What Is Qualified Immunity, Why Is It Wrong, and How Can It End?

After the police murder of George Floyd, you may have heard about a legal principle called "qualified immunity," which can shield the police from being held accountable when they violate people's rights. What is qualified immunity, and where does it come from? Why are activists and protesters trying to get rid of it? And how can qualified immunity be ended?

The doctrine of qualified immunity says that a government official, such as a police officer, can be sued for violating someone's constitutional rights only if it was very clear under the circumstances that the officer's conduct was wrong. In other words, even if a police officer violates your rights, he is "immune" -- meaning that he gets away with it -- unless the violation was obvious. The idea is that police officers and other officials need "breathing room" to deal with difficult real-life situations without worrying about getting sued and losing money.

There are many problems with this idea. Perhaps the most important is that police officers virtually never pay out of their own pockets when they are found liable for violating citizens' rights. The cities and towns they work for almost always pay on the officers's behalf. Instead of protecting individual officers' paychecks, qualified immunity just gives towns and cities a free pass. By doing so, it takes away a powerful incentive for state and local governments to better train and discipline their police forces.

Qualified immunity is also problematic because it was made up by judges, not created through the democratic process.  When people bring lawsuits for violations of their constitutional rights, they usually do so under a federal law called 42 U.S.C. 1983 (or "Section 1983"), passed in 1871 to fight the Ku Klux Klan. Section 1983 doesn't say anything about qualified immunity. The Supreme Court read the concept into the statute in 1967, and then changed the definition in 1982 to make it even more protective of government defendants. 

Here's the good news. People across the political spectrum are paying more attention to qualified immunity and its role in enabling police brutality. During recent street protests, protesters have been calling for an end to qualified immunity.

While lawyers have focused on getting the Supreme Court to overrule itself, Congress can end qualified immunity in an instant if it wants. The Supreme Court created qualified immunity as an "interpretation" of Section 1983. So, Congress can pass a one-sentence bill stating that the Supreme Court's interpretation is wrong. If a bill saying that there is no qualified immunity under Section 1983 becomes law, then qualified immunity is finished.

Earlier this week, Rep. Justin Amash (I-Mich) announced that he will be introducing a bill in the House of Representatives to end qualified immunity. Let's hope that citizen activism translates into action to honor George Floyd's legacy by promoting accountability for police violence.