Justice Sotomayor has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” In a Supreme Court opinion in 2018, joined by Ruth Bader Ginsberg, she wrote that qualified immunity “is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” Read her full dissent.
Qualified immunity’s roots trace back to racist and unjust legislation from the civil rights era.
1961 Jackson, Mississippi
A group of white and Black freedom riders entered a “whites only” area of a bus terminal. The group of 15 priests was violently beaten by the police, arrested, and jailed for a breach of peace. All of them sued the officers for their brutal, inhumane conduct.
1967 Pierson v. Ray
The case went all the way to the Supreme Court. There it was ruled that the officers should not be held liable "if they acted in good faith."
Qualified Immunity Arises
Because it was argued that the officers' aim was to "prevent violence"—even though they incited it by beating the peaceful freedom riders—their actions were deemed justifiable and thus protected. The foundation for qualified immunity was formed.
1969 The Nixon Administration
Arthur Fitzgerald was fired from the United States Air Force a year after he discovered and testified in Congress regarding $2 billion in cost overruns and technical problems for a program that had been buried by Pentagon officials. In the Watergate tapes, President Richard Nixon gloated about his responsibility in firing Fitzgerald.
Fitzgerald filed a lawsuit against government officials claiming that he was fired because of his whistleblower testimony.
“We profess to revere truth in the Government,” Mr. Fitzgerald said in an interview with The New York Times in 1983, “yet, when someone commits truth, they are in a heap of trouble.”
1982 Harlow v. Fitzgerald
This case went all the way to the Supreme Court, where it was ruled that all public officials were protected from constitutional liability by default as long as their "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
Qualified Immunity Solidified
Harlow v. Fitzgerald cemented qualified immunity’s place in history. The doctrine became an established judicial precedent in a case that didn’t even involve law enforcement.
Experts from across the political spectrum agree that qualified immunity is a harmful law and have demanded its reform.
Professor Reinert, a leading scholar on qualified immunity, recently published an article insisting that it is "flawed from the ground up." He states, "there is no foundation to the interpretive premise upon which qualified immunity rests." He shows how the original text of the 1871 Civil Rights Act contains explicit language demonstrating the inapplicability of qualified immunity to Section 1983, and that the Supreme Court has misapplied relevant canons of statutory interpretation. He states, "the Court has failed to grapple with the strong arguments that no immunity doctrine at all should apply in Section 1983 actions." Read the full argument.
Conservative Justice Thomas has also spoken out about his issues with qualified immunity, saying that he has “doubts about our qualified immunity jurisprudence” and that “(the Supreme Court’s) §1983 qualified immunity doctrine appears to stray from the statutory text.” Read his full dissent.
Even across the political aisle, there is contempt for the use of qualified immunity as a defense. Judge Willett, a Trump appointee, describes how, “(to) some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior––no matter how palpably unreasonable––as long as they were the first to behave badly.” He goes even further, describing how this judicially created doctrine “excuses constitutional violations.” Read his full argument.
A former Trump appointee, Grasz has questioned the qualified immunity doctrine and stated that it should be reformed. In his dissent in Kelsay v Ernst, Grasz asserts that failing to be clear on the law is “a judicially created exception to a federal statute that effectively prevents claimants from vindicating their constitutional rights.” Read his full dissent.
No. In an analysis of 1,183 lawsuits filed against state and local law enforcement officials, researchers found that qualified immunity filters out so few cases that it ultimately does not fulfill its original purpose: to protect police from discovery and trial in cases without merit.
Ending qualified immunity is a vital step to ensuring police accountability. Since qualified immunity leads to long, drawn-out, and expensive litigation, ending it would remove perceived barriers to the process of filing civil rights lawsuits for all victims.
No. Professor Schwartz has found in her research that over 99% of the time, officers are covered by the department and pay no damage or legal bills out-of-pocket.
No, Schwartz’s research finds that “qualified immunity almost certainly increases the cost, risk, and complexity of constitutional litigation, but has a more equivocal effect on attorneys’ case-selection decisions.” Lawyers often decline cases that are vulnerable to attack or dismissal on the grounds of qualified immunity, not because they’re not otherwise winnable cases. If qualified immunity was eliminated, the likelihood victims would be represented by an attorney and have their day in court would increase drastically.
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Campaign Zero would like to thank the diverse body of experts and organizations that have aided our research and campaign to end qualified immunity. In particular, we’d like to thank Professor Joanna Schwartz (UCLA), Keith Neely (Institute for Justice), ACLU Colorado, Luna Droubi (Beldock, Levine, and Hoffman LLP), and the Ben & Jerry Coalition among other experts for their contributions to CZ’s work to end qualified immunity.
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