Abolish Qualified and Absolute Immunity

Police approached West because they believed her ex-boyfriend, who had an outstanding felony arrest warrant, was inside her home. (He wasn’t.) West gave the police permission to enter her home — an important fact because it meant that police could enter without a warrant — and lent an officer her key.

But West did not expect the police to smash her windows. Or to fire so much tear gas into the home that it saturated her possessions and made the house unlivable for two months. Or to fire tear gas canisters at such velocity that her walls and ceilings suffered extensive damage. The city gave her only $900 to cover her losses, plus a hotel room for three weeks.

And yet, when West sued, a federal appeals court determined that her lawsuit was dead on arrival. The culprit was qualified immunity, a doctrine that gives government officials broad — if not entirely limitless — protection against federal lawsuits.

The unusual lawsuit immunity enjoyed by police is under increased scrutiny in the wake of nationwide protests inspired by the killing of George Floyd by a Minneapolis police officer. One lawmaker, Rep. Justin Amash (I-MI), has even proposed legislation that would abolish qualified immunity altogether.

In theory, qualified immunity shields government officials from lawsuits involving novel legal claims. As the Supreme Court held in Harlow v. Fitzgerald (1982), “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

In practice, however, qualified immunity can protect truly egregious conduct by police. As the Supreme Court put it in Malley v. Briggs (1986), qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”

In West’s lawsuit, West v. City of Caldwell, two members of a three-judge panel determined that the officers who trashed West’s home are entitled to qualified immunity — because there was no previous case specifically holding that when a homeowner gives police consent to enter their house, that consent does not entitle police to smash windows or to fire chemical weapons into the home.

To prevail in her case, the Court reasoned, West would have to produce a binding precedent establishing “a constitutional rule specific enough to alert these deputies in this case that their particular conduct was unlawful” (emphasis in original).

The premise of the Supreme Court’s qualified immunity cases is that government officials will do their jobs less efficiently and with less enthusiasm if the threat of a lawsuit looms over them.

As the Court explained in Harlow, qualified immunity does not simply protect public employees from the “expenses of litigation.” It ensures that the stresses of litigation won’t divert “official energy from pressing public issues,” and that concerns about being sued won’t deter “able citizens from acceptance of public office.” Finally, the Supreme Court also warned about “the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’”

These are not frivolous concerns. Qualified immunity applies broadly to government officials, not simply to police officers. So, in a world without qualified immunity, religious conservatives could harass civil rights officials with lawsuits to discourage those officials from enforcing laws prohibiting anti-LGBTQ discrimination. Koch Industries could bombard EPA officials with lawsuits discouraging them from enforcing environmental laws.

And as the Supreme Court lurches right, government employees could not be certain that their actions would be upheld by the justices — even if existing precedents clearly establish that those actions are lawful. Public employees could face financial ruin every time the Supreme Court overruled a precedent.

Yet whatever the wisdom of providing some lawsuit immunity to most public employees, most government officials do not have guns. Teachers and firefighters — or, for that matter, civil rights commissioners and EPA officials — typically do not smash the windows of an innocent woman’s home and saturate the interior with tear gas.

It’s one thing to say that public employees should generally be able to do their jobs without having to fear an onslaught of lawsuits. It’s another thing entirely to give sweeping legal immunity to people who are authorized by the state to inflict violence on citizens, and potentially even to take another person’s life.

The primary purpose of qualified immunity is to ensure that public officials do not face expensive litigation when the legality of their actions is uncertain. Qualified immunity is not a complete shield against liability. It only protects government employees whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

For several years, this meant that the first government official to violate the law in a new or innovative way typically got off scot-free, but subsequent officials could then be placed on notice that they better not engage in similar behavior. In Saucier v. Katz (2001), the Supreme Court held that judges hearing qualified immunity cases must conduct a two-step inquiry.

Courts must first ask whether “the facts alleged show the officer’s conduct violated a constitutional right.” Then, after determining whether the defendant violated the law, the court would determine whether that defendant was nonetheless entitled to qualified immunity because the illegality of their actions was not “clearly established.”

Thus, as time passed, courts would declare more and more conduct illegal, and government officials would then be on notice that they could not emulate that conduct.

But the Court largely abandoned this two-step framework in Pearson v. Callahan (2009), which held that “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus, judges now have the power to dispose of cases on qualified immunity grounds without ever ruling on whether anyone’s rights were violated. As a recent Reuters investigation notes, moreover, judges are increasingly likely to declare government officials immune from a suit without resolving whether those officials acted illegally.

Government officials also enjoy extraordinary procedural protections in qualified immunity cases. As attorney Raffi Melkonian notes on Twitter, in qualified immunity cases, “the defendant gets an automatic, immediate, appeal to the Court of Appeals” if they are denied qualified immunity by a federal trial court. Moreover, civil procedure rules often allow a defendant to raise qualified immunity at two different phases of a trial court proceeding — and if the court denies qualified immunity at each phase, both denials can be immediately appealed.

According to Melkonian, that means that, even in the best-case scenario, if you are a plaintiff suing a government official “you have 2-3 years of appellate procedure in every single case even before you win the case.” That’s a long time to wait for a judgment, and it discourages many lawyers from taking these cases — because they are unlikely to win, even less likely to win quickly, and will have to invest considerable resources into these lawsuits before they have any real shot of getting paid.

And then let’s say that a victim of police violence does ultimately prevail in a suit against a police officer. Even then, the likelihood that the officer will be required to compensate the victim is negligible. Many jurisdictions have indemnity laws, providing that the government will pay for any damages awarded against a police officer. These laws are so common that a 2014 study by UCLA law professor Joanna Schwartz found that “during the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.”

Conservatives have dominated the Supreme Court since President Richard Nixon appointed four justices in his first term. But the nature of judicial conservatism has changed dramatically over the past half-decade.

For much of this period, judicial conservatism was typically associated with deference to governmental power — and especially with deference to law enforcement. As Nixon wrote in 1967, “the first responsibility of government and a primary responsibility of the judicial system is to guarantee to each citizen his primary civil right — the right to be protected from domestic violence.”

In recent years, however, judicial conservatism has taken on a more libertarian tone. That doesn’t mean that the Roberts Court is a bastion of civil liberties for criminal defendants, but it does mean that several members of the Court’s Republican majority are protective of some of those liberties.

Chief Justice John Roberts, for example, often votes with his liberal colleagues in cases where police use new technology to conduct intrusive searches. Trump appointee Neil Gorsuch wrote the lead opinion in a case holding that criminal defendants may only be convicted by a unanimous jury. And Trump’s other appointee, Justice Brett Kavanaugh, is a longstanding opponent of racial jury discrimination — he even authored a law review note on that topic while he was still a student.

Meanwhile, Justice Clarence Thomas, the Court’s most conservative member, wrote in a 2017 opinion that his Court should “reconsider our qualified immunity jurisprudence.”

Thomas’s partial concurring opinion in Ziglar v. Abbasi (2017) is brief, and it is vague. The thrust of Thomas’s argument is that, when determining whether a government official should be immune from a particular suit, courts should rely on “common law” principles that existed more than a century ago, rather than the practical concerns raised in Harlow.

Does that mean that Thomas would join a five-justice majority in limiting qualified immunity? The answer to that question is unclear, but many litigants appear ready to test whether a majority of the Court is willing to rethink qualified immunity.

As many as a dozen cases are currently pending before the Supreme Court asking it to rein in the broad immunity currently afforded to government officials. One of those cases is Shaniz West’s case, which is now called West v. Winfield. The justices, moreover, have discussed whether to hear West’s case at six separate conferences — a sign that at least some members of the Court have taken an interest in the case.

Meanwhile, Rep. Amash, a former Republican with right-libertarian views, is seeking co-sponsors for legislation titled the Ending Qualified Immunity Act, which he says would “eliminate qualified immunity and restore Americans’ ability to obtain relief when police officers violate their constitutionally secured rights.”

That would be a bold step, which would likely go far beyond any limits that the Supreme Court would place on qualified immunity. And it not at all clear whether a majority of the House and the Senate would ever be willing to go so far.

Nevertheless, even if Congress does not ultimately decide to eliminate qualified immunity altogether, qualified immunity is a judicially created doctrine that isn’t grounded in the Constitution — which means that Congress has the power to alter that doctrine however it chooses. Congress could, for example, decide that law enforcement officers — or any other government official who carries a deadly weapon — should not enjoy the same broad immunity afforded to teachers, firefighters, or EPA officials.

It could ensure that, at the very least, police who kill, or wreck lives, or destroy people’s homes are not immune from suit.