historians and political scientists to be simply unfair to plaintiffs. One Yale Law Review researcher put it like this: “Many have argued, and I agree, that the Court’s qualified immunity doctrine puts a heavy thumb on the scale in favor of government interests, and disregards the interests of individuals whose rights have been violated.”

These faults have led many lawyers to simply avoid police brutality plaintiffs because the chances of the defendant being granted immunity make it too hard for them to actually get to court. William Baude, a law professor at the University of Chicago said, “You get the impression that the officers are always supposed to win and the plaintiffs are supposed to lose.”

What is being done to end qualified immunity?

The Supreme Court is currently deciding whether to review ten different qualified immunity cases–none of which are for aggressive protestors, despite nationwide demonstrations. However, because protestors have First Amendment rights, it would be much harder for a police officer to be granted immunity, should they be sued. This would render qualified immunity more as an impediment than an efficient means of dismissing a case.

Two pieces of legislation have been proposed in the hopes of getting rid of qualified immunity. On May 31, Justin Amash (L-MI) said that he will introduce the “End Qualified Immunity Act.” Rep. Amash called the Act a push to remove a “permanent procedural roadblock for plaintiffs,” calling qualified immunity a “mistake.” On June 8, House and Senate Democrats proposed sweeping police reforms, which include ending qualified immunity for police.

One encouraging factor in the move to take legal action against qualified immunity is the support of Sonia Sotomayor, a justice on the Supreme Court itself. Sotomayor, who has been a critic for years, said that immunity “renders the protections of the Fourth Amendment hollow.” This suggests that Sotomayor would approve of banning qualified immunity in the future.

Despite all the abuses of qualified immunity and police brutality in general, it’s important to look at the bigger picture. Ending immunity would be an encouraging step towards justice reform, but we need to remember that racism and discrimination are more than just legal terms. These are powerful, emotional challenges. They don’t vanish through a passed bill or elected official. Changing laws is much easier than changing hearts.

After doing significant research, one Washington Post reporter found that “most cases dismissed…failed for reasons other than qualified immunity. Those other barriers to relief––which give great deference to police; and unsympathetic juries that rule against civil rights plaintiffs or award very little—would continue to exist if qualified immunity were abolished.” Basic facts reveal that qualified immunity is not the only example of racism in America’s justice system.

The Rantt Rundown

At a time where police brutality is continuing to fuel outrage, one doctrine, in particular, stands out as an example of how certain laws intentionally favor officers. Qualified immunity, while originally good-intentioned, has been taken advantage of countless times in order to dismiss police brutality that should have received severe punishment. Getting rid of this piece of legislature is one practical step towards justice for African-Americans and reform for a broken police institution.