Lesson No. 1 is probably that nothing will happen at the federal level. Congress just seems to be in a complete stalemate on this. The Supreme Court has just recently, in two cases, made it clear that it's not at all interested in scaling back, or modifying, or recalibrating, or certainly not eliminating the doctrine. So people have been turning to the states.
And when you get to the state level, I think one of the big obstacles to reform is police unions. The minute you start talking about eliminating qualified immunity, you run into a brick wall. Colorado, yes, has done it. But it's going to be very tough in most states to completely eliminate qualified immunity. I think that there's probably some reasonable middle ground that could be reached.
What lessons can we learn from the various efforts—some successful, most not—to limit or ban qualified immunity in the past year?
POLICING
After the horrifying May 2020 murder of George Floyd at the hands of Minneapolis police officer Derek Chauvin, efforts to reform or rethink policing gained new urgency and momentum. And a principal target of reformers has been qualified immunity—the legal defense that shields police officers from being held personally liable for monetary damages as long as they haven’t violated “clearly established” law. In practice, that means even flagrant constitutional violations can be protected by qualified immunity, unless the plaintiff produces a prior court ruling with nearly identical details.
Police officers involved in on-duty killings rarely face criminal prosecution, so critics argue that the qualified immunity defense allows them to escape accountability; defenders of the doctrine say it frees police officers to use their best judgment in fast-evolving, life-or-death situations.
Efforts to rein in qualified immunity have yielded mixed results. The George Floyd Justice in Policing Act introduced by House Democrats in February 2021 would have limited qualified immunity at the federal level—which Congressional Republicans found unacceptable. In October, the Supreme Court sided with police in two decisions related to qualified immunity. But in June 2020, Colorado passed a piece of police reform legislation that ended qualified immunity at the state level. New York City became the first municipality to do so in 2021. Still, dozens of other state-level bans have languished or failed.
We asked Suffolk Law Professor Emerita Karen Blum JD'74 and retired police captain Jack Ryan JD'94 what lessons those legislative efforts hold, and where the qualified immunity debate will go from here.
Interview by Jon Gorey
Professor Emerita Karen Blum JD'74
Q&A with Karen Blum JD'74
The biggest complaint about the federal doctrine of qualified immunity is the Supreme Court’s repeated insistence, especially in Fourth Amendment cases that involve use of force, on plaintiffs producing a previous case that looks just about exactly like the one before the court in order to defeat qualified immunity. This makes it near impossible, in a lot of cases, for plaintiffs to prevail. Even if your constitutional rights have been violated, the officer can prevail on qualified immunity, unless the plaintiff produces a case that's very, very close to the one before the court, so that the plaintiff can say, “See, the officer had fair warning, because this exact thing happened in this case beforehand.” And that's just a really, really high hurdle for plaintiffs.
One of the other major problems with the qualified immunity doctrine on the federal level is that the courts don't have to address the merits of the police conduct. They can just jump to what is referred to as the “second prong” and say, “We're not going to tell you whether this conduct violates the Constitution or not. We don't have to decide that. All we have to decide is that there is no clearly established law that would give an officer fair warning that this conduct, under these circumstances, violated the Constitution.”
Where do you see that middle ground between law enforcement and civil rights groups when it comes to qualified immunity?
I'm sure that officers and a lot of people in law enforcement have this perception that if you do away with qualified immunity, they are going to be sued more frequently, they are going to be held liable more frequently, and they are going to have their houses and bank accounts subject to attachment pursuant to judgments rendered in these kinds of cases. And none of that is really true.
Yes, it is likely that more lawsuits will be filed against officers. Frivolous suits are handled easily at the motion-to-dismiss stage. But the inevitability of qualified immunity being asserted has discouraged many lawyers from filing claims, even when they believe their client’s constitutional rights have been violated. Even with more suits filed, it’s important to remember that officers are already protected from liability by the substantive standard set out by the Supreme Court in Fourth Amendment cases involving excessive force claims.
That standard says an officer whose conduct is found to be objectively reasonable under the totality of the circumstances will not be held liable. If the clearly established prong went away—meaning that plaintiffs didn‘t have to point to a similar case—an officer would still prevail if his conduct was deemed to be reasonable, taking into account, among other factors, the severity of the crime and the threat presented by the suspect to the officer or others. A great deal of deference is given to officers, especially when they are engaged in situations that are tense and rapidly evolving. If their behavior was reasonable, they still win the case.
Furthermore, even when officers are found liable, Professor Joanna Schwartz (UCLA) has written extensively and done empirical studies showing that officers are indemnified for any judgments rendered against them in these kinds of suits 99.9% of the time. So there are a miniscule number of instances in which officers are actually paying out of their own pocket for any part of these judgments that are rendered in civil rights cases.
There's a certain amount of education that has to be done to make people understand that doing away with qualified immunity, or limiting it in some fashion, is not going to result in bankrupting police officers. What will happen is what should happen: citizens whose constitutional rights have been violated will have a judgment holding that conduct to be unlawful and will be compensated for their injuries.
Opponents to reform have argued that doing away with qualified immunity will result in more lawsuits and more judgments against police officers, cause officers to have to pay those judgments out of their own pockets, and potentially create a disincentive to becoming an officer in the first place.
The whole idea of eliminating qualified immunity, at least as purported by many of the folks that have been pushing for it, is that individual officers will not change their behavior unless they are held personally accountable for their actions. But the elimination of qualified immunity is really not going to change anything with respect to the individual officers, because individual officers don't have any money. If they get sued for $10 million, and they lose, they don't have the $10 million, they don't pay the $10 million—ultimately, the taxpayers pay the bill.
Some of these state legislative pieces look good on paper, but what's not being talked about is that they only apply in a state action. In other words, if a federal action is brought, and if there's a constitutional claim in the case, then chances are the case is going to end up in federal court unless somebody makes a mistake. Now, once it's in federal court, then clearly the federal standards on qualified immunity apply, and not some state law that's been passed.
What lessons can we learn from the various efforts—some successful, most not—to ban qualified immunity in the past year?
Q&A with Jack Ryan JD’94
One of the problems with qualified immunity from somebody like me, who does a lot of training for law enforcement, is that the courts have the ability to skip the merits question and go directly to the qualified immunity question. And that means in these cases where we want a clear answer—so we can train officers properly as to what they can do and what they can't do—we don't know whether the action was constitutional or not, just that the law wasn't “clearly established.” So how do we tell officers either yes, you can do that, because the court has declared it constitutional, or in the alternative, you can't do that, because the court has declared it unconstitutional? Skipping the first question doesn't really help law enforcement change or move forward with respect to any particular conduct.
One of the things I would love to see is those merits questions answered, because that makes it a lot easier to develop policy, develop training for law enforcement, and give officers clear answers as to what the parameters are on their conduct in all kinds of situations, whether it be use of force, search and seizure, or questioning. It would make it a lot easier to give officers clear guidance. And, by the way, it's likely to lead to more professional policing, because most officers want to come to work and do things correctly. And if we give them clear parameters on what they can do and what they can't do, they're going to follow them.
Images from top: Getty Images, Michael J. Clarke, courtesy of Jack Ryan
Where do you see the middle ground between law enforcement and civil rights groups when it comes to qualified immunity?
Return to Features
Return to Table of Contents
Jack Ryan JD'94
Ryan served on the Providence, Rhode Island, police force for 20 years, and is now the co-director of the Legal and Liability Risk Management Institute. He has trained police officers nationally from 2001 to the present and locally since the early '90s.
Blum, an expert in qualified immunity, is co-author of Police Misconduct: Law and Litigation. She has taught courses at Suffolk in police misconduct litigation, federal courts, and civil procedure.