Qualified Immunity
A legal doctrine invented by the Supreme Court — not Congress — that makes it nearly impossible to sue police officers who violate constitutional rights.
The short version
- Qualified immunity is a judicial doctrine protecting government officials — including police — from civil rights lawsuits unless their conduct violated 'clearly established' law that any reasonable officer would have known.
- The doctrine was not passed by Congress and has no basis in the text of the civil rights statute it purports to interpret; it was invented by the Supreme Court in a series of decisions and has been strengthened repeatedly over decades.
- In practice, courts dismiss civil rights cases against police not by finding officers acted reasonably, but by finding no prior court decision involved the exact same facts — a standard that immunizes novel violations by definition.
- In the year following George Floyd's murder, police reform bills that would have eliminated or restricted qualified immunity passed the House twice and failed in the Senate, where the legislative filibuster required 60 votes.
What it is
Qualified immunity is a doctrine in U.S. civil rights law that protects government officials — primarily, in contemporary practice, police officers — from being sued for violating constitutional rights unless the right violated was 'clearly established' at the time of the violation in a way that every reasonable officer would have known. The doctrine operates as an affirmative defense: an officer who uses excessive force, conducts an illegal search, or otherwise violates constitutional rights can have the lawsuit dismissed without any determination that their conduct was constitutional. The question is not whether they did something wrong; it is whether they knew — through prior court precedent involving nearly identical facts — that their specific conduct was unconstitutional.
Qualified immunity's legal origin is not where most people expect it. The doctrine purports to interpret 42 U.S.C. § 1983, the civil rights statute passed by Congress in 1871 during Reconstruction, which allows citizens to sue state officials who violate their constitutional rights 'under color of law.' The text of § 1983 provides no immunity defense. The statute's legislative history, including its original Senate floor debate, shows Congress explicitly rejected immunity provisions that were proposed. The Supreme Court began reading a 'good faith' immunity into § 1983 in Pierson v. Ray (1967), and transformed it into the current 'clearly established law' standard in Harlow v. Fitzgerald (1982). The current doctrine was thus created by the Court without textual or historical basis in the statute it interprets — a fact that legal scholars across the ideological spectrum, including prominent conservatives like Justice Clarence Thomas, have acknowledged.
The practical operation of the 'clearly established' standard has produced an increasingly difficult catch-22. To survive qualified immunity, a plaintiff must identify a prior court decision with facts close enough to their situation that a court deems the law clearly established. But prior decisions are rare precisely because qualified immunity protects officers before cases reach a merits determination. Cases are dismissed on qualified immunity grounds without ever resolving whether the conduct was unconstitutional — meaning no precedent is created, which means the next case with similar facts is also dismissed for lack of clearly established precedent. Critics, including Sixth Circuit Judge Don Willett (a George W. Bush appointee), have characterized this as a 'Catch-22' in which 'official misconduct rarely gets constitutional consideration': victims can't establish a clearly established violation because cases get dismissed, and cases get dismissed because victims can't establish a clearly established violation.
The 'clearly established' standard has been applied in ways that have generated substantial public documentation of its absurdity. Courts have dismissed cases because a prior case involved a dog rather than a person being attacked in a similar manner; because a prior case involved a slightly different weapon; because the constitutional violation occurred in a hallway rather than a cell. The Cato Institute — a libertarian think tank not ordinarily associated with police accountability arguments — published a comprehensive review of qualified immunity case law in 2020 finding that courts routinely grant immunity in cases of what appear to be severe constitutional violations, and that the 'clearly established' requirement has become virtually impossible to satisfy in practice for all but the most obvious abuses.
Why it matters
Qualified immunity effectively eliminates civil accountability for most police constitutional violations. When an officer violates someone's Fourth Amendment right against unreasonable search and seizure, their Fifth Amendment right against self-incrimination, or their Fourteenth Amendment right to equal protection, § 1983 was designed to allow the victim to seek damages in federal court. In practice, qualified immunity dismisses these cases before they reach a jury in the vast majority of cases where officers raise the defense. Criminal prosecution is even less available: the standard for criminal civil rights charges under federal law requires proving that an officer acted 'willfully' to deprive someone of a constitutional right, an extraordinarily high bar that results in federal prosecution in only a small fraction of cases involving serious police misconduct. The practical result is that a police officer can commit what a court privately considers an unconstitutional act and face neither civil nor criminal accountability.
The doctrine's effects on police behavior and department incentives are difficult to measure directly but theoretically significant. Civil liability is one of the mechanisms through which organizations are incentivized to correct the behavior of employees who cause harm. Insurance costs, damage awards, and reputational consequences create pressure on departments to discipline or remove officers who regularly generate complaints and lawsuits. When qualified immunity removes the civil liability mechanism, it reduces the financial pressure on departments to act on conduct that generates constitutional violations but is otherwise tolerated internally. Several studies have found that departments with officers who have accumulated multiple excessive force complaints continue to employ and even promote those officers, a pattern that civil liability might otherwise interrupt.
The political history of qualified immunity reform illustrates the gap between public support for a policy change and the political system's capacity to deliver it. After George Floyd's murder in May 2020 produced the largest protest movement in American history, polling consistently found majority or supermajority support for qualified immunity reform across partisan lines. The George Floyd Justice in Policing Act, which would have eliminated qualified immunity, passed the House in March 2021 with 220 votes. It died in the Senate, where it could not overcome the 60-vote filibuster threshold. A second version passed the House. It died in the Senate again. The legislative filibuster, which is not in the Constitution and was not designed to govern civil rights legislation, functioned as a structural veto over the majority's clearly expressed will on a high-profile policy question.
The legal status of qualified immunity is genuinely uncertain in a way that recent commentary sometimes obscures. The Supreme Court has declined to reconsider the doctrine in multiple cert petitions, including several cases where individual justices wrote separately to question its foundations. Justice Thomas's 2017 concurrence in Ziglar v. Abbasi directly challenged the doctrine's historical basis. Justice Sotomayor has written repeated dissents arguing the Court's qualified immunity decisions have produced a doctrine that 'sends an alarming signal' that officers can 'shoot first and think later.' The doctrine rests entirely on judge-made law — which means the Court could reverse or significantly narrow it without any action by Congress. Whether it will remains uncertain, but the legal case for the doctrine is weaker than its durability in case law suggests.