Qualified immunity is a blank check for government overreach

The killing of George Floyd has sparked protests and discussions of race, police abuse, and criminal justice reform across the country. George Floyd’s killing has also sparked discussions of a legal doctrine called “qualified immunity” that government bureaucrats and regulatory officers have used as a legal defense to violate people’s rights.

For decades, qualified immunity has enabled government officers ranging from irresponsible tax collectors to violent police officers to violate people’s rights, many times with little to no consequences. Coincidentally, there are multiple cases the Supreme Court is currently considering that—if taken—have the power to reform and hopefully eliminate qualified immunity altogether. Ending qualified immunity would ensure that government employees who violate people’s rights answer for their misconduct before a jury.

History of qualified immunity  

During Reconstruction following the Civil War, Congress created a simple law that made it easy for all Americans to demand the government follow the Constitution and the laws of the land. That law, known as 42 USC Section 1983, “Civil Action for Deprivation of Rights,” says that every government official who, under color of law (that is, while doing their government job), violates someone’s constitutional or statutory rights shall be liable (must pay damages) to the person who suffers that injury. In other words, if a government worker violates someone’s constitutional rights in their role as a government official, they must pay that person for the damage caused.

This law was a response to the widespread harassment of freed slaves, and Congress was making it clear that it would no longer allow such harassment in the United States. Section 1983 effectively enforced the promises set out in the Bill of Rights and Reconstruction Amendments—they were no longer just empty words on paper.

Yet, despite the law’s simplicity and power, in a 1982 Supreme Court decision called Harlow v. Fitzgerald, the Court created qualified immunity by ruling that government officials, including law enforcement officers, can be sued for damages in court for violating someone’s rights only if the violation is “clearly established.” Basically, for an official to be held accountable, it must be objectively clear to any reasonable person that what he or she was doing was wrong.

While that might not sound nefarious on its face, in practical terms, qualified immunity means that in almost all cases, if a government agent violates someone’s property rights, freedom of speech, or even physically injures them, the government agent cannot be held liable for damages (that is, money) unless there is an existing legal precedent that person can point to showing that exact specific action is illegal for government agents. The government abuse that qualified immunity enables can range from excessive government fines from overzealous regulators to violence at the hands of irresponsible police officers.

Qualified immunity has led to absurd government abuses. For example, in California, police used qualified immunity as a defense for stealing $225,000 in cash and rare coins from someone’s bedroom while executing a search warrant. The three‐judge panel held that while theft may be “morally wrong,” the officers could not be sued because the Ninth Circuit had never specifically considered the issue, and therefore the right not to have police steal your property while executing a search warrant was not “clearly established” in that jurisdiction.

Other qualified immunity abuses include cases like Baxter v. Bracey, where police used qualified immunity as a defense for deploying a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. The Supreme Court is considering hearing Baxter this upcoming term. There’s also the case PLF plans to weigh in on from New Jersey in which a local tax collector used qualified immunity to avoid liability for refusing to allow a homeowner to pay the back taxes on his house, despite being required by law to do so. Because the tax collector refused to accept the payment, the homeowner lost his home.

All of these cases were thrown out of court at some point because of qualified immunity. Simply put, that is not how Section 1983 is supposed to work. Any American whose rights are violated deserves their day in court before a jury.

When a law is unjust, it leads to distrust among the people—which is what we see too often between communities and the officials that police and regulate them. The scales of justice often favor the government, so when there’s no penalty on the officials who violate people’s rights, the community does not trust the government to act fairly. Eliminating or limiting qualified immunity will go a long way toward rectifying this imbalance of power and establishing trust between law enforcement and the community they police.

Ending qualified immunity

In a recent PBS documentary, Justice Clarence Thomas eloquently explained the importance of fair and just laws, “You look around society and you see its laws. Laws affect everybody. If you’re poor and you look at people like my grandfather…. I think of when he came home one day and he was very upset. And he was taking a drink—he never took a drink in the middle of the day. Well what had happened was he was driving the oil truck, [and] a police officer stopped him ‘for having too many clothes on.’ That’s ridiculous. He had no way of challenging that. The law: he ran into the law and he was always afraid of that…. So I decided I was going to go to law school.”

Although Justice Thomas wasn’t talking about qualified immunity in that story, he may as well have been. When a government official—be it a police officer or a bureaucrat—violates your rights, qualified immunity prevents you in almost all cases from challenging that abuse and asking for a jury of your peers to deliver justice at trial.

It’s time to reform qualified immunity or end it entirely. Hopefully the Supreme Court takes this historic opportunity to end government’s blank check for abuse.