What is Qualified Immunity?
“Qualified immunity” is a special protection for government workers that the Supreme Court created in 1982 as an act of judicial policymaking. The case, Harlow v. Fitzgerald, did not even involve police. It was brought by a whistleblower who wanted to sue Nixon White House aides for punishing him because he spoke out against a Pentagon weapons program. In Harlow, the Supreme Court made all government workers immune from constitutional liability by default.
Under qualified immunity, government workers 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, maliciously, or unreasonably violated the law or Constitution.
Qualified Immunity: How Does It Work?
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 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. Importantly, when courts grant government workers qualified immunity, they do so despite the fact that the government worker has violated the Constitution or they simply do not address that issue at all.
Do courts need to decide whether the Constitution was violated before granting qualified immunity?
No. The clearly-established test requires a victim to identify a nearly identical earlier decision by the Supreme Court or a federal appeals court in the same jurisdiction. This means that courts will sometimes hold that a government worker’s actions violated the Constitution and then use qualified immunity to let him off the hook. But often courts do not even address whether a government worker violated the Constitution. Thanks to the Supreme Court’s 2009 decision in Pearson v. Callahan, courts may 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. By not reaching constitutional questions, courts avoid establishing law that could guide and bind government workers in the future.
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 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 their 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 workers-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 to government workers other than police?
Yes. Qualified immunity applies to all government workers, whether local, state, or federal (some of them might get even greater protections, like prosecutors and judges, but all can take advantage of qualified immunity at a minimum). This includes, for example, mayors, governors, medical board inspectors, prison guards, school administrators, IRS agents, and everyone else who works for the government, as well as private individuals who act jointly with government workers or undertake governmental tasks, such as private prison operators and ankle-monitoring companies.
Does qualified immunity apply when government workers intentionally violate the law?
Yes. Qualified immunity applies even when officials intentionally or recklessly 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 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 workers do something obviously wrong?
Yes. Incompetence is not an exception to qualified immunity. The Fifth Circuit U.S Court of Appeals 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.
To be fair, there is a Supreme Court decision-Hope v. Pelzer-that specifically says that some constitutional violations are just obviously wrong and there is no need for a court to say so before you can hold a government worker accountable. Recently, in Taylor v. Riojas, the Supreme Court reaffirmed the viability of Hope. But so far, Hope has not been used rarely to deny qualified immunity to government workers who do something obviously wrong. That’s because Supreme Court decisions on the other side of the spectrum from Hope greatly outnumber it.
Who has the burden to establish qualified immunity?
Unlike most legal 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 worker has several more opportunities to invoke the doctrine.
If I can overcome a government worker’s qualified immunity defense, does that mean I win my case?
No. If a victim can overcome qualified immunity (which can be raised by a government worker at multiple stages of the litigation process), it merely means that a court will actually decide the merits of the case. It is still up to a plaintiff to prove that a government worker violated the Constitution and harmed the plaintiff.
Common Defenses for Qualified Immunity (And Why They Fall Short)
Why did the Supreme Court create qualified immunity?
According to the Supreme Court, qualified immunity is needed to make sure government workers are not deterred from acting in split-second situations and that government workers do not face financial harms from a flood of insubstantial and frivolous lawsuits. But the Court’s policy concerns have largely been disproven by academic research. In addition, it is not the job of the courts to worry about policy-that’s the job allocated by the founders to Congress-as the Supreme Court explained in its recent decision of Tanvir v. Tanzin.
Without qualified immunity, wouldn’t many government workers be financially ruined by court decisions against them?
No. Nearly all judgments and settlements against government workers are paid by government employers or 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 shift in those numbers.
If we get rid of qualified immunity, won’t it be impossible to find people to work as police officers?
No. Until 1967, government workers were strictly liable for constitutional violations, even if they were following laws that turned out to be unconstitutional. Police departments had no trouble balancing the duties of policing with the restrictions of the Constitution.
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. Check out this statement from the Supreme Court: “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” So, an officer’s reasonableness-which is considered based on the circumstances he faces in any given situation-already provides leeway in police interactions. Since the Constitution already prescribes an appropriate standard, the additional obstacle that qualified immunity presents only frustrates the Constitution’s proper operation.
Didn’t qualified immunity exist long before 1982?
No. Qualified immunity is nowhere to be found in the Constitution. Since the Founding, the Supreme Court has held government workers strictly liable for their unlawful or unconstitutional acts, even those done with “pure intention.” The Supreme Court considered such liability essential to safeguarding constitutional rights and the separation of powers. Historically, the 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 Supreme Court’s 1967 adoption of a general defense of “good faith and probable cause” confusingly also 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 workers 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 workers from constitutional accountability, the two doctrines have little in common.
What would ending qualified immunity accomplish?
First, it would return the Constitution to its proper place as a limit on government actions by making it possible for individuals to enforce the Constitution against government workers. 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 the government has a stake in making sure its 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 workers and could be accomplished either by the U.S. Supreme Court or Congress.
In addition, cities and states can create their own causes of action to hold government officials accountable and ban qualified immunity as a potential defense. Today, four states—Colorado, Montana, Nevada, and New Mexico—have eliminated qualified immunity for state constitutional lawsuits against police officers.
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, it would also help if the Court were to revert back to the good faith standard it 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 position 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?
Yes, but Congress never intended for qualified immunity to exist in the first place. That is evident from the fact that when Congress wrote the primary civil rights statute, 42 U.S.C. § 1983, it did not include any defenses, and there was also no common-law defense of qualified immunity against which it could have legislated. The Supreme Court created qualified immunity out of whole-cloth less than four decades ago. It is up to the Supreme Court to get rid of it by simply overturning Harlow v. Fitzgerald. That said, if Congress wants to get rid of qualified immunity, it also has the power to do so.
Is there hope that the Supreme Court may get rid of qualified immunity?
Yes. Two recent decisions from the Supreme Court offer some hope for the future. In Taylor v. Riojas, the Supreme Court breathed new life into the concept that some constitutional violations are so obvious that they do not require an earlier decision to provide the government worker with fair warning. And in Tanzin v. Tanvir-a case that did not address qualified immunity-the Supreme Court adopted IJ’s argument that (1) damages for constitutional violations are important and often necessary, (2) damages for constitutional violations have a great historic pedigree, and (3) it is not within this Court’s purview to import policy concerns into its decision-making. This unanimous opinion written by Justice Thomas repudiates the type of policy decision-making the Court engaged in when it created qualified immunity, undermining the entire foundation of that unlawful doctrine.
Where can I learn more?
Check out IJ’s Project on Immunity and Accountability, which includes a number of briefs that IJ has filed addressing qualified immunity as well as of some of the most prominent academic works that do an excellent job of explaining the issue. Also, be sure to head over to Unlawful Shield from the Cato Institute. Or, if you just have 30 seconds, check out this TikTok video.
Also, check out IJ’s efforts to make a difference on the state level here.
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.