Debate Desk
Is Qualified Immunity a License for Police Abuse of Citizens?
Qualified immunity shields officers only when no clearly established right was violated, but its critics have a point and conservatives disagree on reform.
The claim
Critics say that qualified immunity lets officers who violate people's rights escape lawsuits because no earlier case with nearly identical facts had been decided. A doctrine invented by judges, they say, protects wrongdoers and leaves victims without a remedy.
The answer in three points
- The doctrine does not bar suits against officers who violate clearly established rights, and it does not protect those who act with plain wrongdoing. It protects officials who make reasonable mistakes in unclear situations. Police have to make decisions in seconds, and a rule that holds them liable for guessing wrong about unsettled law would deter good people from the job.
- Critics have a fair point about how the doctrine works in practice. Courts have sometimes required a case with almost identical facts before finding that a right was clearly established, and that standard can be so strict that serious misconduct goes unremedied. Reforming the standard is a reasonable goal.
- Conservatives disagree about the remedy. Some would end the doctrine, others would narrow it, and others would shift liability from officers to the departments that employ them, which protects both victims and individual officers. Whatever the path, a citizen whose rights are violated should have a way to be heard.
Reform that keeps good officers on the job while giving victims a remedy is a goal both sides can share.
The numbers
- The statute under which most suits are brought, 42 U.S.C. 1983, descends from the Civil Rights Act of 1871, also called the Ku Klux Klan Act, according to the Department of Justice.
- The Supreme Court adopted the modern qualified immunity standard in Harlow v. Fitzgerald (1982).
- The Court's decision in Graham v. Connor (1989) held that excessive force claims are judged by what a reasonable officer on the scene would have done, not with hindsight.
What they will say next
"Officers are rarely punished." Discipline and prosecutions should follow when officers break the law, and departments should be held to account for their culture. The doctrine concerns civil suits, and it does not prevent criminal charges.
"Taxpayers cover settlements anyway." In most cases, governments indemnify officers, and the question becomes who should answer. Municipal liability is one fix that preserves the incentive for departments to train and supervise.
"Immunity did not exist in 1871." Historians and judges differ on that point, and the argument has persuaded some justices. It is a serious one.
"Without it, officers will not do the job." Recruitment is already hard. Clear rules and indemnification can protect good officers while giving victims a path to redress.
A system that cannot hold power to account loses the trust it depends on.
"Other professionals do not enjoy such protection." Many government officials do, and some professions are protected by insurance or indemnification. Considering how to protect good officers while giving victims a remedy is the practical task.