Opinion: The Days of Egregious Qualified Immunity Abuses May Soon Be Over


On the eve of the forthcoming trial of former Minneapolis police officer Derek Chauvin, America’s media outlets are flocking to the city in a bid to manufacture the most sensationalized headline.

As always, a more fruitful but less attractive debate is occurring beneath the mainstream consciousness.

This conversation focuses on the Supreme Court’s qualified immunity doctrine and how it relates to American conceptions of constitutional rights and policing.

Qualified immunity is a legal doctrine that originated in the court’s 1967 ruling in Pierson v. Ray, UCLA law professor Joanna Schwartz wrote in The Atlantic. The legal protection grants government officials a shield from facing legal liability for civil rights violations unless a victim could prove that his or her rights were clearly violated.

The doctrine’s original intention was to protect police officers who had acted in good faith. Since then, however, qualified immunity has tipped the scales to favor government defendants.

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Unless a court can deem that a government official has violated “clearly established law,” a citizen whose constitutional rights have been violated has little chance of being awarded remedy.

What this means is that a court could dismiss a civil rights lawsuit against a government agent not because what the agent had done didn’t violate the Constitution, but on the basis that there wasn’t a prior case in which there was a “clearly established” precedent, Schwartz said.

According to court documents, under the current doctrine of qualified immunity, federal courts have granted immunity to social workers accused of sexual harassment, prison guards who forced a woman to remove a personal sanitary device and state medical board officials who searched a doctor’s office without a warrant.

This policy has created an unhealthy balance between the government and the citizen. And it would be proper and just to discuss how mending qualified immunity could re-establish a rights-first approach to American policing, which would benefit all American citizens.

Should qualified immunity be abolished?

On March 3, the House of Representatives approved the George Floyd Justice in Policing Act.

Of the many amendments and provisions, “the bill would eliminate ‘qualified immunity’ for all local, state and federal law enforcement officers,” according to Forbes senior contributor Nick Sibilla.

Under current revisions, however, the bill wouldn’t apply to government officials who are not police officers, codifying qualified immunity as a defense for the others and preventing injured Americans from filing civil suits against federal agents.

Rep. Ayanna Pressley and Sen. Ed Markey, both Massachusetts Democrats, reintroduced the Ending Qualified Immunity Act, which would abolish qualified immunity for local and state government officials but not federal workers.

“We as a country have a choice: We can either choose police accountability, or choose qualified immunity, but we cannot choose both,” Democratic Rep. Ritchie Torres of New York said.

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A divided Republican caucus in June expressed varying degrees of support for a change to the legal protection.

Some Republicans viewed abolition of qualified immunity as a “poison pill,” or a threat to their chances to pass a unified police reform bill in times of increased public pressure, according to The Hill.

“The biggest concern I have is about anything that might stop us from actually passing a police reform bill, and that could do it because it does divide our conference,” Sen. John Cornyn of Texas said.

Multiple factions emerged as a result of division on the issue — some of which argued for varying degrees of reform.

“I’m for anything that enhances personal responsibility, accountability and transparency,” Sen. Mike Braun of Indiana said. “When I talk about reforming it, it’s this simple: make sure that in these egregious instances, that there is accountability, and you’re protected, just like you aren’t in other elements of society.”

Sen. Lindsey Graham of South Carolina offered similar remarks about including an amended provision to adjust how the legal protection would function.

“There needs to be a filter when it comes to lawsuits,” Graham said, according to The Hill. “It is now time, in my view, to look at the development of the qualified immunity doctrine as it relates to the 1983 underlying statue and see if we could make it better, not gut it.”

“If you want to reform it so that municipalities and agencies and organizations running police departments will have some protection but not absolute immunity, let’s talk.”

Sen. John Thune of South Dakota indicated that including a change to the qualified immunity doctrine was a “bridge too far” for most Republicans.

“I think that anything that messes with the individual officer’s protection against, you know, a lawsuit that they could lose … everything over is too far,” Thune said.

As it stands, qualified immunity has received some sort of criticism from nearly every corner of the political spectrum — a rare sight for today. The judicial doctrine has received condemnation from Supreme Court Justices Clarence Thomas and Sonia Sotomayor and judges appointed by both Democrats and Republicans, according to The Atlantic.

The libertarian-leaning Cato Institute issued a lengthy critique of the doctrine last September, illustrating how, at its roots, “qualified immunity is one of the most obviously unjustified legal doctrines in our nation’s history.”

“Victims of egregious misconduct are often left without any legal remedy simply because there does not happen to be a prior case on the books involving the same exact sort of misconduct,” Jay Schweikert wrote.

“By undermining public accountability at a structural level, the doctrine also hurts the law enforcement community by denying police the degree of public trust and confidence they need to do their jobs safely and effectively.”

Qualified immunity is rooted in an interpretation “of our principal federal civil rights statute,” Section 1983, he said. The law “was first passed by the Reconstruction Congress as part of the 1871 Ku Klux Klan Act” and was one of the three Enforcement Acts “designed to help combat lawlessness and civil rights violations in post-war South.”

But the statute doesn’t include a provision for any immunities, according to Schweikert. “It simply states that a person acting under state authority who causes the violation of a protected right ‘shall be liable to the party injured.’”

“Thus, if qualified immunity is to have any valid legal basis,” it doesn’t originate from Section 1983, he said.

The debate about qualified immunity, when addressed by those in the corporate media and the members of Congress, often fails to acknowledge how this discussion is rooted in core traditions of American political thought and constitutional rights.

Even political alliances as odd as ones in which progressives, libertarians and conservatives all happen to find themselves on the same side of the fence can occur under certain circumstances.

For ordinary Americans, this is a productive conversation that could help re-establish the traditional norm that policing and adjudicating should be based on a rights-first approach. That would simply follow in the heritage of American political thought idealized in the Declaration of Independence, then codified in the Constitution and the nation’s landmark statutes.

“The government of the United States has been emphatically termed a government of laws, and not of men,” former Chief Justice John Marshall wrote in the famed case of Marbury v. Madison. “It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”

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Brett Kershaw is an associate staff writer for The Western Journal. A graduate of Virginia Tech with bachelor of arts degrees in political science and history, he is a published author who often studies political philosophy and political history.
Brett Kershaw is an associate staff writer for The Western Journal. A graduate of Virginia Tech with bachelor of arts degrees in political science and history, he is a published author who often studies political philosophy and political history.