What is Qualified Immunity and Why Does it Exist?
The George Floyd protests of July 2020 cast a renewed light on 42 U.S.C. §1983 and qualified immunity. The former references Section 1983 of Title 42 of the United States Code, which gives citizens the right to sue government employees for civil rights violations.
However, because of qualified immunity, these suits are rarely successful. Qualified immunity is the judicial doctrine that grants immunity to police officers, administrators and other public officials who are alleged to have violated the rights of a person while performing his or her job.
For qualified immunity to be valid, the official must show two things. First, that the facts alleged by the plaintiff, when taken in the light most favorable to the plaintiff, do not amount to a violation of a Constitutionally-protected right. Second, if a right was violated, the defendant must show that the right was not so clearly established that he or she should have been reasonably aware that his or her conduct would clearly be unlawful
The second point is highly criticized.
To show a clearly established law, the court requires plaintiffs to point to an already existing judicial decision with similar facts, thus, according to writer Julian Sanchez, “the first person to litigate a specific harm is out of luck…the right violated [will not have been] clearly established.”
One egregious matter comes to mind. The U.S. Court of Appeals for the Ninth Circuit heard a matter where a SWAT team fired tear gas grenades into the wrong person’s home. The panel concluded that the SWAT officers violated the plaintiff’s Fourth Amendment rights. However, the plaintiff’s case did not clearly establish a sufficiently specific violation; the officers were granted immunity.
Justice Clarence Thomas voiced his opinion in Ziglar v. Abbasi, 137 S. Ct 1843 (2017):
I write…to note my growing concern with our qualified immunity jurisprudence…we have completely reformulated qualified immunity along principles not at all embodied in the common law…we grant immunity to any officer whose conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. We apply this standard across and without regard to the precise nature of the various officials’ duties or the precise character of the particular rights alleged to have been violated.
Be that as it may, qualified immunity is important. It balances two important interests: (1) the need to hold public officials accountable when they exercise power irresponsibly, and (2) the need to shield officials from harassment, distraction, and liability when they reasonably perform their duties. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009).
Several members of Congress have proposed acts that would reform or ban qualified immunity. Justin Amash, a Libertarian from Michigan, proposed the Ending Qualified Immunity Act. Karen Bass and Jerold Nadler introduced the Justice in Policing Act of 2021, which, among other things, would eliminate qualified immunity for law enforcement.
Mike Brain, a Senator from Indiana, introduced the Reforming Qualified Immunity Act. It reinstates the original standard. Government employees would be allowed to claim qualified immunity only when (1) conduct alleged to be unlawful had previously been authorized or required by federal or state statute or regulation and (2) a court had found that alleged unlawful conduct was consistent with the Constitution and federal laws.
If you or a loved one has been injured due to negligence or wrongful conduct, our attorneys can help get you the compensation you deserve. Contact Cohen & Cohen today at (202) 955-4529 for a free case evaluation.
