Qualified immunity is not clear-cut

The New York City Council recently voted to pass a bill aimed at dismantling what’s known as “qualified immunity,” a legal defense to civil actions filed against police officers and other officials for allegedly violating an individual’s constitutional rights. 

New York City Mayor Bill DeBlasio (D) is expected to sign the legislation, which comes as the criminal trial of former Minneapolis police officer Derek Chauvin enters its second week. Chauvin is charged with two counts of murder and one manslaughter charge in connection with the death of George Floyd, an event that sparked Black Lives Matter protests across the globe over the perceived overuse of police force against people of color in the United States. The trial boils down to a single factual issue: whether Chauvin crossed the line between the reasonable use of police force to manage the situation and willful criminal activity that contributed to Floyd’s death at the scene. This is a similar question raised by qualified immunity — but in the context of a civil action for money damages, not a criminal one.

It comes as a surprise to many that the Constitution’s Bill of Rights, including the Fourth Amendment’s ban on unreasonable searches and seizures, is not self-executing. That is, Congress must generally pass a law implementing the Constitution and enabling parties to bring lawsuits in court to enforce its provisions. Shortly after the Civil War, Congress enacted the Civil Rights Act of 1871 (also known as the 1871 Ku Klux Klan Act), codified at 42 U.S.C. Section 1983, which allows people to sue the government for civil rights violations, including claims of excessive police force. It was passed during the Reconstruction Era to protect the constitutional rights of African Americans who were newly-freed from enslavement but still subject to widespread racial violence. 

In 1967, the U.S. Supreme Court issued the first in a series of decisions establishing a defense to section 1983 actions that’s now known as qualified immunity. The notion is that police cannot be expected to predict how courts will rule on novel constitutional questions when they make in-the-moment decisions regarding the use of force. That case, Pierson v. Ray, involved the arrest of so-called Freedom Riders, including 15 white and Black Episcopal clergymen, who attempted to use segregated facilities at a bus terminal in Jackson, Miss., in 1961. They were arrested under a Mississippi code provision that made it a misdemeanor to congregate in a public place in a way that could breach the peace. They prevailed at their criminal trial, and subsequently sued the officers under section 1983, seeking money damages for alleged false arrest and imprisonment. The Mississippi statute was struck down in court as unconstitutional four years after the arrests, so the officers argued in the civil case that they had no way of knowing that the law would later be deemed illegal and that the lawsuit against them should be dismissed.

The Supreme Court agreed with the officers in theory, but nonetheless held that the suit could go forward because the Freedom Riders “did not simply argue that they were arrested under a statute later held unconstitutional,” but “that the police officers arrested them solely for attempting to use the ‘White Only’ waiting room, that no crowd was present, and that no one threatened violence or seemed about to cause a disturbance.” This wasn’t a claim for which the officers could argue constitutional ignorance, so they lost their bid for qualified immunity.

Qualified immunity has nonetheless evolved into what can be a formidable defense. In 1982, the Supreme Court in Harlow v. Fitzgerald established the modern test: Officers having to exercise discretion in a particular situation are generally shielded from liability if their conduct doesn’t violate “clearly established” statutory or constitutional rights of which a reasonable person would have known. If there is already precedent from a court that certain behavior is unconstitutional, therefore, qualified immunity is less likely to apply. But finding a precise prior case establishing an action as unconstitutional is often hard for plaintiffs to achieve, opening the door for an officer to get the lawsuit thrown out altogether.

Thus, even if police action is ultimately unconstitutional, the police can walk away from a suit for money damages if it wasn’t obvious at the time under existing case law that the action was unconstitutional. For example, the U.S. Court of Appeals for the Sixth Circuit held in 2018 that an officer who released a police dog on a man who was hiding in a basement but had revealed himself with hands in the air before the dog attacked did not violate any clearly established law. The plaintiff “does not point us to any case law suggesting that raising his hands, on its own, is enough to put [an officer] on notice that a canine apprehension was unlawful in these circumstances,” the court wrote.

The NYC law posits that if a city employee “allegedly deprives a person” of his or her “local right of security against unreasonable search and seizure and against excessive force,” the employee “would not be allowed qualified immunity, or any substantially equivalent immunity, as a defense.” The problem with this proposed fix is that states and municipalities cannot amend federal law, which here is rooted in the Constitution. Moreover, there are legitimate policy rationales underlying the qualified immunity doctrine, which arguably go beyond what critics claim was sheer racism in the 1960’s. Congress, once again, is the body that must act here — a tall order given its overall polarization and dysfunction. 

In Pierson, the Supreme Court explained the rationale behind qualified immunity this way: “A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.” If police officers were worried about possibly having to pay thousands of dollars in money damages to arrestees for a misstep in executing in-the-moment police authority, they could be disincentivized from doing their jobs and the safety of the public will suffer as a result. 

As with most tough problems, the propriety and scope of qualified immunity is not clear-cut. What is clear is the need for police reform in America, including around the incentives and disincentives that possible litigation creates for both good policing and police misconduct. And it’s not something that nine unelected members of the Supreme Court should definitely decide for the rest of us.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.”Follow her on Twitter and Instagram @kimwehle.