Qualified immunity

Qualified Immunity is an often discussed and high-profile issue in the current public discourse. While many people understand that Qualified Immunity is used by police officers to avoid being held culpable for crimes, the practical mechanism by which this process occurs is generally not well understood by most citizens. That may stem from the fact that Qualified Immunity is not established by the Constitution, US law code, or the Bill of Rights, but rather through a series of Supreme Court rulings and “legal precedent”, meaning legal standards that are determined by previous rulings, and, importantly, previous legal concepts that are thought to generally be inferred as existent and widely understood. 

To begin our exploration of Qualified Immunity, it is important to understand that the term Qualified Immunity describes, in a nominal sense, the “Qualification,” or legal nature of government officials or officials acting on behalf of the authority of the state is such that they are “immune” from legal suits and penalties in certain situations. Qualified Immunity currently applies as a defense that is assessed by the judge before the trial’s opening statements occur. It has been and can be used to prevent a trial from occurring entirely in cases where it applies. 

The precise situations in which Qualified Immunity applies are somewhat troublesome to understand, and even judges, who are constitutionally responsible for interpreting and understanding the law, often grapple with the exact meaning and execution of the legal principle of Qualified Immunity. 

In order to best understand Qualified Immunity and how it functions within our current system, however, it is useful to start with its history and the manner in which it was incorporated into American law and practice. 

Qualified Immunity draws its origins from the English Common Law system and the principle of “In Good Faith” operation of a government official, wherein a government agent or executive (not traditionally a police or law enforcement officer) was entitled to some degree of protection from lawsuits that arose as a product of them faithfully executing the duties of their office “in good faith.” Because they interpreted the “in good faith” principle to be inherited from Britain on the basis that most Americans (specifically those serving on the Supreme Court) would agree that such a provision is commonly held to be a reasonable and established part of law, they formalized Qualified Immunity as a modern evolution of this concept through successive court rulings. Specifically, this means that at its inception, officials more simply had to prove that their actions were at least justified by the necessities of their public position.


To be as clear as possible, the U.S. Supreme Court, as the “highest court in the land”, enjoys the constitutional duty and privilege to determine these sorts of legal nuances at their approximate discretion, even in cases where the Legislative and Executive branches have acted to create codified law regarding the exact topics the Supreme Court is ruling on. In this way, the Supreme Court creates its own functional laws and standards. Additionally, this mechanism allows the Supreme Court to check the other branches of government by deeming legislation to be unconstitutional. They are free to comment on how laws should be interpreted, and create legal standards, like Qualified Immunity, through their rulings. While legal scholars certainly argue over whether or not this is constitutional in and of itself, this system is also certainly how the Supreme court has functioned historically, and how it functions today. 

 For example, The United States Supreme Court, in the case Harlow vs. Fitzgerald (1982), which arose in the aftermath of the Nixon-era Watergate Scandal, ruled that in the US, federal government officials are entitled to some degree of Qualified Immunity. Their reasoning being that there is the “need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.” This basically means that they believe government officials need some leeway in which the actions they perform for their jobs are insulated from lawsuits. This is deemed necessary due to the unspoken fact that people are often killed, inconvenienced, or put in jeopardy by the actions of the state and its agents. The statue is intentionally designed to insulate government agents from violations of established rights they inflict upon the people they are paid to serve. 

The Harlow v. Fitzgerald Ruling had precedent in the 1967 suit involving the Freedom Riders (Pierson vs. Ray 1967 US Supreme Court), a group in Mississippi, who entered a segregated area and were arrested due to their race in 1961. This case fundamentally established Qualified Immunity for the first time as a valid defense in the USA. The case was appealed up to the supreme court, where the court ruled that the officers were acting in good faith in the interest of preventing violence, and therefore were entitled to Qualified Immunity because they had the best interests of the execution of their public duties in mind. This was after the officers had pleaded that they had acted to arrest the Freedom Riders to prevent violence, not explicitly because the plaintiffs, the person or group bringing the case against another, were black. Of course, the arrests “to prevent violence” occurred not because the protestors would create violence, but because the white citizens in their segregated space were likely prone to violence against the black citizens. This begs the question why it wasn’t the white citizens who were imprisoned.

The Freedom Riders argued that the officers were acting specifically to enforce the segregation laws of Mississippi, which had been ruled federally illegal, and while that was indeed the case, the court ignored this nuance, in favor of the idea that the officers were following a statue (segregation laws in Mississippi) that they believed to be valid, meaning Qualified Immunity applied on the basis that the officers were acting in good faith and for the sake of faithfully fulfilling their duties of office. It should be noted that Qualified Immunity had not been used as a defense prior to this case in the USA, meaning that the statute was quite literally invented or “activated” at this time in order to protect white police officers from legal penalties for enforcing segregation. The racially-charged origins of the statue have, unfortunately, been reflected in the repeated application of the concept since that time.

As Qualified Immunity evolved, there have been a series of nuances, changes, and inclusions to the rule that have taken it to become more complex and enforceable than simply a measure of good faith and contextual legal knowledge. 

Perhaps most significantly, Qualified Immunity broadened its application in the US Supreme Court ruling Anderson v. Creighton, 483 U.S. 635 (1987), a case featuring the supreme court trial of an FBI officer who violated the fourth amendment. In this case, the ruling held that qualified immunity applies if the officer (a term which has since broadened from FBI officer to include police officers as well) or government agent could be construed as having thought in the moment that they were being lawful, considering “clearly established law and the information which the officer possessed”. This ruling functionally removed the idea that good faith or a preservation of rights was fundamentally important, thereby detaching Qualified Immunity from its origins, and the specific application of the proto-concept that had existed in Common Law.  

This is because the importance of the phrasing “clearly established law” in this ruling cannot be undersold. This ruling has commonly since been interpreted to mean that an officer or government official in question has to have been aware at the time of the incident in question of the existence of clearly established law which pertains to the exact situation which is occurring. 
So, for example, if a case with similar facts to the one in question did not exist at the time of this ruling, unless a new case is brought and results in clearly established law, the government official in question cannot be held accountable for his actions in court.

In practice, since the standard of Qualified Immunity is assessed on each applicable suit before the case sees the courtroom floor, the court is not required to assess as a matter of relevance whether civil rights were violated or if the government agent acted in good faith within the necessary and specific powers of their office at all, unless Qualified Immunity does not apply. 

This has resulted in the existence of Qualified Immunity as a mechanism by which wronged families and Americans are denied legal recourse all together—unless a plaintiff (the person bringing the suit) can find a case that already exists with almost the exact same case facts, thereby showing that how the officer should have acted was “clearly established law” at the time of the incident, the plaintiff will have the case thrown out on the grounds that Qualified Immunity applies. This is the case even when the violation of civil rights is apparent and egregious, and it is widely acknowledged that for this reason Qualified Immunity is not currently working as intended, or at least in a way that helps the American people fully realize their constitutional rights. Many legal scholars argue that with Qualified Immunity functioning in this way, Americans’ ability to defend their own rights against the state, even retroactively, is mostly defunct at this point in time.              

One example of this was a case which came out of a Texas Prison, wherein a prison guard sprayed a prisoner with pepper spray in the face for “no reason whatsoever”, but the court ruled Qualified Immunity applied, because previous cases had all been about prisoners merely being beaten for no reason whatsoever, not pepper sprayed, meaning that there was no “clearly established law” against pepper spraying prisoners for no reason. The level of sameness between a current and past case required for the Qualified Immunity defense to apply is somewhat subjective on the basis of the court, but generally the standard is similarly strict to this example. 

Of course, any reasonable person might know that it may be unconstitutional to pepper spray prisoners for no reason whatsoever, regardless of if the exact case had previously occurred. However, the burden of proof to prove Qualified Immunity doesn’t apply is on the plaintiff, and the standard is such that it must be “inarguable” that Qualified Immunity should not apply, which is an extremely difficult standard for any Plaintiff to meet. As a result, the Supreme Court historically, and recently, has ruled in favor of Qualified Immunity overwhelmingly, and time and time again, refuses to revisit the overall mechanism by which it operates, instead recently opting to reverse Qualified Immunity in only an extremely small number of the most irregular, extreme, and egregious cases of violation of rights.

Because of all of this, there are many bipartisan advocates for abolishing Qualified Immunity altogether. This wouldn’t typically harm or target regular individual police officers or government officials, either, as individual officers are typically indemnified by their organizations when suits are successfully brought against them. Abolishing Qualified Immunity, or at least modifying the standard of how it is applied, would likely result in plaintiffs having a much better chance at getting the justice they deserve. While the Supreme court is seemingly unwilling to change anything substantial, it may also be possible for local or federal governments to codify Qualified Immunity to function differently or not apply altogether using legislative powers, as was done by the New York City Council in late March, 2021, or by New Mexico in early April 2021. 

Sources (click to expand)

Chung, A. J., Jaimi Dowdell, Lawrence Hurley, Andrew. (2020, December 24). Rooted in racism: The origins of qualified immunity. Reuters. https://www.reuters.com/article/usa-police-immunity-history-idUSKBN28X1G2

Frequently Asked Questions About Ending Qualified Immunity. (n.d.). Institute for Justice. Retrieved March 24, 2021, from https://ij.org/issues/project-on-immunity-and-accountability/frequently-asked-questions-about-ending-qualified-immunity/

Liptak, A. (2021, March 8). Cracks in a Legal Shield for Officers’ Misconduct. The New York Times. https://www.nytimes.com/2021/03/08/us/supreme-court-qualified-immunity.html

News, A. B. C. (n.d.). New York City moves to end qualified immunity, making it the 1st city in US to do so. ABC News. Retrieved April 5, 2021, from https://abcnews.go.com/Politics/york-city-moves-end-qualified-immunity-making-1st/story?id=76752098

Qualified immunity. (n.d.-a). LII / Legal Information Institute. Retrieved March 22, 2021, from https://www.law.cornell.edu/wex/qualified_immunity

Qualified Immunity. (n.d.-b). Retrieved March 24, 2021, from https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-21/issue-1/qualified-immunity/

Qualified Immunity: A Legal, Practical, and Moral Failure. (2020, September 14). Cato Institute. https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure