Qualified immunity protects against frivolous lawsuits

Law enforcement reform has become hotly debated in the wake of the death of George Floyd. Mr. Floyd’s death at the hands of unprofessional and cruel police conduct has sparked a renewed effort on ways to reform what some consider a broken system that protects law enforcement officers from having to answer to allegations of misconduct. 

Qualified immunity is a legal measure that shields a government official — including law enforcement — from being sued on the basis that a plaintiff’s rights have been violated. Unless, of course, violation of a constitutional right has been “clearly established.” When determining whether or not this is the case, courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

Qualified immunity only applies to suits against government officials as individuals — not suits against the government — for damages caused by the officials’ actions. Although qualified immunity frequently appears in cases involving police officers, it also applies to most other executive branch officials. While judges, prosecutors, legislators and some other government officials do not receive qualified immunity, most are protected by other immunity doctrines.

Even though the Supreme Court recently declined to review the doctrine of qualified immunity for law enforcement, there are dissenting opinions on the court including Justice Thomas and Justice Sotomayor, who feel that the Supreme Court should re-examine it. 

While Congress and other state legislatures, like in Colorado, have looked to do away with this protection, how it works in practicality and when it is applied needs to be understood in order to consider whether qualified immunity should be reformed.

A Texas state trooper pulled over a woman in 2018  and arrested her for driving while intoxicated. After the arrest, she filed a complaint that alleged the trooper sexually assaulted her during the traffic stop. Well-known civil rights attorney Lee Merritt, who represented the woman, and activist Shaun King, shared her claim more than 50,000 times online.  

This, with the help of reports based on the narrative created by the woman’s legal team, led to a conviction of the officer in the court of public opinion.

Still, in almost every jurisdiction, complaints filed against a law enforcement officer must be investigated. Texas Department of Public Safety complaints can be filed via email, fax or mail.  

In 2018, the year of this incident, Texas DPS made nearly 3 million stops and received a total of 1148 complaints for the over 10,000 personnel staffing the agency. In 2018, out of the 1148 complaints Texas DPS received, 16 employees were discharged from the department as a result of an Office of Inspector General (OIG) investigation and 25 employees resigned/retired as a result.

Once a complaint is filed, the agency, and in the case of departments with a Civilian Complaint Review Board (CCRB), reviews and investigates each complaint. If the complaint involves force, the local prosecutor’s office and the federal system’s OIG, will also investigate the complaint. If the complaint involves a potential civil rights issue, a state attorney general or the U.S. Department of Justice will also investigate the incident. This means at least four investigations of any incident involving a complaint against a law enforcement officer are conducted. 

Until those investigations are resolved, the law enforcement officer remains under investigation. Only after all four of those investigations are resolved and show that the officer acted within the agencies’ guidelines, lawfully, constitutionally and appropriately, will that officer be covered by the provisions of “qualified immunity” or “scoped.”

In this case, the legal team was so egregious that it mistakenly identified the involved trooper by the wrong name, leading the second trooper to receive threats for the alleged unethical conduct that he did not commit.  

Had this case gotten to the point of a lawsuit, if the trooper’s conduct was found to be unconstitutional or unethical, he may have been left exposed by his agency to any legal ramifications from that unethical conduct. If his conduct was found justified though a constitutional question was raised, then the doctrine of qualified immunity would apply and although he may still be sued, he would not be liable if the result was unfavorable.   

This example speaks to the need for qualified immunity, especially since all lawyers know how to file lawsuits and their actions are not bound by an investigation. The fear of these frivolous types of complaints and lawsuits could impact officers’ ability to act and could cost lives.

Donald J. Mihalek is the executive vice president of the Federal Law Enforcement Officers Association (FLEOA) Foundation and a retired senior Secret Service agent and former police officer.