What Is Qualified Immunity?

Even if you have a viable claim for a civil rights violation, a police officer might not be liable for the harm caused. Learn how the legal doctrine of qualified immunity shields officers from liability—even for unlawful acts.

By , Attorney · Mitchell Hamline School of Law

Qualified immunity is a legal doctrine that shields public officials from civil liability in lawsuits brought by victims of civil rights violations. Until recently, qualified immunity wasn't a well-known concept outside the legal profession. But recent cases, especially those involving police use of force, have pushed this legal doctrine into the mainstream news. As the law currently stands, public officials can still be immune (protected) from civil liability, despite their conduct being unconstitutional, as long as the officer's conduct didn't violate a "clearly established right." (More on this below).

Civil Rights Violations and Section 1983 Lawsuits

To understand qualified immunity, it helps to understand the underlying federal action involved—Section 1983 lawsuits (which gets its name from its statutory citation, 42 U.S.C. § 1983).

Under Section 1983, citizens may sue and seek money damages from public officials for alleged civil rights violations that the official committed under color of law. Let's break down some of these key terms.

Public officials. Public officials include state and local officials, such as police officers, prison guards, judges, city council members, county clerks, and school board members. (Federal officials can be sued for similar violations under what's called a Bivens action.)

Civil rights. A citizen's civil rights include those that are created by the Constitution or federal law, such as the right to be free from unreasonable search and seizures and cruel and unusual punishment. Other rights include the right to due process, freedom of speech, and equal protection.

Color of law. Public officials act under color of law when they misuse the authority and power given to them by the law. Most commonly, we hear about color of law violations in cases involving police misconduct and excessive use of force, but it can also occur when a county clerk refuses to issue marriage licenses to same-sex couples who can legally be married. (Ermold v. Davis, 936 F.3d 429 (6th Cir. 2019).) The key is that the official purports to be acting within their lawful authority.

Qualified Immunity

So where does qualified immunity come into play? Public officials who are sued under Section 1983 can raise a shield known as qualified immunity to protect themselves from civil liability.

Judges created the qualified immunity shield as a way to balance the competing needs of (1) public officials to perform discretionary duties without the constant fear of being sued and (2) victims to hold public officials accountable for acting in violation of the law. However, many critics believe the balance tips too much in favor of public officials due to a legal standard that protects officials' actions that don't violate a "clearly established right."

The Controversy: Clearly Established Rights

A clearly established right means one that "reasonably competent public official[s]" would know governs their conduct—one that existing court cases have said is beyond debate. Importantly, the standard doesn't hinge on the fact that the right exists (like to be free from excessive use of force), but rather that the specific conduct was clearly in violation of the right (such as using a taser 13 times on an already subdued victim). (Harlow v. Fitzgerald, 457 U.S. 800 (1982).)

Under this standard, a victim who suffers a civil rights violation can still lose her case. Qualified immunity will still apply unless the victim can show that the law (at the time of the violation) clearly established the official's specific conduct was unlawful. To do this, the victim typically needs to point to existing case law with similar facts.

The Debate: Setting the Bar Too High?

Proponents of the current rule argue it's needed so public officials can perform their duties without hesitation. And, because lawsuits won against public officials almost always end up being paid for by the government entity, the financial burden of loosening the standard would fall to local and state governments and taxpayers.

Opponents argue that the "clearly established rights" standard is so high that victims can only win if they can point to a case with nearly identical facts and circumstances. Given this high bar, critics maintain public officials are not accountable for their actions, and victims effectively have no remedy under the law for violations.

Examples of Qualified Immunity Cases

Because qualified immunity cases are intensely fact-specific, there's no bright line to determine if immunity applies or not. Here are some examples of excessive force cases. Where do you think they land on the question of qualified immunity?

Brooks v. City of Seattle. A police officer pulled over Brooks for speeding. Brooks, who was seven months pregnant, insisted she was not speeding and would not sign the traffic citation. After a heated discussion, Brooks refused the officer's demand that she get out of the car. Brooks informed the officer she was pregnant. The officer opened the driver-side door, twisted Brooks' arm behind her back, and tased her three times until she fell over. The officers then dragged Brooks out of the car face down and handcuffed her. (611 F.3d 433 (9th Cir. 2011).)

Dukes v. Deaton. During a no-knock warrant to arrest a suspected drug dealer, an officer deployed a flashbang into the suspect's bedroom window without visually inspecting the area, in violation of official instructions. The flashbang—which produces heat in excess of 2,000 degrees centigrade—landed on the suspect's bed next to his girlfriend, both of whom were sleeping. The girlfriend suffered severe burns and required hospitalization. (852 F.3d 1035 (11th Cir. 2017).)

Mullenix v. Luna. Officers deployed spike strips in an attempt to stop a fleeing suspect who threatened he was armed. One officer radioed his idea to shoot at the vehicle to disable it. Despite receiving orders from a superior not to shoot at the vehicle, the officer, who was not trained in this tactic, shot six times at the vehicle and killed the suspect. Four of the shots hit the suspect in the upper body; none hit the vehicle's radiator, hood, or engine block. (577 U.S. 7 (2015).)

In all of these cases, courts found excessive use of force but granted qualified immunity to the officers.

Talk to an Attorney

Qualified immunity presents difficult decisions for anyone considering filing a legal action against a public official. If you think your civil rights have been violated, contact a civil rights or personal injury attorney who can help evaluate your case and advise you on further steps.

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