The Evolution and Overuse of Qualified Immunity in Police Brutality Cases

By: Emily Yang

Edited By: Tess Ballis and Hannah Cheves

1. Introduction and Background
As America has reckoned with the ubiquity of police brutality, exemplified through nationwide protests and calls for budget and policy changes, legal loopholes remain that diminish police accountability. Qualified immunity is a legal principle that minimizes the financial and legal obligations authorities face when violating constitutional law. With a code first introduced by 42 U.S.C. § 1983 (1871), Congress aimed to make individuals culpable of depriving others of their constitutional rights subject to appropriate legal action —which has since been modified to exclude, to an extent, the actions taken by government officials.[1] This exception has paved the way for the modern interpretation of qualified immunity, which effectively decreases the accountability of government officials, and specifically law enforcement officers. 

Today, judges consider two factors when determining whether to pursue legal action against government officials: 1) whether the official violated a constitutional right and 2) whether this right or law was clearly established to the point that an official would be reasonably aware. These components are objectively vague, especially given that appellate courts largely depend on precedent when reaching their verdicts. Consequently, officials are enabled to blatantly disregard constitutional rights with few to no consequences. Furthermore, as police officers reap the benefits of qualified immunity, this principle can hinder the attainment of legal justice in the case of unnecessary use of force. Despite what appear to be clear violations of constitutional rights, today’s partisan gridlock in Congress and dependence on precedence in American jurisprudence make the path to abolishing qualified immunity in police brutality cases complex.

2. Supreme Court Cases

Qualified immunity has evolved beyond the 1871 code, corresponding with a community rise in police involvement in the 1970’s.[2] Harlow v. Fitzgerald, 457 U.S. 800 (1982) reexamined the parameters of qualified immunity, defining the extent to which the principle could protect government officials.[3] In a now-infamous whistleblower case, Arthur Fitzgerald, a deputy in the Office of the Secretary of the Air Force, testified before the Joint Economic Committee in Congress to contend $2 billion in cost overruns and was consequently blacklisted from future government positions and fired by President Nixon. Despite this evidently egregious abuse of power, the Supreme Court ruled that certain government officials “require complete protection from suits for damages,” asserting that executive officials in particular should be offered immunity under the assumption that they will exercise discretion under “good faith”.[4] Of course, there is irony in this decision, considering Nixon’s impeachment in 1973. Additionally, this vague expectation that executive officials will operate with integrity has been further extended to other officials, including police officers. 

In Saucier v. Katz, 533 U.S. 194 (2001), Elliot Katz’s allegation that Donald Saucier, a military police officer, had violated his Fourth Amendment rights when using excessive force to arrest Katz at a protest outside of Vice President Al Gore’s speech set a foundation for today’s police officers to utilize the qualified immunity defense in situations in which they are accused of violating individuals’ constitutional rights.[5] The Supreme Court’s ruling cited a desire to avoid the “cost and expense of trial,” thereby setting forth the precedent to require that 1) an official’s misconduct was unconstitutional and 2) the law the official broke was clearly established.[6] In avoiding the “cost of trial,” cases involving police officers very rarely reach court — let alone a jury — circumventing the United States’ rule of law.[7] Moreover, Saucier v. Katz determined that one must consider the use of qualified immunity in light of a case’s specific circumstances; as a result, it is extremely difficult to argue whether a law has been clearly established unless there exists an exceptionally similar case that has been ruled in favor of the plaintiff.[8] 

3. Justification and Critique

In nearly all cases that call for qualified immunity, plaintiffs cite violations of the Fourth Amendment of the U.S. Constitution. With recent police brutality cases, plaintiffs have argued that police officers encroached on their right to safety from “unreasonable searches and seizures,” as well as their right to be secure in their “persons, houses, papers, and effects”.[9] 

As with all American jurisprudence, there is a justification for qualified immunity: to reduce court congestion and encourage decisiveness among government officials. Proponents of qualified immunity today argue that it enables law enforcement officers to make “judgement calls in rapidly evolving situations,” arguing that the doctrine protects all but the “plainly incompetent or those who knowingly ignore the law”.[10] 

However, these justifications do not outweigh the drawbacks, as demonstrated by gross misuses of power by executives and numerous examples of police brutality that have transpired without consequence. As earlier stated, modern cases involving police brutality require nearly identical precedent to argue that officers were depriving others of constitutional rights that are clearly established. Supreme Court Justice Sonia Sotomayor argues that qualified immunity provides an “absolute shield for law enforcement officers” and creates a “one-sided” federal court system.[11] Qualified immunity contradicts the rule of law, placing certain authorities above the Constitution. And, of course, this protection lends itself to unaddressed violence predominantly perpetrated against people of color.[12] 

4. Police Brutality and Modern Legal Loopholes

Issues with excessive use of force involving law enforcement officials often evoke judicial and social questioning of whether qualified immunity is applicable. Some past Supreme Court rulings have limited the situations in which police officers can exert lethal force, a main point of contention in the discussions on police brutality. Tennessee v. Garner, 471 U.S. 1 (1985) dictates that police officers may only exert deadly force if they believe the suspect poses a “significant threat or serious physical injury to the officer or others.”[13] However, the vagueness of this ruling, once again, leaves excessive room for interpretation by officers. Racial profiling can play a significant role when officers determine whether suspects pose a threat — research on stop and frisk procedures, which again call into question individuals’ Fourth Amendment rights, illustrated that Black people were stopped at 10 times the rate of white people, raising concern over bias that may go into deeming an individual a “significant threat”.[14] This issue is best exhibited in Scott v. Harris 550 U.S. 372 (2007), a high-speed police chase ended by an officer clipping Harris’s car, rendering Harris quadriplegic. Harris began to flee after an officer activated his lights; the high-speed chase lasted approximately 10 miles. The crime Harris was culpable of was driving 73 mph in a 55-mph zone; nevertheless, the Supreme Court determined that the officer, under qualified immunity, would not face consequences, as Harris’s escape was considered a danger to others and upheld by the ruling in Tennessee v. Garner.[15] When a tape of Scott’s pursuit of Harris was released to the public, there were mixed decisions as to whether Scott’s decision was justified — in fact, Black viewers were more likely to indicate “no,” whereas white viewers were more likely to indicate “yes,”[16] alluding to the role racial profiling may have played in Scott’s decision to employ lethal force and, ultimately, the court’s decision to call upon qualified immunity. 

After George Floyd was murdered in 2020, Derek Chauvin was sentenced to 22.5 years in prison for second-degree unintentional murder, third-degree murder, and second-degree manslaughter.[17] While Floyd’s case arguably concluded with justice on the side of the wrongfully killed, the circumstances of a police officer unjustifiably using force against a Black person echoed those of past cases that were never heard in court because of the qualified immunity doctrine. One officer shot a 10-year-old child when attempting to fire at a non threatening dog [18]; another shot a 14-year-old boy who dropped his BB gun and raised his hands, following police directives.[19] Both of these cases were dismissed under qualified immunity, despite the fact that these cases are in flagrant violation of the Fourth and Fourteenth Amendments and were naturally highly scrutinized by the public. Furthermore, the dismissal of these cases set precedent for the defense of future police recklessness. 

5. Policy Change and Moving Forward

To address the nationwide response to the killings of George Floyd and Breonna Taylor, the latter of which received very few legal ramifications for the officers involved, several politicians have introduced acts or policies in hopes of ending qualified immunity. In 2020, Colorado state passed the Enhance Law Enforcement Integrity Act (SB20-217), permitting plaintiffs to bypass qualified immunity when pressing charges against law enforcement officials for the violation of their civil rights.[20] On the federal level, Reps. Ayanna Presley and Justin Amash and Sens. Ed Markey and Elizabeth Warren proposed an act in 2020,[21] which would amend Section 1983 of the Constitution to establish that the qualified immunity doctrine does not serve as “grounds for defense for officers that violate the law.”[22] Nonetheless, 35 state qualified-immunity bills “have died in the past months” or have been amended to allow for vague exceptions in favor of law enforcement officers.[23] Consequently, while the Ending Qualified Immunity Act may be an optimistic step in diminishing the role of qualified immunity in police brutality cases, this act 1) has yet to be introduced to Senate, which may see more divided responses because of its partisan gridlock -- as illustrated by the Senate block of the George Floyd Justice in Policing Act [24] -- and 2) may be overridden by loopholes in state laws, such as strengthened qualified-immunity rights of officers in Iowa and Arkansas.[25] 

Republican senators’ reluctance to pass police reform acts, in addition to heightened financial and social support for law enforcement, may prove the abolishment of qualified immunity incredibly difficult. The topic of police brutality has become exceedingly partisan; therefore, although qualified immunity may contradict the rule of law as outlined in the Constitution, politicians may be compelled to vote along party lines. Nonetheless, as current laws stand throughout most of the United States, qualified immunity remains a way in which government officials can behave above the law at the cost of human life and legal justice.

Notes:

1. Enforcement Act of 1871, 42 U.S.C. § 1983 (1871).

2. Skolnick, J. H., and D. H. Bayley. "Community Policing: Issues and Practices Around the World." Office of Justice Programs, 1988.

3. Harlow v. Fitzgerald, 457 U.S. 800 (1982).

4. Harlow v. Fitzgerald (1982).

5. Saucier v. Katz, 533 U.S. 194 (2001).

6. Saucier v. Katz (2001).

7. U.S. Const. art. III, § 2.

8. Saucier v. Katz (2001).

9. U.S. Const. amend. IV.

10. U.S. Library of Congress. Congressional Research Service. Policing the Police: Qualified Immunity and Considerations for Congress, by Whitney K. Novak. LSB10492. 2020. 

11. "U.S. Supreme Court Declines to Review Qualified Immunity Cases." Crabbe, Brown & James, LLP. September 23, 2020. https://cbjlawyers.com/u-s-supreme-court-declines-to-review-qualified-immunity-cases/.

12. “There’s Overwhelming Evidence That the Criminal Justice System Is Racist. Here’s the Proof.” Balko, Radley. The Washington Post. June 10, 2020. https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/. 

13. Tennessee v. Garner, 471 U.S. 1 (1985).

14. "Stop and Frisk." Legal Information Institute. https://www.law.cornell.edu/wex/stop_and_frisk.

15. Scott v. Harris, 550 U.S. 372 (2007).

16. Kahan, Dan, David Hoffman, and Donald Braman. "Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism." Harvard Law Review122 (January 2009).

17. Wamsley, Laurel. "Derek Chauvin Found Guilty Of George Floyd's Murder." NPR. April 20, 2021. https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/20/987777911/court-says-jury-has-reached-verdict-in-derek-chauvins-murder-trial.

18. Corbitt v. Vickers, No. 17-15566 (11th Cir. 2019).

19. Nelson v. City of Battle Creek, Michigan, No. 18-1282 (6th Cir. 2020).

20. Sibilla, Nick. “Colorado Passes Landmark Law Against Qualified Immunity, Creates New Way to Protect Civil Rights.” Forbes. June 21, 2020. https://www.forbes.com/sites/nicksibilla/2020/06/21/colorado-passes-landmark-law-against-qualified-immunity-creates-new-way-to-protect-civil-rights/?sh=6774c816378a. 

21. Ending Qualified Immunity Act, H.R. 7085, 116th Cong. (2020). https://www.congress.gov/bill/116th-congress/house-bill/7085

22. Kindy, Kimberly. “Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Every Bill.” The Washington Post. Oct. 7, 2021. https://www.washingtonpost.com/politics/qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1-42a8138f132a_story.html. 

23. Kindy, Kimberly, “End Qualified Immunity.” 2021.

24. George Floyd Justice in Policing Act, H.R. 1280, 117th Cong. (2020). https://www.congress.gov/bill/117th-congress/house-bill/1280 

25. Kindy, Kimberly. “End Qualified Immunity.” 2021

Bibliography:

Kahan, Dan, David Hoffman, and Donald Braman. "Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism." Harvard Law Review 122 (January 2009).

Kindy, Kimberly. “Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Every Bill.” The Washington Post. Oct. 7, 2021. https://www.washingtonpost.com/politics/qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1-42a8138f132a_story.html. 

Sibilla, Nick. “Colorado Passes Landmark Law Against Qualified Immunity, Creates New Way to Protect Civil Rights.” Forbes. June 21, 2020. https://www.forbes.com/sites/nicksibilla/2020/06/21/colorado-passes-landmark-law-against-qualified-immunity-creates-new-way-to-protect-civil-rights/?sh=6774c816378a. 

Skolnick, J. H., and D. H. Bayley. "Community Policing: Issues and Practices Around the World." Office of Justice Programs, 1988.

"Stop and Frisk." Legal Information Institute. https://www.law.cornell.edu/wex/stop_and_frisk.

U.S. Library of Congress. Congressional Research Service. Policing the Police: Qualified Immunity and Considerations for Congress, by Whitney K. Novak. LSB10492. 2020. 

"U.S. Supreme Court Declines to Review Qualified Immunity Cases." Crabbe, Brown & James, LLP. September 23, 2020. https://cbjlawyers.com/u-s-supreme-court-declines-to-review-qualified-immunity-cases/.

Wamsley, Laurel. "Derek Chauvin Found Guilty Of George Floyd's Murder." NPR. April 20, 2021. https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/20/987777911/court-says-jury-has-reached-verdict-in-derek-chauvins-murder-trial.