Qualified Immunity In America: An Overview & Conversation [POLICYbrief]
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Qualified Immunity In America: An Overview & Conversation [POLICYbrief]


Qualified immunity is a doctrine that was
created by the United States Supreme Court in 1967. The doctrine shields government officials
from liability for damages claims, even if they violated the Constitution if they’ve
not violated what the Supreme Court calls “clearly established law.” When the Supreme Court created qualified immunity,
it did so in the terms of the Court to protect from liability all but the plainly incompetent
or those who knowingly violate someone’s rights. There’s an ongoing, vigorous debate about
whether qualified immunity is important for police officers to have. The Supreme Court, in the early 2000s, decided
a case in which they held that lower courts deciding whether an officer was entitled to
qualified immunity had to do two things. One is that there needs to be a constitutional
violation. Do the actions of this officer violate a constitutional
right? Yes or no? That officer may still be entitled to qualified
immunity by virtue of the second inquiry which is whether or not that right had been clearly
established at the time of this now decided upon violation. There needs to be a prior court case holding
the conduct unconstitutional sufficiently similar, in factual terms, to the case before
the Court. That the factual circumstances of that case
would inform the defendant that the conduct was unconstitutional. If the answer to that question is no, I would
give that officer qualified immunity, but at least now we know moving forward if somebody
does something like this again it has been clearly established. The Supreme Court explained that that process
would help clearly establish the law in the future and give guidance to police officers
and police departments about the contours of the Constitution. In 2009, the Court said that it was unnecessary
for lower courts, when deciding qualified immunity motions, to answer the first question,
and that decision has allowed subsequent courts and the Supreme Court regularly to grant qualified
immunity holding that the law was not clearly established without ruling on the underlying
constitutional claim, meaning that the constitutional claim regarding that case remains undefined
and it becomes increasingly hard to clearly establish the law and get past the hurdle
of qualified immunity. In the courts around the country, there is
a great deal of confusion about what clearly established law means. Can only the Supreme Court clearly establish
the law? The Supreme Court recently said that they
assumed arguendo that decisions other than those by the Supreme Court could clearly establish
the law, but they’ve never come out and said clearly which courts can clearly establish
the law. It’s important for officers to have qualified
immunity so that they can perform the discretionary functions of their job without fear of liability. I have talked to many individuals who have
told me that in certain situations they knew and recognized that they were entitled to
use force and they told me that one of the things that prevented them from doing so was
the fear of being sued after the fact. That’s a dangerous situation. Law enforcement officers must be able to do
their job, including using deadly force if it’s appropriate, without that fear of liability
hanging over their head. When I studied the frequency with which police
officers contribute to settlements and judgments in lawsuits brought against them, I found that cities and counties that employ
those officers pay more than 99% of the dollars in those cases. So the financial justification for qualified
immunity as a shield against the financial burdens of litigation is simply untrue. The Supreme Court should reconsider qualified
immunity doctrine because, as Justice Sotomayor has explained, it renders the protections
of the Fourth Amendment hollow. When the Supreme Court grants qualified immunity
to officers who shoot people without justification, who shoot people against the orders of their
supervisors to stand down, it sends a message to officers and to society as a whole that
officers can shoot first and think later. Qualified immunity is not meant to put a roadblock
to the courthouse for legitimate plaintiffs who have suffered a violation at the hands
of law enforcement. If a law enforcement officer did nothing that
constituted a knowing violation or would satisfy a plainly incompetence, or almost a gross
incompetence level of misconduct, that person should not, that person being the law enforcement
officer, should not have to defend what he or she did in the courtroom.

11 Comments

  • Constantine Blayz

    QI is the most dangerous and unconstitutional doctrine that has allowed police and others to violate our inalienable rights.

    Take away qualified immunity and require all law enforcement to carry personal liability insurance coverage. QI is never been supported until a rogue Scotus ruled to protect itself and government.

  • Dustin Hedden

    qualified immunity allows police officers to conduct their Duty without being compromised because of a fear that they are going to be prosecuted simply for performing their job.

    any extra consideration that we can give to a police officer`s judgment is necessary so that officers can perform diligently and without harassment from frivolous expression

  • Richard Whitney Sr

    What they are saying is the corrupt judicial system is protecting their flunkies. Corrupt judges, corrupt cops, and corrupt government. You only way to fix corruption is with a 50 cent bullet.

  • Nappa Bond

    Personally I feel as tho police judges, and jurors should not have immunity period if you make a bad call you face the consequences period the end

  • Axus

    So it's basically Titles of Nobility ….
    History repeats again.
    If ignorance of the law is not an excuse for the people, how then is it possible for an official who took an oath to the constitution to be ignorant and therefore immune from punishment?
    If qualified immunity only exists for them to perform "discretionary function of their jobs," then why would they ever need to have reverence for the constitution or people if they can use discretion even if it's against the law and get a slap on the wrist?

  • Ryan Crabtree

    The Constitution is "clearly established law", further qualified immunity violates clearly established law, the 14th amendment and the founding principles and documents of the united states. It is a defacto creation of tyranny.

  • Ryan Crabtree

    "It is important for police to have qualified immunity so they can perform their job without fear of liability" is a desire to reverse the laws of cause and effect. They choose their actions and you want them to not be responsible for their choices. Imagine if the Nuremberg trials held this believe, they would have never happened.

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