Qualified Immunity: Where it Came From and Why it Needs to Go

Police brutality is a systemic issue which requires several levels of wide spread systemic change to see the end of anytime soon. There are a variety of barriers to changing how police interact with the communities they serve between training, oversight and disciplinary action. One of the biggest talking points over recent weeks has been the legal doctrine of qualified immunity, which many consider to be a major barrier to police reform. If America ever hopes to hold law enforcers to any standard of accountability for violent policing then it is imperative to understand what qualified immunity is, where it comes from, how it has evolved, how it is used and why it needs to go.


The origins of qualified Immunity can be traced back to Pierson V Ray. The case involved 15 priests taking part in the Freedom Rides, a series of protests against segregation involving blacks and whites riding buses together through the American south in 1961. The priests in question, which included 3 black priests, stopped for lunch at a coffee shop on their way to Chatanooga. While entering they were stopped by two offers who asked them to leave. They refused and were subsequently arrested and jailed for “breach of peace”, an old section of Mississippi code (now repealed) which “makes guilty of a misdemeanor anyone who congregates with others in a public place under circumstances such that a breach of the peace may be occasioned thereby, and refuses to move on when ordered to do so by a police officer”. When brought to court the case was dismissed on account of the judge finding no violation of the law. This led to the priests seeking damages for being falsely arrested and imprisoned for exercising their civil rights (being involved in the freedom rides protests). The judge ruled in favor of police, who claimed they were attempting to prevent what they perceived to be the threat of imminent violence from a gathering crowd. This case justified the need for qualified immunity positing “[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 had probable cause, and being mulcted in damages if he does.” In other words, the rationale was that cops have the raw deal of having to choose between neglecting their duty as law enforcers if they decide not to arrest even if they feel they have probable cause or being inundated with charges if they decide to arrest. Rock and a hard place scenario.

Another important case that led to our current understanding of qualified immunity was Bivens v. Six Unknown Named Agents where Webster Bivens home was searched by the Federal Bureau of Narcotics without a warrant and he was arrested. Drug charges were filed and dropped and Bivens filed for damages for violations of his fourth amendment rights, which grants freedom from unreasonable searches and seizures. Under the Bivens case one can sue if federal officials violate ones constitutional rights. However this does not mean that all violations of constitutional rights can be subject to a Bivens action, particularly if an officer “believed in good faith their conduct was lawful/reasonable”, under the doctrine of qualified immunity.

This brings us to Harlow v. Fitzgerald in 1982, the landmark case that expanded the qualified immunity defense to state “Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”. Four years later the defense was changed yet again replacing “reasonable person” with “all but the plainly incompetent”.

There are definitely more legal intricacies in how this doctrine has evolved. However this is the layman’s version of how the doctrine has come to be what it is today and should give an idea of why it is proving to be such a massive barrier to changing an increasingly violent police culture. Under qualified immunity public officials can be held accountable if they violate a “clearly established” right in light of “previously existing case law” as a precedent. This means merely breaking what George Leef referred to as a “legal rule” wasn’t enough. To argue that an official violated a clearly established right/ law you would literally require a previous case which was similar enough in details to be used as a precedent to the case being fought. That is the extremely narrow threshold a plaintiff needs to cross to be able to convict a police officer of any wrong doing.


So, that brings us to why this matters today. A Reuters investigation found that qualified immunity was used as a winning defense for police in 56% of cases between 2017 and 2019. Laszlo Latits, Gerrit Vos, Johnny Leija and David Becker are all cases of police being cleared of accountability for either killing or causing irreparable harm (in the case of Becker) through the use of excessive force. According to the Reuters investigation whether or not qualified immunity is granted is based on a test of two questions. The first is whether the use of force violated fourth amendment rights. If the answer is no, it is granted immediately. If yes, the second question is whether police should have known their actions violating a “clearly established” court precedent, the narrow threshold that I mentioned above. If the answer is no, qualified immunity is granted. If yes, then the case goes to trial. Even with measures such as body cameras in place to increase police accountability the doctrine still serves as a powerful barrier from officers facing any real consequences for using excessive force. In fact, all of the cases mentioned above from the Reuters investigation were caught on video. All of those cases ended the same.

Qualified immunity is one barrier, but definitely not the only one. There is entire legal system in play ruling in favor of officers after weighing evidence without qualified immunity coming into play. In many high profile cases such as those of Eric Garner, and Tamir Rice the financial settlements that are offered to the survivors of the victims often come from local governments meaning the officers involved rarely pay anything out of pocket or bare any real legal consequences at all. In both cases the officers faced no convictions for the deaths, as well as the cases of Freddie Grey, Michael Brown and Stephon Clark.

The reality is black men are twice as more likely to be killed by police than white men, with black women statistically nearly mimicking the same pattern in comparison to white women. While there are obviously outliers where qualified immunity doesn’t apply there is no denying that when it comes to police accountability it is a major factor that allows what some refer to as the “bad apples” to utilize excessive force with impunity and is a massive barrier to victims or survivors of victims of police violence to do anything when such cases arise. A doctrine that was born as a way to make quick judgements on the part of cops easier has evolved into a doctrine that absolves them of any guilt in cases where guilt is obvious and leaves the people they’ve sworn to serve entirely helpless. The phrase is a few “bad apples”, but at this point it seems to be the whole tree. A system that both produces violence prone cops and does nothing to hold them to account.

As I write this progress is already being made. Colorado recently signed a the landmark Enhanced Law Enforcement Integrity Act into law on top of banning choke-holds as well as lethal force being used for non-violent offenses. The Law Enforcement Integrity Act allows plaintiffs to bypass the qualified immunity defense in situations like some of the cases I’ve mentioned. George Floyds murder at the hands of police unleashed a true tidal wave of outrage and qualified immunity has been one of the main targets of much of the pushback against police violence. However, Colorado is but one state. With the Supreme Courts recent decision to not weigh in on the doctrine and re-examine some its glaring flaws, it is clear that even with outrage and cries for change pouring in from all corners, it is still a long road to doing away with the defense and an even longer one to true police reform.



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