Qualified immunity is a legal concept that sounds wonky but is not difficult to grasp. Put simply: Government workers, including members of law enforcement, cannot be sued in their capacity as private individuals for actions they take as part of their official responsibilities.
The doctrine was invented by courts to limit the liability of people who execute the law in good faith, even if it’s a law some people don’t like. While some form of qualified immunity is probably necessary to have a functioning society—we can’t have employees at the IRS sued for theft every time they garnish someone’s wages—applying it to law enforcement officers creates a different problem: The police are able to operate with apparent lawful authority even when their actions are flatly illegal.
Over the past two decades, weakening qualified immunity protections has become popular among progressives. Advocates seeking justice for Muslim Americans whose constitutional rights were trampled in the aftermath of 9/11 brought various lawsuits attempting to “pierce the veil” of qualified immunity and hold officials accountable for their constitutional transgressions. The calls to end qualified immunity have only grown louder as police officers have continued to be caught on video brutalizing or murdering Black people. Recent polls indicate that 59 percent of Americans favor ending qualified immunity, at least for police officers, which is a high level of dislike for a wonky legal doctrine. I mean, it’s not like nearly 60 percent of the country has an opinion about promissory estoppel or the rule against perpetuities.
Unfortunately, attempts to weaken qualified immunity have met with total failure in the courts, especially the Supreme Court. In mid-October, the justices overturned two decisions in which lower courts had allowed lawsuits to be brought against police officers by citizens (or their estates) alleging an excessive use of force. In one case, a police officer knelt on a suspect’s back (albeit for eight seconds instead of eight minutes) because the officer saw a knife. In another, officers shot and killed a man who was allegedly brandishing a hammer after they cornered him in a garage. In both cases, the Supreme Court ruled that even if a jury could find that the officers’ conduct constituted excessive use of force, they could not be sued because they had qualified immunity.
But the court didn’t stop there. Far from merely applying existing principles of qualified immunity to these cases, the court used them to strengthen the doctrine, making it harder for other litigants to pierce that immunity in the future. As it is, qualified immunity can be defeated only if you prove that cops violated a clear and well-known constitutional standard. For instance, the right to remain silent is a clear and well-known constitutional protection, and a cop who beats a suspect until they start talking might lose qualified immunity. I’d argue that it’s also clear and well-known that cops are not allowed to beat a suspect’s child in order to force the suspect to talk, but the Supreme Court’s rulings in these cases make it harder for litigants to prove that an iterative protection such as “no beating of family members” is clear, and harder still to prove that the police should know about it.
Many people will be familiar with the phrase “Ignorance of the law is no excuse.” But here the Supreme Court has effectively given police departments an incentive not to teach officers about the law, because a police force that’s ignorant of the Constitution has an easier time claiming qualified immunity.
Both decisions were per curiam, meaning they were unsigned and we don’t know how each justice voted. But it is notable that the decisions were released without any written dissents. Which means neither Sonia Sotomayor nor Clarence Thomas, the two justices who have been the most critical of qualified immunity in the past, wrote a dissent.
This is something many advocates against qualified immunity don’t seem to appreciate: We have gotten nowhere in terms of overcoming the problem through the courts.
What this means is that ending qualified immunity will have to be done through the legislative process, if it is to be done at all. We have to regard the Supreme Court—both the conservative and liberal justices—as enemies of this project, and any new law must be carefully written to preclude reinterpretation by the court. Congress will have to end qualified immunity for law enforcement outright or come up with a set of specific circumstances in which litigants will be allowed to pierce its veil and sue offending officers.
Does that sound like a job this Congress is up for? Yeah, that’s the problem.
The George Floyd Justice in Policing Act, which would eliminate qualified immunity for law enforcement, has collapsed in Congress. The Republican counterproposal, which would not, has also collapsed. And a bill sponsored by Representative Ayanna Pressley and Senator Ed Markey, which would end qualified immunity for police as a stand-alone proposal, has gone nowhere in this Democrat-controlled Congress either. That leaves President Biden, who is said to be mulling his options for using executive orders to implement police reforms—but even he can’t order the court to interpret standards like qualified immunity differently.
It would seem that Congress is too broken to pass a law that would invalidate a court-invented doctrine that almost 60 percent of the country is against. This Supreme Court has all but announced that it will continue handing “Get Out of Jail Free” cards to the police unless Congress intervenes, and Congress still refuses to do so.
There are many problems the Supreme Court creates for our society that Congress cannot easily fix. In theory, this is not one of them. Congress could simply end qualified immunity for law enforcement. At the very least, it should explain why it won’t.