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Topic / Fairness and Justice

Duty and Liability: A Case for Preserving Qualified Immunity

Qualified Immunity and US Law Enforcement

Qualified Immunity at the federal level is one of the most controversial legal doctrines in United States Jurisprudence. Under this doctrine, government officials are protected from liability when they perform their duties in a manner that has not been clearly established unconstitutional. As with many judicial doctrines, qualified immunity is highly complex and constantly evolving. It requires careful examination of each case to understand how it applies to the situation in question. This level of complexity and nuance can be difficult to parse, leading to overgeneralizations and assumptions about qualified immunity that are often based on edge cases and overlook the principal value of the doctrine.

The use of qualified immunity by law enforcement officials is the doctrine’s most debated point. Advocates assert that it offers an essential shield against liability, crucial for the effective functioning of the profession. Conversely, critics contend it erects a legal barrier that presents litigants with nearly insurmountable challenges. When deciding the future of qualified immunity, it is crucial for policymakers to grasp the breadth and consequences of any proposed changes. Policing in the United States operates within a finely tuned ecosystem comprised of legislative statutes and judicial precedents. Law enforcement officers make daily decisions guided by the safeguards, boundaries, and potential repercussions outlined in these legal frameworks.

There is compelling contemporary evidence that officer behavior can be significantly impacted by external influences.1, 2, 3 Significant changes to qualified immunity at the federal level would almost certainly adversely affect officer behavior nationwide. The purported positive effects of removing or significantly altering the doctrine may be far less impactful on plaintiffs than popularly believed.4 The structural negative impacts and limited advantages associated with eliminating qualified immunity underscore a critical caution for policymakers; altering this doctrine could inadvertently undermine the efficacy of law enforcement without delivering substantial improvements in legal accountability or public trust.

Origins and Contemporary Application

To fully understand the impact and significance of qualified immunity, it is essential to understand its historical origins and evolution. The right of citizens to sue state and local officials for federal constitutional violations was first established during the Reconstruction era. The Civil Rights Act of 1871, also known as the Ku Klux Klan Act, was partly enacted to provide a legal avenue for former slaves and other citizens to seek civil redress against officials who violated their constitutional rights.5 Within the Act, Section 1983 established the mechanism for civil lawsuits alleging the deprivation of rights and remains a widely utilized tool in such legal actions to this day.6 While Section 1983 provided a legal mechanism for redress, the law’s practical impact wasn’t felt until almost a century later during the civil rights movement. During that time, case law surrounding qualified immunity began to develop. In 1967, the US Supreme Court decided Pierson v Ray, which was a landmark case involving qualified immunity for law enforcement officers.7 The decision held that police officers acting in their official capacity are shielded from civil rights lawsuits if they believed in good faith that their conduct was lawful, even if that belief was mistaken.8

Qualified immunity as we know it today was further developed in 1982 with the US Supreme Court’s Harlow v Fitzgerald decision. Harlow held that government officials performing discretionary functions are generally shielded from civil liability if their conduct does not violate clearly established legal rights.9 Five years later, in Anderson v. Creighton, the Supreme Court would further sharpen this point, holding that for a right to be clearly established, it must be sufficiently clear that a reasonable official would understand what he is doing violates that right.10 While there have been several subsequent decisions concerning qualified immunity, the general principle remains. To strip an officer from the protections of qualified immunity, the plaintiff must demonstrate two things;

  1. That the officer violated a constitutional right.
  2. That the right has been clearly established.

The requirement for a right to be “clearly established” has faced intense scrutiny, with some asserting that plaintiffs are expected to identify precedents with facts nearly identical to their own case. However, this is a misinterpretation. In the Anderson v Creighton decision, Justice Scalia clarified this point, “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” While an exact set of circumstances is unnecessary, some specificity is required. These seemingly stringent requirements are designed to protect officers from liability for actions taken in uncertain legal situations. This standard becomes quite reasonable when considering the high-stress, split-second decisions law enforcement officers face regularly.

Unintended Consequences and Limited Benefits

Amending the qualified immunity doctrine can appear to be an attractive policy instrument in pursuit of modifying law enforcement officers’ behavior. To what extent the behavior will be altered is vitally important to understand.  We can look to recent examinations of the de-policing phenomena as an indicator. In October 2015, then-FBI Director James Comey speculated increases in homicide rates across the country could be linked to a marked change in police behavior. Director Comey explained, “I do have a strong sense that some part of the explanation is a chill wind blowing through American law enforcement over the last year. And that wind is surely changing behavior.”11 A 2017 Stephen Rushin and Griffin Edwards study created an empirical foundation for Director Comey’s speculation. They found that external federal regulations on law enforcement agencies are associated with statistically significant increases in crime rates in the affected jurisdictions.12 A separate 2017 study by Willard Oliver took a more granular look at the perceptions of de-policing among officers. He found that civil litigation was referenced “almost universally” as a primary reason for the de-policing phenomenon.13 Based on studies such as these and common-sense assumptions about human behavior, it is reasonable to conclude removing the protections afforded by qualified immunity may have an adverse effect on officer behavior. As Willard Oliver noted in his examination of de-policing, “If the police are not engaging in crime fighting, but are rather disengaging, there is a reasonable belief that crime will increase.”14 These links between external factors, officer engagement, and rising crime rates are crucial to understanding the societal threats associated with eliminating qualified immunity.

A fair argument against this conclusion assumes the harms caused by qualified immunity outweigh the adverse effects of its elimination. A staunch opponent of qualified immunity, Massachusetts Senator Edward Markey succinctly made that case with a social media post, “Qualified immunity makes it almost impossible for a victim of excessive force by a police officer to hold that officer accountable in a court of law. That must end.”15 The assertion that accountability is “almost impossible” when qualified immunity is in play is quite startling and, should it hold, presents a compelling case for eliminating the doctrine. However, empirical evidence shows conflicting results on how often qualified immunity shields law enforcement in Section 1983 lawsuits. In 2014, the Yale Law Journal published a study presented as “the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation.”16 The author reviewed 1,183 section 1983 cases brought against local and state law enforcement defendants. The cases spanned a two-year period and came from five separate federal court districts.17 The scope of this research allows observers to judge whether it is indeed “impossible” to hold officers civilly accountable within the legal system in the presence of qualified immunity. 

Out of the 1,183 cases reviewed, approximately 82.8% or 979 were cases where qualified immunity was a possible defense.18 Out of those 979 cases, defendants raised qualified immunity in a total of 37.6% or 368 cases.19 Of the 368 cases in which qualified immunity was invoked as a defense, 38 were dismissed based on that principle, constituting approximately 10.3% of the cases.20 Within the broader spectrum of the 979 cases where qualified immunity could be raised, only 3.9% culminated in dismissals based on that defense.21

While each case is unique, and even a tiny percentage of dismissed cases can be painful for the plaintiffs, the numbers do not show police accountability as an impossibility due to qualified immunity. The overall utilization rate (10.3%) and dismissal rate (3.9%) reveal a doctrine that is sparingly used and even more rarely successful. These statistics belie the narrative of qualified immunity being an insurmountable hurdle to police accountability.


Qualified immunity is not without flaws; numerous judicial decisions predicated upon the doctrine have justifiably invited scrutiny and debate. Such instances often seize public interest, prompting repeated calls for the reassessment or abolition of the doctrine. When this occurs policymakers should and must approach the issue meticulously. The judicial development of qualified immunity, specifically for law enforcement, has been carefully crafted by the US Supreme Court for over half a century, with most landmark cases being votes of 8-1 or greater.22, 23, 24

These bipartisan decisions recognize law enforcement officers’ vital role in maintaining our societal order. They also recognize officer behavior, like any person’s behavior, can be contingent on external environmental factors. Society has a strong interest in ensuring public officials are not only held accountable when they do wrong but are also allowed “…breathing room to make reasonable but mistaken judgments about open legal questions” as Justice Antonin Scalia articulated in his Ashcroft v Al-Kidd decision.25 While qualified immunity is invoked sparingly, its existence provides breathing room for public officials, particularly law enforcement officers to do their jobs effectively. Carefully considering the unintended consequences of removing the doctrine, with the tangible benefits of doing so, is vital. After doing so a policymaker should conclude, as the judiciary has for the last 50 years, the doctrine of qualified immunity is fair, necessary, and foundational to effective governance in the United States.

  1. Stephen Rushin and Griffin Edwards, “De-Policing,” Cornell Law Review 102, no. 3 (March 2017): 721-82. ↩︎
  2. Zachary A. Powell, “De-Policing, Police Stops, and Crime,” Policing: A Journal of Policy and Practice 17 (2023). ↩︎
  3. Lawrence Rosenthal, “The Law and Economics of De-Policing,” Federal Sentencing Reporter 33, no. 1-2 (2020): 128-41. ↩︎
  4. Joanna C. Schwartz, “How Qualified Immunity Fails,” Yale Law Journal 127, no. 1 (October 2017): 2-77. ↩︎
  5. Philip Matthew Stinson, Sr. and Steven L. Brewer, Jr., “Federal Civil Rights Litigation Pursuant to 42 U.S.C. §1983 as a Correlate of Police Crime,” Criminal Justice Policy Review 30, no. 2 (2016): 225. ↩︎
  6. Stinson and Brewer, “Federal Civil Rights Litigation Pursuant to 42 U.S.C. §1983 as a Correlate of Police Crime.” ↩︎
  7. Pierson v. Ray, 386 U.S. 547 (1967). ↩︎
  8. Ibid. ↩︎
  9. Harlow v. Fitzgerald, 457 U.S. 800 (1982). ↩︎
  10. Anderson v. Creighton, 483 U.S. 635, 639 (1987). ↩︎
  11. James B. Comey, “Keeping Our Communities Safe Through Shared Perspectives, Information, and Understanding,” FBI, October 26, 2015, ↩︎
  12. Rushin and Edwards, “De-Policing,” 730. ↩︎
  13. Willard M. Oliver, “Depolicing: Rhetoric or Reality?” Criminal Justice Policy Review 28, no. 5 (2017): 449. ↩︎
  14. Oliver, “Depolicing: Rhetoric or Reality?” 449. ↩︎
  15. Edward Markey (@SenMarkey), Qualified immunity makes it almost impossible for a victim of excessive force by a police officer to hold that officer accountable in a court of law. That must end. X. July 1, 2020, 3:34pm. ↩︎
  16. Schwartz, “How Qualified Immunity Fails,” 2. ↩︎
  17. Ibid. ↩︎
  18. Ibid, 28. ↩︎
  19. Ibid, 36. ↩︎
  20. Ibid, 45. ↩︎
  21. Ibid. ↩︎
  22. Pierson v. Ray, 386 U.S. 547 (1967). ↩︎
  23. Harlow v. Fitzgerald, 457 U.S. 800 (1982). ↩︎
  24. Saucier v. Katz 533 U.S. 194 (2001). ↩︎
  25. Justice Scalia, “Ashcroft v. al-Kidd,” 568 U.S. 731 (2011). ↩︎