In the continuing aftermath of George Floyd’s death at the hands of Minnesota police, qualified immunity has come to the forefront. By protecting police officers from liability, even when they violate people’s constitutional rights, this doctrine has become the cornerstone of our near‐zero accountability policy for law enforcement. Shamefully, the Supreme Court recently declined the perfect opportunity to address the mess that it made by inventing this doctrine. But Congress has also turned its attention to the issue, and there are now several pending legislative proposals to abolish qualified immunity. And that development has compelled the few proponents of the doctrine to actually put forward arguments in its defense.
Some of these arguments may sound reasonable, but they all rest on misunderstandings or misrepresentations about what qualified immunity actually is, and how it works. I’ve already discussed some of these points in this recent post, as well as on Unlawful Shield’s FAQs about qualified immunity. But I thought it would be helpful to collect and rebut in one place all of the most common arguments that I’ve heard come up in recent congressional hearings and other public commentary.
1. “We need qualified immunity so that police won’t hesitate when they have to make split‐second, life‐or‐death decisions.”
It is certainly true that police officers have to make difficult, on‐the‐spot decisions under conditions of danger and uncertainty. So, the argument goes, it is both unfair and unwise for courts to second guess these decisions, and holding officers personally liable whenever they make the “wrong call” will deter them from carrying out their duties in the first place.
This argument is reasonable, but it has nothing to do with qualified immunity. Our underlying legal standards for determining whether a constitutional violation occurred in the first place are already highly deferential to on‐the‐spot police decision‐making. The Supreme Court’s decision in Graham v. Connor sets out an “objective reasonableness” standard for excessive‐force claims, which makes clear that courts cannot second guess on‐the‐spot policing decisions:
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, nor by the mistaken execution of a valid search warrant on the wrong premises. With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth Amendment. 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.
To clarify, this decision has nothing to do with qualified immunity. In Graham, the Court was simply explaining that unless an officer acts objectively unreasonable, under the circumstances known to them at the time, they haven’t violated the Fourth Amendment at all.
Keep in mind that qualified immunity only matters in the circumstance where (1) a civil rights plaintiff can show that the defendant did violate their constitutional rights, but (2) those rights were not “clearly established” at the time of the violation (i.e., there was no prior case involving nearly identical facts). So if a police officer didn’t commit a constitutional violation in the first place, then they don’t need qualified immunity to protect them. Qualified immunity is therefore entirely unnecessary to ensure that police can make quick, split‐second decisions, because that protection is already baked into our Fourth Amendment jurisprudence. If we eliminated qualified immunity tomorrow, that protection would remain untouched.
Moreover, the very fact that officers do have to make difficult, split‐second decisions underscores how the “clearly established law” standard rests on a bizarre legal fiction. After all, the way that standard works is that police cannot be held liable for their misconduct unless a previous judicial decision has already held that the particular misconduct they committed was unconstitutional. But this supposes that individual police officers are carefully reading the most recent judicial decisions by their relevant appellate court and comparing the exact fact patterns of those cases to scenarios they encounter on the street when making split‐second decisions. This is, obviously, not how policing actually works. As one federal judge recently stated:
The Supreme Court’s obsession with the clearly established prong assumes that officers are routinely reading Supreme Court and Tenth Circuit opinions in their spare time, carefully comparing the facts in these qualified immunity cases with the circumstances they confront in their day‐to‐day police work. It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions. It is far more likely that, in their training and continuing education, police officers are taught general principles, and, in the intense atmosphere of an arrest, police officers rely on these general principles, rather than engaging in a detailed comparison of their situation with a previous Supreme Court or published Tenth Circuit case. It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in York v. City of Las Cruces?”
In other words, qualified immunity is not only unnecessary for ensuring that police have discretion to make on‐the‐spot decisions, but also practically incapable of providing the sort of protection that proponents claim is needed.
2. “Eliminating qualified immunity would negatively impact recruitment and retention of police officers because they would fear being sued.”
There are many, many things wrong with this argument.
First, as I discussed above, even in the absence of qualified immunity, it is by no means easy to demonstrate that a police officer violated your constitutional rights. Our Fourth Amendment jurisprudence incorporates tremendous deference to police decision‐making, and officers who genuinely make reasonable, good‐faith decisions about arrests, use of force, etc., are already protected from being sued. The idea that eliminating qualified immunity would somehow lead to ruinous lawsuits anytime someone disagreed with an officer’s use of force is reckless, inaccurate fear‐mongering.
Second, even today, police officers are nearly always indemnified for any settlements or judgments against them, meaning that their municipal employers, not the officers themselves, actually end up paying. Joanna Schwartz, a UCLA law professor and one of the foremost scholars of qualified immunity, demonstrated in a 2014 article called Police Indemnification that, in her study period, “governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.” In other words, even when plaintiffs do overcome qualified immunity, the individual police officers rarely pay a dime.
I have written elsewhere about how this practice of near‐automatic indemnification is itself problematic, because it fails to provide for individualized accountability for officers who violate people’s rights. A better practice, as my colleague Clark Neily has also discussed, would be to take some portion of the money that municipalities already spend on civil rights judgments, and instead put that toward an insurance allowance for individual officers. That way, officers would have a clear, direct interest in making sure their own behavior conformed to constitutional standards — because unprofessional officers who routinely committed misconduct would see their premiums go up, and would eventually be priced out of the market.
Nevertheless, as things currently stand, individual officers are almost never required to pay anything, even when they are found to have committed a constitutional violation. The immediate effect of eliminating qualified immunity would not be to subject these officers to huge judgments, but rather to ensure that victims whose rights are violated have a remedy.
Third, keep in mind that qualified immunity means law enforcement is held to a far lower standard of liability than basically any other profession. Imagine, for example, that doctors started arguing that they should no longer be liable for malpractice, unless some other doctor had already been held liable for committing the very same kind of malpractice. Nobody would take this argument seriously, and rightfully so. The reality is that doctors, lawyers, accountants, engineers, architects, and professionals of all sorts expect to face liability if they commit professional misconduct. And in every context except for law enforcement, we comfortably accept the premises that the potential for liability (1) justly compensates the victims of professional misconduct, (2) encourages professionals to conform their behavior to legal standards, and (3) doesn’t discourage people from entering the profession in the first place.
So, the relevant question should not be “would eliminating qualified immunity deter people from becoming police officers?” It should be “why should police officers, unlike every other profession in our society, have special protection against liability, even when they break the law?”
Fourth, the proponents of qualified immunity are profoundly mistaken if they think the doctrine is doing the law enforcement community any favors. To the contrary, qualified immunity has dramatically undermined trust and respect for police officers, by telling the public that members of law enforcement can routinely get away with egregious misconduct. There is ample evidence that policing is far more difficult and dangerous when officers lack community trust, which means that qualified immunity is making it harder, not easier, for police to do their jobs.
Indeed, the more thoughtful members of law enforcement have already recognized as much, and for that very reason (among others) have called for an end to qualified immunity. For example:
- The Law Enforcement Action Partnership (“LEAP”) has joined several of Cato’s amicus briefs calling for the Supreme Court to reconsider qualified immunity, and they recently put out a set of policy recommendations stating that “Congress should pass a law to ensure that the qualified immunity doctrine does not stop officers who break the law from being held legally accountable.” LEAP’s Executive Director, Major Neill Franklin (Ret.), explained that “[a]ccountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. There’s no better way to restore community trust. And we cannot do our jobs without trust.”
- Ronald Davis, Chair of the Legislative Committee of the National Organization for Black Law Enforcement Executives (“NOBLE”), and a retired chief of police, submitted testimony to the House Judiciary Committee, in which he said that “the first action step in reconstructing a new policing system is to take immediate steps in strengthening police accountability and building trust with communities.” To that end, he recommended that Congress “[e]nd the qualified immunity doctrine which prevents police from being held legally accountable when they break the law.”
3. “Qualified immunity is necessary to prevent frivolous lawsuits against police officers.”
Whether or not you think “frivolous civil‐rights litigation” is a serious problem, it’s a problem that qualified immunity, by its very nature, is incapable of addressing.
There are basically two things we might mean by saying that a particular lawsuit is “frivolous.” First, it could mean that a lawsuit is not legally meritorious, meaning that the facts alleged, even if true, simply do not make out a constitutional violation at all. If that’s the case, then qualified immunity, by definition, is unnecessary to dismiss the lawsuit, because qualified immunity only matters when the defendant has committed an actual constitutional violation, but where a court nonetheless determines that the law wasn’t “clearly established.” If the underlying lawsuit is meritless, however, then it can be dismissed for “failure to state a claim upon which relief can be granted,” without any need to invoke qualified immunity.
Second, a “frivolous” lawsuit could be one that is not factually supported — in other words, maybe the facts alleged, if true, would make out a constitutional violation, but the plaintiff is either mistaken or lying about the facts. But in that case, qualified immunity does little to help in dismissing the case, because of course, plaintiffs could theoretically lie their way around qualified immunity as well, just by alleging facts that do happen to closely match the fact patterns of prior cases.
The tools that we use to address and deter frivolous litigation are entirely separate from qualified immunity. Heightened pleading standards require plaintiffs to make specific, factual, non‐conclusory allegations showing that they are entitled to relief. Rule 11 of the Federal Rules of Civil Procedure requires attorneys to attest that they have a good‐faith basis for the factual and legal arguments in all submitted pleadings, and it provides for sanctions if they fail to meet this standard. Depending on the particular subject matter and context, more stringent requirements may apply. Rule 9(b) of the Federal Rules of Civil Procedure imposes extra pleading requirements for alleging fraud; the “anti‐SLAPP laws” enacted by many states allow for early dismissal of frivolous defamation claims; and the Prison Litigation Reform Act of 1996 limited the ability of prisoners to bring successive, non‐meritorious lawsuits.
Assuming there is a problem with frivolous civil rights litigation, addressing it will require rules like these. But qualified immunity does basically nothing to stop “frivolous” lawsuits because, again, the doctrine only kicks in when the underlying lawsuit is meritorious. The idea that eliminated qualified immunity will result in a wave of frivolous litigation is more baseless fear‐mongering — qualified immunity does nothing now to prevent such litigation, so we shouldn’t expect a major change in this regard if we abolish the doctrine.
4. “Qualified immunity protects police officers from the time and expense of litigation by quickly filtering out bad lawsuits.”
This is a somewhat more sophisticated version of the previous defense, but it’s still mistaken. The argument goes like this: “Yes, in theory, non‐meritorious lawsuits should still end up failing, even in the absence of qualified immunity. But it will take substantial time and resources for officers to successfully defend themselves against these lawsuits. Therefore, even if qualified immunity ends up catching some meritorious cases as well, the doctrine is worth the cost, because it will let defendants quickly and easily dismiss the frivolous ones.”
This objection might sound sensible in the abstract, but in practice, qualified immunity is remarkably ineffective at fulfilling this intended purpose. I come back to the scholarship of Joanna Schwartz, who demonstrated two key points in a 2017 article called How Qualified Immunity Fails. First, only a small fraction of the cases in which qualified immunity could be raised are ultimately dismissed on these grounds — which indicates that other mechanisms were sufficient to weed out genuinely non‐meritorious claims. Second, when cases were dismissed on the basis of qualified immunity, this occurred far more frequently at the summary judgment stage of litigation, rather than at the motion‐to‐dismiss stage. In other words, even when defendants successfully got a claim dismissed on the basis of qualified immunity, this usually only occurred after discovery, which is generally the longest and most costly stage of litigation anyway. This means that qualified immunity is actually failing at its own goals of preventing government defendants from being subjected to lawsuits in the first place.
If it is actually the case, or it ends up being the case, that non‐meritorious civil rights litigation is a costly and distracting problem for police officers, then that issue is worth addressing. Perhaps it’s worth investigating whether something like anti‐SLAPP laws would be useful in the civil rights context, so that factually unsupported claims can be quickly dismissed. But qualified immunity is uniquely ill‐suited to address this supposed problem; the practical effect of the doctrine is not to weed out bad cases, but to deny relief to victims whose rights have been violated.
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This is not an exhaustive list of all the arguments surrounding qualified immunity, but they are the responses I’ve seen most frequently in the recent political dialogue. Many of the individuals who have raised these objections to eliminating qualified immunity have probably done so in good faith, based on a misunderstanding of what the doctrine actually is and how it works. Indeed, such misunderstanding is understandable, given how much misinformation and fear‐mongering there is surrounding the issue. But for those who are genuinely trying to understand, I hope this post will be a helpful resource in illustrating just how hollow the defense of qualified immunity truly is.