Criminal Justice and Policing

Qualified Immunity FAQ

Qualified immunity has protected law enforcement officers and other government officials from being held accountable when they violate people’s constitutional rights for decades. The doctrine of qualified immunity allows state and local officials to avoid personal consequences related to their professional interactions unless they violate “clearly established law” and has been repeatedly used by police officers to escape accountability and civil liability for engaging in violent and abusive acts against the public. In practice, this often means that, unless there’s a case with nearly identical facts on the record, these officials can violate a person’s rights without being held personally responsible for their actions.

We’ve compiled answers to frequently asked questions about qualified immunity.

Qualified immunity is a judge-created rule that protects government officials, including police officers, when they are sued. The doctrine holds that officials who violate other people’s constitutional rights can only be held responsible if there exists a previous court decision, with very similar facts, that resulted in other officials being held accountable.

Qualified immunity has been used in many cases to protect officials who have engaged in a variety of misconduct, including fatal shootings, police brutality, stealing, sexual misconduct, and more.

In 1967, the United States Supreme Court introduced qualified immunity in Pierson v. Ray to protect police officers from financial liability after they arrested 15 clergy members for breaching the peace after they attempted to use a segregated waiting room at a bus station. The Supreme Court later struck the state law down as unconstitutional.

When the clergy members sued the officers, the Court ruled that the officers could not be held financially liable if they had acted in good faith and with probable cause. At the time, qualified immunity was a narrow doctrine that applied in limited circumstances, but the Supreme Court has expanded the doctrine dramatically in the years since.

Yes. In 1982, for example, the Supreme Court decided the case of Harlow v. Fitzgerald, which revised and expanded qualified immunity in two ways.

First, by eliminating the requirement from Pierson that officers must have acted in good faith. Second, by providing government officials with immunity unless their conduct violated “clearly established law.” This has been interpreted to mean that unless there was a case in the past that closely matched the facts of the officer’s conduct, the officer could not be held liable, no matter how horrendous their actions.

In 1985, the Supreme Court ruled that government officials had a special right to appeal decisions from trial courts denying them qualified immunity before trial. And in 2008, the United States Supreme Court ruled in Pearson v. Callahan that, when reviewing a qualified immunity ruling, courts did not need to determine whether officials violated the law. The Court has also continued to incrementally expand the reach of qualified immunity in other decisions over the years.

Some people claim that if qualified immunity is abolished, there will be a flood of frivolous lawsuits targeting officers, or that law enforcement officials will be bankrupted for doing their jobs.

None of this is true. There is no evidence that lawyers would file a host of lawsuits that had no merit, and, even if they did, existing legal rules ensure that frivolous lawsuits are dismissed regardless of whether qualified immunity exists.

Additionally, it is untrue that officials will be bankrupted for doing their job, as government officials, including law enforcement officers, are almost always protected through indemnification — a practice in which state or local governments agree to pay for the costs of any lawsuits against their employees.

Qualified immunity must be abolished because it allows law enforcement – as well as other government officials – to repeatedly violate the constitutional rights of people without consequence. Between 2015 and 2019, Reuters data highlighted that victims of misconduct lose more year after year when facing qualified immunity defenses from officials. By shielding officials from the consequences of their unconstitutional behavior, qualified immunity signals to officials that they are above the law and encourages further misconduct.

Qualified immunity has an outsized impact on police accountability because other potential mechanisms for holding the police accountability are ineffectual. Police officers already have notoriously robust protections and routinely escape accountability in administrative or internal investigations. Criminal prosecutions of law enforcement are also infrequent, while intervention from the Department of Justice in every instance of misconduct is simply not feasible.

Qualified immunity is also problematic because it denies justice to the victims of police brutality or government misconduct. Qualified immunity ensures that these victims receive no compensation from the people who have violated their rights, and it routinely denies them their day in court. Furthermore, qualified immunity ensures that this problem will get worse in the future because it simultaneously bars plaintiffs from recovering damages unless a case has already been decided on very similar facts and it tells courts that they need not decide new cases on their merits—which means that those new court decisions cannot be used by future plaintiffs to get around qualified immunity and win their cases.

There are multiple pathways to end qualified immunity. The Supreme Court can revisit the doctrine and abolish or limit it. Congressional legislation can also abolish qualified immunity, as the George Floyd Justice in Policing Act aimed to do before it stalled in the U.S. Senate.

States and local jurisdictions cannot end qualified immunity because it is enshrined in federal law, but they can pass legislation that ends qualified immunity at the state level and that limits the harms caused by federal qualified immunity. For instance, states can ensure that even if qualified immunity would block a lawsuit in federal court, people whose rights have been violated can bring the same sort of lawsuit for the same violation of their rights in state court. Colorado, New Mexico, and New York City are all examples of places that have taken steps to do this.

There are a number of avenues available to end qualified immunity once and for all, but it will take relentless advocacy and legislation to get the job done.

Qualified Immunity Working Group

LDF’s Qualified Immunity Working Group advocates for the end of qualified immunity through litigation and public advocacy. The Group litigates civil rights cases in the federal courts of appeals and the United States Supreme Court to limit the doctrine’s reach. Learn more about LDF’s QI Working Group and contact us here.

LDF Original Content

Debunking Myths About Qualified Immunity and Examining its Dangerous Realities

The myths that are used to justify qualified immunity are numerous and egregious, and the dangers are clear. We debunk these myths and show QI’s detrimental impacts, particularly on communities of color, and the hazard posed to public safety.

LDF Original Content

How Police Use Qualified Immunity to Get Away with Violence and Misconduct

Throughout the United States, law enforcement officers have stolen money and valuables, shot children, attempted to harm family pets, killed vulnerable people, and, worst of all, they have gotten away with it — all because of qualified immunity.

Justice in Public Safety

The Changing Landscape of Policing: Police Accountability Index

Through litigation, research, and legislative and policy advocacy, LDF has been at the forefront of efforts to transform public safety across the country. LDF has compiled an index of the efforts by states and cities to address police accountability and transform public safety since 2020.