Frequently Asked Questions About Ending Qualified Immunity

Qualified Immunity: How Does It Work?

What is qualified immunity?

“Qualified immunity” is a special protection for government officials the U.S. Supreme Court created in 1982 as an act of judicial policymaking.  By default, all government officials are immune from liability if they violate your rights. Whether your rights were actually violated doesn’t necessarily matter.

Under qualified immunity, government officials can only be held accountable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or it exists, but just in another jurisdiction—the official is immune, even if the official intentionally violated the law.

What does it take to show that a right is “clearly established”?

To show that a right is clearly established, a victim must identify an earlier decision by the U.S. Supreme Court or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If no decision exists, qualified immunity protects the official by default. For example, a Texas appeals court recently held that a prison guard who pepper sprayed an inmate in his locked cell “for no reason” did not violate a clearly-established right because similar cited cases involved guards who had hit and tased inmates for no reason, rather than pepper spraying them for no reason.

Do courts need to decide whether the Constitution was violated before granting qualified immunity? 

No. As explained above, the clearly-established test requires a victim to identify a nearly identical earlier decision by the U.S. Supreme Court or a federal appeals court in the same jurisdiction. But thanks to the Supreme Court’s 2009 decision in Pearson v. Callahan, courts may—and frequently do—decide cases without addressing whether the actions at issue violate the Constitution. Such a system fosters what some scholars call “constitutional stagnation” since courts may simply ignore the underlying constitutional issues and decide cases under qualified immunity.

For instance, when a police officer shot a 10-year-old child while trying to shoot a nonthreatening family dog, the Eleventh Circuit U.S. Court of Appeals held that the officer was entitled to qualified immunity because no earlier case held it was unconstitutional for a police officer to recklessly fire his gun into a group of children without justification. The Court also declined to establish that rule. Not only was the officer let off the hook in that case, but the very same officer could act the same way again, and would still be entitled to qualified immunity. 

Does qualified immunity apply to government officials other than police?

Yes. Qualified immunity applies to all local, state, and federal executive branch officers (aside from prosecutors, who have absolute immunity). This includes, for example, mayors, governors, medical board inspectors, prison guards, school administrators, and everyone else who is in the business of enforcing laws and regulations, including private individuals who act jointly with government officials.

Does qualified immunity apply in criminal cases?

No. Qualified immunity applies only in civil lawsuits, not criminal prosecutions. Yet such civil suits are the only means by which individuals or families can get compensation for the violation of their constitutional or civil rights. And in practice, civil lawsuits are often the only means to seek justice at all because prosecutors—themselves government officials—are typically reluctant to bring criminal charges against their government colleagues, especially police officers who are crucial to the work prosecutors do on a daily basis. 

Does qualified immunity apply when government officials intentionally violate the law?

Yes. Qualified immunity applies even when officials intentionally violate the law. The primary consideration in a qualified immunity analysis is whether there is an earlier court case specifically stating that the particular actions of an official are unconstitutional. So, for example, the Ninth Circuit U.S Court of Appeals recently held that police accused of stealing $225,000 while executing a search warrant were entitled to qualified immunity because that court had “never addressed whether the theft of property covered by the terms of a search warrant…violates the Fourth Amendment.” It did not matter “that virtually every human society teaches that theft generally is morally wrong.”

Does qualified immunity apply when government officials do something obviously wrong?

Yes. Incompetence is not an exception to qualified immunity. The Fifth Circuit U.S Court of Appeals recently granted an officer qualified immunity after he picked up a “mentally infirmed” man and, per an unwritten custom of dropping vagrants into other jurisdictions, drove the man to the county line and dropped him off along the highway at dusk, where he was later struck and killed by a motorist. 

Who has the burden to establish qualified immunity?

Unlike most typical defenses, a victim or the victim’s family has to convince a court that qualified immunity doesn’t apply. All a government officer has to do is invoke the doctrine. If the victim can’t persuade a court qualified immunity shouldn’t apply—by pointing to a specific earlier case—the victim’s case is thrown out. And if the case is not thrown out the first time around, the government official has several more opportunities to invoke the doctrine.

If I can overcome a government official’s qualified immunity defense, does that mean I win my case?

No. If a victim can overcome qualified immunity, it merely means that a court will actually decide the merits of the case. 


Common Defenses for Qualified Immunity–And Why They Fall Short

What policy concerns led the U.S. Supreme Court to create qualified immunity?

According to the U.S. Supreme Court, qualified immunity is needed to make sure government officials are not deterred from acting in split-second situations and that government officials do not face financial harms from a flood of insubstantial and frivolous lawsuits. 

Without qualified immunity, wouldn’t many government officials be financially ruined by court decisions against them?

No. The vast majority of judgments and settlements against government officials are paid by government employers and their insurers. In fact, academic research has found that when qualified immunity has been overcome, “individual officers contributed to settlements in just 0.41% of these cases, and paid approximately 0.02% of the total awards to plaintiffs.” There is no reason to believe that ending qualified immunity would cause a drastic shift in those numbers.

Would the elimination of qualified immunity lead to a flood of frivolous lawsuits?

If qualified immunity is eliminated, academic research shows that “doomsday scenarios imagined by some commentators—of courthouses flooded with meritless claims—would not come to pass.” There are already a number of mechanisms that exist to weed out and disincentivize frivolous filings of all types, including standards of pleading and proof and monetary and other sanctions available under the federal court rules.

If we get rid of qualified immunity, won’t it be impossible to find people to work as police officers?

No. Until 1967, government officials were strictly liable for constitutional violations, even if they were following laws that turned out to be unconstitutional, and police departments around the country were still able to function. 

Shouldn’t police be entitled to make reasonable mistakes in difficult situations?

Yes. But the Constitution already addresses that concern without the need for qualified immunity. Most constitutional claims against police are brought under the Fourth Amendment, which prohibits only unreasonable searches, seizures, and force. So, an officer’s reasonableness—which is considered based on the circumstances he faces in any given situation—is already a buffer against unwarranted lawsuits. Since the Constitution already prescribes an appropriate standard, there is no need for an additional legal obstacle.  


Next Steps 

What would ending qualified immunity accomplish?

First, it would make it easier for individuals to obtain remedies for violations of constitutional rights. Second, it would change structural incentives for governments at all levels, encouraging them to take more responsibility for the actions of their employees. Since the government’s insurance company almost always pays the bill when an officer is found personally liable for violating someone’s rights, if qualified immunity is removed, governments would be forced to pay higher premiums, unless they took an active role in reducing civil and constitutional rights violations. For police, this might include providing de-escalation training and instituting robust use-of-force policies. In other words, a world without qualified immunity would mean a world where governments have a stake in making sure their employees follow the Constitution. 

Although ending qualified immunity wouldn’t solve all problems of police abuse, it would unquestionably be an improvement. And unlike other proposals for police reform, eliminating qualified immunity would immediately apply to all government officials and could be accomplished either by the U.S. Supreme Court or Congress. 

Are there intermediate steps that could be taken short of ending qualified immunity altogether?

Yes. Although the Institute for Justice favors removing qualified immunity entirely, a much more reasonable standard would be the one the U.S. Supreme Court adopted in 1967, which granted officials a general defense of good faith and reasonableness. Under that standard, at least intentional and obvious constitutional violations would not be protected. This middle group would eliminate many of the problems created by the impossibly specific “clearly established” requirement and allow courts to evaluate claims based on the standard of a reasonable person, instead of by the standard of a person with an encyclopedic knowledge of all appellate and Supreme Court decisions but zero knowledge of anything else (e.g., whether police stealing money is an “unreasonable seizure” or whether it’s acceptable for a police officer to fire his gun into a yard full of children to shoot a non-threatening dog).

Shouldn’t it be up to Congress to decide whether to get rid of qualified immunity?

It is certainly within the power of Congress to prohibit qualified immunity. But the U.S. Supreme Court created qualified immunity out of whole-cloth less than four decades ago. Unless and until Congress acts, the U.S. Supreme Court made this mess, so it should clean it up. If Congress wants to enact some form of qualified immunity, it has the power to do so.

Where can I learn more?

Check out IJ’s Project on Immunity and Accountability which includes a list of academic works that do an excellent job of explaining the issues, as well as Unlawful Shield from the Cato Institute. IJ has also filed a number of briefs addressing qualified immunity and other accountability issues.

How can I help the Institute for Justice in its fight to end qualified immunity?

Please spread the word to friends and family and on social media. 

If you’d like to support IJ directly in this fight, you can do so here.


Historical Background for Qualified Immunity

Did qualified immunity exist before 1982?

No. Qualified immunity is nowhere to be found in the Constitution. Since the Founding, the U.S. Supreme Court has held government officials strictly liable for their unlawful or unconstitutional acts, even those done with “pure intention.” The U.S. Supreme Court considered such liability essential to safeguarding constitutional rights and the separation of powers. Historically, the U.S. Supreme Court addressed law—explaining it could “only look to the questions whether the laws have been violated, and if they were, justice demands that the injured party should receive a suitable redress.” But it was left to Congress to address policy—for example, indemnifying officials who acted reasonably and in good faith by paying damages awarded against them. Through that system, every victim of a rights violation was compensated for their harm, and every official who had a good reason for violating those rights was shielded from any personal cost by the government.

Although many have pointed to the U.S. Supreme Court’s 1967 adoption of a general defense of “good faith and probable cause” confusingly called qualified immunity, that doctrine merely allowed officers to avoid liability if they could prove that they acted in good faith and reasonably. Neither of those requirements carried into the qualified immunity doctrine we have today. And, importantly, under the 1967 doctrine, government officials had the burden to prove their defense. Under modern qualified immunity standards, plaintiffs must prove officials are not entitled to immunity. Other than sharing a name and shielding government officials from constitutional accountability, the two doctrines have little in common.

What is the difference between qualified immunity and exemptions for “good faith”?

The former is much broader than the latter. The U.S. Supreme Court’s first iteration of the qualified immunity standard, in 1967, was essentially a good faith exemption. If an official could show he acted in good faith, he would be protected from liability. The U.S. Supreme Court changed course in 1982, however, and created a whole new standard for qualified immunity–the one enforced today–where even those who are incompetent and who knowingly violate the law are still shielded from accountability. 

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