What is Qualified Immunity?

You have likely heard the phrase qualified immunity, but what exactly is it? Qualified immunity is a court-created doctrine that shields public officials sued for violating the United States Constitution from damages for money unless their conduct violated clearly established law. What does that mean? Let’s dive into the doctrine’s history, interpretation, and application.

Qualified immunity is a court-created doctrine.

Broadly speaking, there are two potential sources of law in the United States: court-created law and statutory law. Statutes are passed by federal, state, and local governments. These include all laws passed by legislatures. For example, Congress passed 42 U.S.C § 1983 in 1871. Section 1983 provides an individual the right to sue most public officials and others acting under color of state law for civil rights violations. Court-created law, on the other hand, comes from judicial decisions instead of from statutes. Qualified immunity is a court-created doctrine.

In 1967, the Supreme Court decided Pierson v. Ray. There, the Supreme Court created qualified immunity. According to the Supreme Court, the purpose of qualified immunity is to strike a balance between the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from distraction and liability when they perform their duties reasonably. While this may sound sensible in the abstract, the unfortunate reality is that qualified immunity has prevented many victims of civil rights violations from obtaining any remedy in court.

Court-created doctrines like qualified immunity can be changed or even abolished at any time. The Supreme Court has the power to overturn Pierson and other qualified immunity cases it has decided. Congress could also pass legislation to abolish or modify the qualified immunity doctrine. In fact, Congress has recently considered bills that would substantially limit the availability of the qualified immunity defense. So far, though, political gridlock has defeated proposed qualified immunity legislation at the federal level. Some states, however, have taken matters into their own hands, passing bills that allow individuals to bring state constitutional claims against police officers and banning qualified immunity as a defense to such claims. Colorado is one such example.

Qualified immunity shields public officials sued in their individual capacities only. It cannot shield public entities from suits.

When suing a public official under Section 1983, like a police officer, courts view the public official as having two, coexisting statuses: their official capacity and their individual capacity. When Officer John Smith is working in his community, he is both Officer John Smith, the police officer of the government, and simply John Smith, the citizen. To sue Mr. Smith in his official capacity is to, in essence, sue the municipal entity that employs him. To sue Mr. Smith in his individual capacity is to sue John Smith himself. Qualified immunity is available in the second of these two categories only; it potentially protects Mr. Smith from being sued individually. Municipal entities like the City and County of Denver, on the other hand, cannot assert a qualified immunity defense and can remain subject to liability if a constitutional violation occurred, even if the law was not clearly established at the time.

Qualified immunity shields public officials from monetary damages.

In 1871, President Ulysses S. Grant signed the Ku Klux Klan Act into law. This legislation was designed to combat the deprivation of rights of Black Americans during the Reconstruction era. One of the provisions of this act still exists today in Title 42 of the United States Code, Section 1983. 42 U.S. Code § 1983 is a critical mechanism to enforce civil rights. It makes relief in the form of monetary damages available to people whose constitutional rights have been violated by a person acting under state authority. This was crucial in the Reconstruction era to hold state officials, especially in the South, liable for lynchings and other evils committed against newly freed Black Americans. Members of Congress made it clear that the Act was intended to address not only racial violence, but to implement the whole of the Constitution. According to Representative John A. Bingham, its purpose was “the enforcement . . .  of the Constitution on behalf of every individual citizen of the Republic . . . to the extent of the rights guarantied to him by the Constitution.” Since Section 1983 was enacted, it has been used to hold government officials accountable for constitutional rights violations such as those surrounding the right to be free from unreasonable searches and seizures, cruel and unusual punishment, and race and gender discrimination.

Section 1983 remains a crucial measure for discouraging and punishing illegal behavior by government officials, and for providing a remedy to victims of civil rights violations. In practice, however, such victims sometimes encounter insurmountable obstacles in pursuing justice because of qualified immunity. Even when courts recognize that an individual’s rights have been violated, for instance, that individual may nevertheless be denied compensation if the defendant successfully invokes a qualified immunity defense.

In Allah v. Milling, a man spent over six months in solitary confinement while in pre-trial detention. He was alone for 23 hours each day despite having never even been convicted of a crime in connection with his incarceration. Also, prison officials had conducted no individualized assessment of the risk he posed to security before placing him in solitary confinement. The Second Circuit Court of Appeals agreed with the plaintiff that his rights had been violated, but nonetheless concluded that prison officials could not be held responsible for his cruel and arbitrary treatment because they were entitled to qualified immunity. As a result, he was never compensated for the egregious violation of his rights.

Qualified immunity as applied by courts.

When a public official asserts qualified immunity in a lawsuit, the plaintiff must show both that the official’s actions violated a constitutional or statutory right and that the violated right was clearly established at the time of the official’s unlawful conduct. In Mullenix v. Luna, the Supreme Court defined a clearly established right as “one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Quoting its earlier decision in Ashcroft v. al-Kidd, the Court held that this notice standard does not mean there must have been existing caselaw with the identical facts as those which occurred in the case for which the government official is pleading qualified immunity, but instead means there must have been some caselaw or statute that would a “reasonable official” in on notice that their conduct was unconstitutional.

Novel fact patterns can violate clearly established law. In Hope v. Pelzer, for instance, prison guards tied a shirtless inmate to a hitching post for seven hours, denying him water and bathroom breaks while his skin was burned by the sun. Because no guard had ever done something similar, no court had ever held this specific action to be illegal. Even so, the Supreme Court held in Pelzer that the “obvious cruelty” of guards’ actions and their treatment of the inmate in a way that was “antithetical to human dignity” provided sufficient notice that the conduct was unconstitutional. In other words, a reasonable guard should have known that hitching an inmate to a post for seven hours in the hot sun and denying him water and restroom access was cruel and unusual punishment, regardless of whether a court case told them so.

Additionally, a changing legal landscape can change a court’s qualified immunity analysis. In Irizarry v. Yehia, the Tenth Circuit determined that an officer who harassed journalists filming police was not entitled to qualified immunity because there is a First Amendment right to film police performing their public duties, and that right was clearly established at the time of the incident. A few years earlier, the court had granted qualified immunity to a different officer based on a similar issue. Why were these officers treated differently by the court? Because, the court explained, what an officer should know is a “clearly established right” today is different from what we expected an officer to know five or ten years ago. As culture, communities, and law enforcement evolve, so does our collective understanding of our rights and our corresponding expectations of officers.

With all of that said, qualified immunity has been applied to pernicious effect many times. Because what is “clearly established” can be such a vague and subjective concept, government-friendly judges can relatively easily misapply the doctrine to deny deserving victims a remedy in court. Moreover, under Supreme Court precedent established in Pearson v. Callahan, courts are permitted to grant a public official qualified immunity because the law purportedly was not clearly established, without even addressing whether a constitutional violation occurred. This means that judges can, and too frequently do, dismiss cases involving issues of great public concern without ever even saying what the law is.

Recently, a growing number of scholars, judges, and elected officials have advocated for the abolition of qualified immunity. In a forthcoming blog post, we will describe efforts to put an end to the court-created doctrine.

This blog exists for educational and informational purposes only. It should not be seen as legal advice on any subject matter and does not form an attorney-client relationship. Readers should consult with their own counsel regarding any legal questions they have related to a specific circumstance. Additionally, any information contained on the blog is true and accurate to the best of our knowledge, but there may be omissions, errors, or mistakes. Particularly because the law regarding an issue can change over time, this blog should not be used as a substitute for the reader’s own legal research.