Qualified immunity was described by the Supreme Court in Pearson v. Callahan to be a balance between “two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Under the doctrine of Qualified Immunity, public officials, such as law enforcement officers, may get protection from civil lawsuits even if they cause the death or injury of a citizen or violate citizen’s civil rights. Qualified immunity is an exception to the Civil Rights Act of 1871. The Civil Rights Act gave all Americans the right to bring a civil lawsuit against any public official who violated their legal rights. However, under the Qualified Immunity exception, police officers and some other public officials are not held to the same standard as others.

Controversy Surrounding Qualified Immunity

The question of whether police officers should have qualified immunity from lawsuits is a controversial one. In fact, in a Supreme Court case upholding the law, the Court stated that the purpose of Civil Rights Act was to “give a remedy to parties deprived of constitutional rights, privileges, and immunities by an official’s abuse of his position.” However, history has largely eviscerated this protection of civil rights through the Supreme Court’s creation of a doctrine called Qualified Immunity. In 1967 the Supreme Court issued a ruling that created an immunity for those officials who acted in “good faith” at the time of the violation and did so believing that their conduct was within the bounds of the law. However, in a very short amount of time the qualified immunity exception has been expanded dramatically. Under the current law an official may be held liable for their wrongdoing only in the event that they violate rights that have been “clearly established” under current law. The court has held that the victim of the violation must be able to point to a precedent that involves the same “specific context” and “particular conduct” as that in question in their own case. If the victim is unable to find such an exact precedent, a public official who knowingly violates someone’s constitutional rights will escape liability under the doctrine.

Those who oppose the Qualified Immunity exception argues that it affects every American. They argue that this immunity diminishes safety and justice for each of us but particularly for those who are common targets of police misconduct. The victims of police brutality, victims of unlawful searches and arrests are stripped of their ability to hold police officers accountable for their actions and thus there is little incentive for these violative practices to stop. Even more troublesome is that there is no opportunity for constitutional law on this issue to move forward. The very fact that a victim must point to a clearly established violation means that many cases involving constitutional violations are dismissed before being heard and therefore a precedent is never set for the next victim.

Tragic Examples

Qualified immunity is precisely the doctrine that allowed police to use excessive force during a routine traffic stop of a heavily pregnant woman in the Seattle case of Malaika Brooks. Ms. Brooks was a woman who simply refused to sign a traffic ticket believing doing so was an admission of guilt. In this case, two officers tased the woman three times after she informed officers that she was pregnant and while her other child was present in the car. Not only did the officers tase her but they proceeded to drag her into the street, face down and handcuff her. When Ms. Brooks sued the police officers in civil court, the federal judges agreed that her constitutional rights were violated when severe force was used against her without any threat to officer safety. However, they dismissed the case under the grounds that the officers were protected by the qualified immunity doctrine. Qualified immunity allowed officers to escape civil liability in the case of Gabriel Winter, a mentally disabled black man who was killed by police officers when he was shot at 17 times, chased down and tased even though he posed no threat to the officers. In each of these cases judges recognized that the victim’s constitutional rights were violated yet they felt their hands were tied by the doctrine of qualified immunity.

The arguments in favor of the creation and maintenance of qualified immunity include the claim that qualified immunity protects police officers from financial ruin from civil lawsuits. However, this assertion fails to recognize that the vast majority of civil claims are defended and paid for by the insurance company for the officer’s municipality or union. The additional argument that qualified immunity lifted the burden of litigation from the shoulders of law enforcement officials who shouldn’t be distracted from their work by time consuming and stressful discovery procedures is also based on a fallacy because less than 1% of qualified immunity suits are dismissed prior to the discovery phase of litigation. Finally, supporters operate under the belief that if police officers did not have qualified immunity, the threat of civil suit would deter people from entering the profession and make those who choose to become police officers hesitate to take action. However, it has been shown through numerous studies that police officers do not harbor worries about lawsuits when doing their job.

The Future of Qualified Immunity

The Qualified Immunity Doctrine has both philosophical and practical implications for residents of Missouri and Kansas, in addition to all Americans. While its basis in law is derived from the US Supreme Court, the current Court’s support for the doctrine is beginning to crack on both sides of the political divide. Both Justice Thomas and Justice Sotomayor have expressed their misgivings about its continued use. In recent years, organizations from across the political spectrum have gathered to support Petitions in the Supreme Court that are arguing for qualified immunity to be overruled. Holding police officers accountable for constitutional violations is more difficult than ever and many officers are escaping liability in egregious situations simply because, as of yet, there was no clearly established standard.