The Basics of Qualified Immunity

Over the years I’ve heard many people make comments, ask questions, and give their opinion on Qualified Immunity. Most recently Qualified Immunity has been brought up in conversations about the Derek Chauvin case in Minneapolis. It’s very obvious that to the average person QI is not well understood. Many have this misconception that QI is a tool for a police officer to get away with crime. It is not. There are volumes of scholarly information on QI. And if you’re a legal eagle I’ll include some links at the end that you can deep dive into, “for fun.” But my hope is that this article will give everyone a basis to start from when considering QI.

Qualified Immunity has its beginning way back in the jolly ol’ days of 1871. Congress created a law that came to be known as the Ku Klux Klan Acts. It was congress trying to stop groups of people from violating the rights of others. Then in the 1960’s the Civil Rights movement enhanced section 42 USC §1983, of the Ku Klux Klan Acts. This enhancement gave people the right to sue whoever was responsible for violating their Constitutional Rights. Then some years later after some smaller cases on the subject, the Supreme Court gave us Harlow v. Fitzgerald which expanded the doctrine of QI and is essentially the basis from which QI is viewed today. As an issue of clarity on QI, while it is commonly associated in law enforcement cases it applies much more broadly across government.

To start, QI does not prevent an officer or government official from being criminally charged if they violate codified law. Simply put, if you’re an officer and you break the law QI does nothing to prevent you from going to jail. QI protects officers from being sued in a civil court. And even then, the provisions for qualified immunity protections are constricted to a limited set of circumstances, it’s not a blanket protection.

Let’s get rid of one of the biggest misconceptions. A misconception that is damaging to the public’s trust in law enforcement.  That QI removes an officer’s liability. In this sense it’s like saying that because of QI, an officer is no longer responsible for their actions. This is very misleading. One need only look at the term’s first word “qualified” to begin to see the error in this. QI does not take away an officer’s liability for wrongdoing. For QI to be applied there must be a qualifying scenario or set of circumstances. To use some words from the Harlow v. Fitzgerald Supreme Court Case of 1982[1], “public officials have immunity unless the official knew or should have known that their actions violated the plaintiff’s constitutional rights.”

To put this into a scenario. Let’s say an officer while restraining a non-compliant individual injures the individual in some way. This could potentially result in an excessive force charge against the officer and a federal §1983 claim. Let’s then say that this officer shows that the action he was taking while restraining this individual was exactly what his agency’s policy calls for. The officer would likely be protected by QI in this case. This could lead us down another rabbit hole of the agency’s policy being insufficient, failure to train, maybe even deliberate indifference on the agency’s part. But, the officer could have QI protection in this scenario. In this situation the department is often responsible for damages. This is another reason agencies have an interest in creating sound policies and procedures. Because when their officers follow the procedures, and something goes wrong it’s the department that’s “on the hook.” It bears noting that when someone says QI leaves injured parties with no remedy, they are incorrect. It just means they’re remedy comes from the department, not the individual officer.

There are attempts being made now to remove qualified immunity protections. I feel this is misguided effort. If people worked to make sure officers are sufficiently trained for the tasks, their effort would be better placed. Removing QI also runs the risk of a flood of frivolous lawsuits. Imagine for a moment your small town, with its current budget having to defend even a few lawsuits. Even if people bringing the suits are not winning cases against the municipality, out of court settlements and attorney’s fees alone could bankrupt a smaller locale.

In many of the QI cases citizens become angry when they find an officer has been protected by QI because the officer followed their agency’s procedures. I would encourage people to be more get to know and be engaged with their local law enforcement and become aware of the policies that govern an officer’s actions. To punish an officer for following the rules would be a terrible precedent. Instead work to ensure the rules of the game are fair.

One thing is clear in the months to come we will hear more about Qualified Immunity and I’ll have more on it as cases come to light. I’ve included links below for further reading on the subject that I promised the legal eagles. Until next time, educate yourself, reflect on what you know, and move forward!

https://fedsoc.org/events/qualified-immunity-a-debate#:~:text=Created%20by%20the%20Supreme%20Court,calls%20%22clearly%20established%20law.%22

https://www.law.cornell.edu/uscode/text/42/1983


[1] https://www.lexisnexis.com/community/casebrief/p/casebrief-harlow-v-fitzgerald

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