The United States has a policing problem. The protests over the death of George Floyd are proof of that. Perhaps qualified immunity, the judicial doctrine that usually prevents police officers acting in the line of duty from being held accountable in court, contributes to the problem. 

Qualified immunity is a legal doctrine created by the Supreme Court. It provides protection to government officials who have violated a citizen’s constitutional rights unless a “clearly established” right has been violated. To show that a right was “clearly established,” the victim must be able to point to a previously decided case that involves the same “specific context” and “particular conduct” as their current case. If he fails to do so, the offending officer is granted qualified immunity. In George Floyd’s case, his family would have to point to a case where a cop suffocated someone with his knee in the street and went to trial for it. If no case like that exists, then Floyd’s family cannot recover damages.  

In 1871 Congress enacted Section 1983 of the US Code, giving ordinary citizens the right to sue government agents. In the 1967 case, Pierson v. Ray, the Supreme Court created qualified immunity as a defense for public officials who act in good faith and believe that their actions were lawful. The Court expanded the qualified immunity defense to apply to all Section 1983 cases in 1971 and then again in 1973, dropping the good faith requirement and replacing it with the violation of a clearly established right requirement. The Supreme Court went even further in a later case, stating that qualified immunity protected, “all but the plainly incompetent or those who knowingly violate the law.” While the axiom “ignorance of the law is no excuse” applies to the average citizen, it does not apply to those who enforce the law.

The Supreme Court has fundamentally undermined the original intent of Congress when they enacted Section 1983 in an act of judicial policymaking. Qualified immunity allows judges to short-circuit the constitution by ending a trial before the plaintiff even gets to ask for documentation and sworn statements from the police. Instead, the case is ended before it begins, unless a sufficiently similar case has been ruled on previously.  

This leads to outrageous results. In 2013, Fresno police served a search warrant where they reported that they seized $50,000 from two men, Micah Jessop and Brittan Ashjian, suspected of illegal gambling. Despite reporting they confiscated $50,000, the two men reported that officers stole over $275,000 in cash and rare coins. Jessop and Ashjian elected to sue the officers involved over the stolen coins. It sounds like a straightforward case; after all, the 4th amendment prohibits unreasonable searches and seizures. This was not the view of the 9th Circuit Court of Appeals. The 9th Circuit ruled that the officers were entitled to qualified immunity since it would not be “clear to a reasonable officer” that stealing $225,000 violated Jessop and Ashjian’s constitutional rights.

Defenders of qualified immunity say that it protects police officers from being bankrupted by civil lawsuits. However, this is not the case. A paper in the New York University Law Review found that officers rarely contribute to settlements or judgments against them, and when they do, they contribute a small amount, with a median contribution of $2,250. Most of the costs are covered by insurance, the municipality, or the union.  

The Supreme Court has also justified qualified immunity on the grounds that civil liability would deter people from becoming cops and “dampen the ardor” of those who do become cops in carrying out their duties. Studies have found that many officers believe they should be subject to civil liability and that lawsuits deter unlawful behavior. This suggests that officers believe lawsuits deter their colleagues from misbehavior when carrying out their duties. 

An issue with subjecting officers to civil liability suits is that often times, the damages are paid by the municipality, and therefore the taxpayer. The solution would be to require police officers to carry personal liability insurance, like many other professions do. Bad acting officers will get priced out of insurance or become completely uninsurable, and therefore unemployable. This also solves the problem of officers being dismissed from a job in one city going one town over and getting a law enforcement job there. 

This is not to say police should have zero protections while performing their duties, but the protection should be narrow. Some version of qualified immunity does provide an important protection not just for police, but for society. We want police to be able to aggressively protect the public from true threats. Police are the physical manifestation of the state’s monopoly on police power. Their job involves great danger and split second decisions. It must carry a correspondingly great responsibility. But unlike, say, doctors, police don’t make many happy customers – everyone they interact with has at least be given a warning, often a fine, and sometimes an incredibly unflattering portrait. If left unchecked, responding to nuisance lawsuits could fill the entirety of every officer’s workweek. 

Perhaps the choice then is not between having the current qualified immunity and none at all. Perhaps there is a middle ground. Would a reasonable person, put in the same circumstances (including time pressure and safety concerns) have known the conduct was wrong at the time they were doing it? Certainly a reasonable person would know that stealing $250,000 or kneeling on a handcuffed suspect’s neck was wrong. In those cases, the plaintiffs should be free to proceed. In the case of a belligerent drunk who sustained a sprained wrist resisting handcuffs, the judge would still be free to dismiss the case before anyone’s time is wasted.

America’s policing problem will not be cured by fixing qualified immunity. There will still be cops who wish their life was a Quinten Tarantino movie and act as if it were. But it will allow the victims of police abuse and their families to get compensation. Requiring cops to be civilly liable for their actions will also force many of the worst actors out of the profession. This is an opportunity for Congress to take back its policymaking role from the Supreme Court.

Spencer Cadavero is a Research Associate at 1889 institute and can be reached at [email protected].
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.