May 2021
Qualified immunity is a legal doctrine that was established by the U.S. Supreme Court in the 1960s. While it has received significant attention in the context of policing, its original intent was to protect all government employees acting in good faith and discourage frivolous federal civil lawsuits against them. Over the past 50 years, the Supreme Court has modified qualified immunity; it now has less to do with officers acting in “good faith” and more to do with whether officers violated “clearly established law.” According to the Court, the law is not clearly established to put an officer on notice of unconstitutional conduct unless the plaintiff can point to a prior court decision, usually from the federal appellate court with jurisdiction, with virtually identical facts. As such, qualified immunity has come to mean that officers who are accused of using excessive force or engaging in other alleged misconduct (for example, an improper search) may be protected from civil suit because an identical prior instance that was found unconstitutional could not be found. Criminal prosecution is not bound by qualified immunity.
Similarly, state governments have sovereign immunity, meaning that they cannot be sued for damages in federal court. While local governments may be sued, the liability standard is difficult to meet, in that plaintiffs must demonstrate that the unconstitutional actions of individual public employees are clearly tied to official government policy. Though there are legitimate purposes for these doctrines and legal precedents, they have been broadly applied in ways that make it difficult for plaintiffs to obtain monetary compensation for the harms caused by excessive force and other forms of misconduct. This undermines efforts to hold law enforcement agencies and their officers accountable for such incidents.
Summary Assessment
- Qualified immunity, as it has evolved over time based on case law, has tipped the scales of justice in favor of the defendant (police officer) over the plaintiff (injured party), rendering it difficult for plaintiffs to have their day in court and obtain monetary damages.
- In practice, the “clearly established” standard grants immunity from suit to officers unless there is a prior written legal decision about the precise unlawful conduct for which the plaintiff is seeking remedy. Removing this standard, particularly at the federal level, would create more parity between the defendant and plaintiff while maintaining the doctrine's original intent, which is to shield public employees who act in good faith from liability.
- The Monell standard presents a very high bar in terms of local government liability for officer misconduct. It should be revised to comport with the more typical respondeat superior standard, which holds the employer liable for the wrongful acts of the employee when engaged in the course of business.
- In order to ensure that successful plaintiffs receive remedy, officers should be uniformly indemnified by their municipalities. However, legislation could hold individual officers acting in bad faith liable up to a certain reasonable monetary threshold, in order to incentivize officer accountability and personal responsibility.
- Another potential state legislative remedy is for local governments to reward police departments that have sound policies, along with below-threshold numbers of police misconduct incidents, with budget incentives to maintain those practices.
- Recent state and local measures to limit or eliminate qualified immunity should be evaluated to discern their impact on court case outcomes and their success in incentivizing agencies to adopt reforms to policies and practices in areas such as officer hiring, training, supervision, and accountability measures.
Legal Framework
It is essential in a democratic society that people who believe that their rights have been violated have the ability to seek remedy in a court of law. As such, individual police officers and the governmental agencies that employ them should be subject to liability. Liability also incentivizes agencies and officers to take adequate precautions to prevent such violations. Like all employers, policing agencies have a responsibility to ensure that their officers act in a manner that respects rights and minimizes risk of violations. A sound liability scheme would provide redress for victims, while also encouraging agencies to develop policies, practices, training, and discipline systems that ensure officers respect the constitutional rights of all community members. Under the existing system, none of this occurs.
Qualified Immunity
The first factor that compromises government liability is that officers are shielded from civil suit through qualified immunity. The first U.S. Supreme Court case establishing qualified immunity was Pierson v. Ray (1967). Prior to Pierson, cases decided by both the high Court and state supreme courts held government agent defendants liable even if they acted in good faith. In Harlow v. Fitzgerald (1982), the Supreme Court expanded its definition of qualified immunity, holding that it applies to "government officials performing discretionary functions…insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." This decision was made in the interest of protecting government employees from being sued when they act in good faith.
In many courts and cases, the term “precedent” in this context has been applied in an exacting manner that has substantially raised the hurdle for plaintiffs seeking remedy for harms caused by officers. It generally means there must be a prior written legal decision about the precise conduct the plaintiff claims is a deprivation of constitutional rights.
In Saucier v. Katz (2001), the Supreme Court established a two-part test to determine the appropriate application of qualified immunity. The first is a determination of whether there is a constitutional violation if the facts of the case are proven to be true. The second is whether the constitutional right that was violated was clearly established by legal precedent. In many courts and cases, the term “precedent” in this context has been applied in an exacting manner that has substantially raised the hurdle for plaintiffs seeking remedy for harms caused by officers. It generally means there must be a prior written legal decision about the precise conduct the plaintiff claims is a deprivation of constitutional rights. Raising the bar still higher, that prior decision must be applicable to the federal circuit hearing the case. For example, if a plaintiff is seeking damages for a dog bite injury because an officer ordered the dog to attack despite the fact that the plaintiff was unarmed, lying down, and not resisting arrest, the officer would be protected from suit unless a prior court decision established that the attack of an unarmed person in a prone position by a police dog upon command from an officer is unconstitutional (see Baxter v. Bracey (2020)). No amount of case law is expansive enough to encompass the wide array of scenarios that have occurred or are likely to occur in the context of police misconduct, leading many cases to be dismissed on the basis of qualified immunity. Moreover, officers are not sufficiently trained in the intricacies of case law to recognize the permissibility of specific actions under various scenarios (e.g., that they can allow the dog to attack when a suspect is lying down, but not sitting up) – nor should they be expected to.
Governmental Liability
The second factor that compromises governmental liability – and ultimately police department accountability – is a result of case law. On the federal level, the government is protected from liability through sovereign immunity, a legal doctrine based on a British common law precedent that ensured the king could not be sued. Plaintiffs generally, therefore, cannot obtain damages from the federal government except to the extent that federal laws waive this immunity. At the state level, governments are shielded from civil liability by the 11th Amendment.
Wrongful and unconstitutional conduct such as excessive use of force would have to be written in agency policy, or be an informal custom that leads to “practices so persistent and widespread as to practically have the force of law” in order for such agencies to be held responsible for police misconduct.
Local governments do not enjoy sovereign immunity, but their liability is nonetheless restricted under the Monell standard. In the 1978 Monell v. Department of Social Services of the City of New York ruling, the Supreme Court overturned a prior ruling in Monroe v. Pape (1961), which held that municipalities could not be sued for civil rights violations. Instead, Monell ruled that governments could be sued for damages, but that they are only responsible for their employees’ deprivations of constitutional rights if a formal government policy or an informal custom causes the constitutional violation. This means that wrongful and unconstitutional conduct such as excessive use of force would have to be written in agency policy, or be an informal custom that leads to “practices so persistent and widespread as to practically have the force of law” (see Connick v. Thompson (2011)) in order for such agencies to be held responsible for police misconduct. Conversely, the failure of an agency to have policy in place or to discipline officers when they are out of compliance with it does not necessarily serve as a basis for liability. In essence, Monell imposes a higher standard than the more typical respondeat superior doctrine, for which the employer is held liable for the wrongful acts of the employee when engaged in the course of business. Not surprisingly, plaintiffs are often foreclosed from seeking damages against municipalities because of the Monell doctrine. Indeed, no Supreme Court case since Monell has found that this test was met.
Legal Implications and Outcomes
The current legal standards of qualified immunity and Monell present a very high bar for plaintiffs to meet, leaving them with little recourse for seeking justice and recovering damages even after having suffered serious harm. Supreme Court rulings on cases of police use of excessive force from 2005 through 2019 have increasingly granted immunity, particularly in recent years. Moreover, the Supreme Court has accepted reviews of police appeals denying qualified immunity at three times the rate of appeals from plaintiffs seeking to overturn a finding granting immunity and has “nearly always” ruled in favor of the police.
A study of indemnification practices in 81 law enforcement agencies found that officers were indemnified in 99.98% of cases in which judgments were entered against them – even when officers were fired, disciplined, or criminally prosecuted.
Defenders of qualified immunity argue that perceptions of legal risks may discourage people afraid of litigation from entering the policing profession and prompt others to exit it, increasing vacancies and creating recruitment challenges. While this hypothesis has not been empirically investigated, qualitative research suggests that the threat of litigation is not front of mind for officers in the course of doing their jobs. That stands to reason, given that even when plaintiffs are able to prevail in civil suits, officers rarely, if ever, have to pay for any damages awarded against them. Nor do they have to cover their own legal fees. Damages are paid by their local governments—a practice called indemnification—and legal counsel is provided by unions or covered by the governmental entity. A study of indemnification practices in 81 law enforcement agencies found that officers were indemnified in 99.98% of cases in which judgments were entered against them – even when officers were fired, disciplined, or criminally prosecuted. Some have proposed that officers obtain private liability insurance as a safeguard, the cost of which is relatively modest, ranging from $500 to about $1,500 annually based on one vendor’s estimate. But such policies may have broad exclusions, meaning that the most egregious cases of confirmed police violence would likely not be covered.
Current Practice and Research
Little is known about the relationship between police liability and misconduct. But a quasi-experimental analysis of 50,000 public complaints against Chicago police officers over a 13-year period sheds some light on the topic. The study found that public complaints were highly associated with misconduct identified by officers’ supervisors, even when controlling for officer characteristics and those of their patrol assignments. This finding implies that public complaints are an indicator of misconduct. The study also concluded that lawsuits against police officers that are sustained are associated with reductions in the rate of subsequent public complaints against the officer as well as increases in the likelihood that the officer will leave the police department. Research, however, is silent on the impact of qualified immunity on police behaviors, use of force, and crime. There are no empirical studies on these topics. One study examined the impact of qualified immunity on stop-and-frisk weapons searches, but the study was a theoretical exploration employing game theory. The lack of research is explained by the infeasibility of identifying a suitable comparison or baseline against which to assess the impact of qualified immunity, given that the doctrine has been in place for decades and is applicable to all states and localities. Some studies have explored the impact of qualified immunity on case processing and case outcomes. An analysis of 1,183 civil rights violation cases filed against law enforcement in five federal court districts, along with surveys and interviews of attorneys involved in these cases, found that qualified immunity increased the risks and costs of litigation to plaintiffs. The study found that qualified immunity delayed the resolution of cases owing to motions and interlocutory appeals of denials. This effect increased the costs of preparing for trial for both plaintiff and defendant while also weakening the plaintiff’s case over time. Most of the research on the effects of the qualified immunity doctrine explores the plaintiff’s ability to recover damages. Research documents numerous cases in which a plaintiff was seriously injured or killed as a result of police misconduct, but the plaintiff or his or her family could not recover damages against the officer or government because of the doctrines of qualified and sovereign immunity. One scholar's review of cases found that qualified immunity is raised as a defense in 14% of cases at the motion to dismiss stage. It also found that district courts dismissed 4% of cases at the summary judgment stage on qualified immunity grounds. Others examined the same dataset, finding that of the approximately one-third of cases where qualified immunity was raised, about 30% of those motions were granted in whole, part, or in the alternative.
An analysis of 1,183 civil rights violation cases filed against law enforcement in five federal court districts, along with surveys and interviews of attorneys involved in these cases, found that qualified immunity increased the risks and costs of litigation to plaintiffs.
Qualified immunity likely affects a much higher share of potential cases against police officers than studies would indicate. Research to date has not quantified the degree to which qualified immunity results in settlements favorable to officers, nor how much it may deter lawsuits from being filed against officers in the first place. Some have argued that while ending qualified immunity would lead to more cases being filed, it would not affect the share of cases for which the plaintiff prevails. In addition, a survey of and interviews with attorneys who brought cases against police officers on behalf of plaintiffs found that attorneys do not routinely decline cases based on the risk that qualified immunity would make the case vulnerable to attack or dismissal.
Policy Responses
As of May 2021, qualified immunity reform legislation has been introduced in 11 states. Most of the bills would eliminate qualified immunity as a defense in claims brought under state civil rights statutes, as opposed to federal causes of action under 42 § 1983. This includes legislation introduced in Illinois, Maine, Maryland, Montana, New Hampshire, New Jersey, Oklahoma, and Utah. The Utah bill would require officers to obtain insurance or a bond to cover any statutory damages. In 2020, Colorado and Connecticut restricted qualified immunity while requiring that local governments indemnify officers for judgments against them that are associated with conduct within the scope of their employment. The Colorado law limits the liability of individual officers to 5% of the total proven damages, up to $25,000, after which the government would cover the remainder. If the local police department determines the officer acted in good faith, the new law specifies that the officer does not have to pay this amount. The Connecticut reform is more limited, preserving qualified immunity if the officer had an "objectively good faith belief" that his or her conduct did not violate the law. Therefore, cases in which a plaintiff can merely prove the officer should have known the conduct was wrong may still be stymied. Indemnification is required unless the officer's conduct was “a malicious, wanton, or willful act.” While prevailing plaintiffs under the new Colorado law are entitled to recover legal fees, Connecticut plaintiffs can only do so if they can show the conduct was “deliberate, willful, or committed with reckless indifference.”
Revisions to qualified immunity must be considered alongside changes to local governmental liability as governed by the Monell standard, which only holds local governments liable for officer misconduct if the officer’s actions were established in agency policies, unofficial custom, or with a deliberate indifference to train officers.
Most recently, New Mexico passed a bill prohibiting most government employees, including police officers, from using qualified immunity as a defense in civil rights lawsuits in state court. The measure guarantees indemnification of police officers and caps awards to plaintiffs for damages at $2 million. In addition, the New York City Council passed a measure that allows plaintiffs “a local right of security against unreasonable search and seizure and against excessive force” and bars police officers from claiming qualified immunity in cases of unreasonable search and seizure and excessive force. Evaluations of the impact of these policy changes will be useful in guiding other jurisdictions contemplating similar measures. At the federal level, the George Floyd Justice in Policing Act of 2020 passed by the House eliminates qualified immunity by specifying that even a reasonable, good-faith belief by the defendant that his or her conduct was lawful is not a defense, nor is the claim that the constitutional provision or law violated was not clearly established. Separately, the Reforming Qualified Immunity Act of 2020, introduced by Senator Mike Braun, would have preserved qualified immunity, but required a police officer to prove that there was a statute or court case in the relevant jurisdiction showing his or her conduct was expressly authorized.
Critical Policy Elements
- Efforts to revise qualified immunity and legal doctrines affecting government liability should comport with the goals of providing redress to people whose rights were violated and ensuring agencies internalize the costs of officer misconduct.
- One option for restructuring qualified immunity would be allowing its use only in cases for which the officer can prove the alleged unlawful misconduct had been sanctioned or prescribed by federal or state statute or regulation or department policy, or that a court had found the conduct was consistent with the U.S. Constitution and state and federal laws.
- Revisions to qualified immunity must be considered alongside changes to local governmental liability as governed by the Monell standard, which only holds local governments liable for officer misconduct if the officer’s actions were established in agency policies, unofficial custom, or with a deliberate indifference to train officers. The current legal framework does not hold agencies accountable for inadequate policies, nor does it incentivize reforms and officer accountability mechanisms.
- Agencies should be incentivized to develop trainings, policies, and practices that promote constitutional policing and hold officers accountable for violations and misconduct. They should be held liable for failing to do so.
- Indemnification is important to ensure that plaintiffs can recover damages, given that many officers lack sufficient resources and insurance to cover significant damage awards. As such, local governments should indemnify all officers regardless of whether they were acting in bad faith, so long as their conduct was within the scope of employment. Indemnification is especially important if the Monell standard remains intact, since the bar for injured plaintiffs to recover directly from local governments is so high.
- Measures such as the Colorado bill that holds officers liable up to a $25,000 threshold may be effective in enhancing individual officer accountability.
Expected Impacts
Preventing Misuse of Force
No research has directly tied qualified or sovereign immunity, or reforms to them, to changes in rates of misuse of force. Theoretically, jurisdictions that face a real financial risk from officer misconduct might do a better job of writing clear policies, training against misconduct, and holding officers more accountable.
Enhancing Transparency and Accountability
Qualified and sovereign immunity for federal civil rights actions, and for most states, compromise accountability on the part of law enforcement officers and agencies because many plaintiffs are prevented from bringing their cases to court. Conceivably, reforms to these doctrines could, in turn, enhance accountability. Research on recent state qualified immunity reforms could shed light on this relationship.
Strengthening Community Trust
The most direct and important impact of adopting revisions to qualified and governmental immunity would be that victims and families of police misconduct would have their day in court. While research is lacking on this point, the status quo may contribute to distrust of police, especially in communities that have borne the brunt of police violence and misconduct.
Reducing Racial Disparities
Since Black, Latinx and Native American people are disproportionate victims of officer misconduct, reforms to qualified immunity could reduce racial disparities, but this has not been empirically investigated. No research has examined the disparate impact of cases dismissed owing to qualified immunity by race or ethnicity of plaintiff, nor is there any evidence to suggest that reductions in police misconduct based on reforms to qualified immunity have had a positive or negative impact on people of color.
Ensuring Officer Safety
Officer safety could be served if reforms to qualified immunity lead officers to refrain from excessive use of force, but this hypothesis has not been empirically investigated. On the other hand, officers who perceive a risk of being sued may be reluctant to perform their duties or hesitate to take action in a manner that compromises their safety. More research on officer perceptions and behaviors is needed to conclusively assess impacts.
Promoting Public Safety
Critics of qualified immunity reforms suggest that they will lead officers to refrain from enforcing some laws for fear of litigation, which in turn will have an adverse impact on public safety, but there is no evidence confirming this hypothesis. Alternatively, if reforms increase public trust and cooperation with law enforcement, public safety might be enhanced, though there is also a lack of data to demonstrate this.
