It’s Time To Get Rid of Qualified Immunity

The legal doctrine lets government employees off the hook for violating individuals’ rights

By Chad Reese and Tommaso Solomon

Two years after a summer of protests rocketed “qualified immunity” from an obscure legal doctrine into a central feature of both federal and state policy debates, its eventual fate is still uncertain. Even as state legislators begin to wrap up their 2022 sessions, many of them are doing so with qualified immunity legislation still lingering in committees. Unfortunately, the current debates about qualified immunity have all too often been based on misunderstandings about what precisely it is, whom it applies to and what reform might look like.

Perhaps the greatest misunderstanding about qualified immunity is that it exclusively applies to law enforcement. In fact, qualified immunity is a legal defense, created by the Supreme Court in 1982, that protects all government employees from legal liability in lawsuits over the alleged violation of constitutional rights. But because of this misconception, an issue that might have otherwise been viewed as a reasonable, bipartisan and even noncontroversial government accountability reform proposal has regularly found itself mired in hyperpartisan battles.

After all, many legislative efforts to curb or eliminate qualified immunity have focused entirely on law enforcement, or even more specifically on police use of force or unreasonable searches and seizures. New York City famously enacted just such a law last April, but legislative efforts in Colorado, Maryland and New York state also focus entirely on rights violations in the context of police reform.

Elsewhere—notably in New Mexico, which ended qualified immunity as a defense for all government employees—efforts to revisit the doctrine have been refreshingly holistic and departmentally neutral. In other words, if you’re a New Mexico resident, it doesn’t matter if your rights were violated by a police officer, a public school teacher or someone working in the Department of Health. You get to have your day in court without worrying that a judge will throw out your case before even deciding whether you were a victim.

But these different state approaches—ending qualified immunity only for law enforcement or ending it for all government employees—demonstrate why an otherwise popular policy proposal hasn’t yet found traction in more states, and why so many people get the details of the debate wrong even today.

Qualified Immunity’s Origins and the ‘Clearly Established’ Standard

The actual source of qualified immunity as we know it today came out of a personnel dispute in the Nixon administration. In Harlow v. Fitzgerald, the Supreme Court wrote that “government officials performing discretionary functions, generally are shielded from liability for civil damages,” and that “conduct [that] does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” would be immunized from civil suits. In other words, all government officials would enjoy near-complete immunity for their actions so long as they didn’t violate a “clearly established” right.

This “clearly established” standard is one-half of the bar anyone suing a government employee must clear to overcome qualified immunity. The two-part test asks, first, was a right violated at all? Second, was that right clearly established?

Unfortunately, “clearly established” doesn’t mean you can point to a right in the Constitution and then argue it was violated. In practice, victims must point to a federal appellate or Supreme Court case with facts nearly identical to theirs to prove that the right was “clearly established.” And to say the previous case must be nearly identical is not hyperbole. Courts routinely throw out cases over the most petty and superficial discrepancies.

In the 2020 Sampson v. Los Angeles decision, for example, the Ninth Circuit held that a social worker who sexually harassed a woman seeking guardianship did not violate any “clearly established” rights, because the existing case law only covered such violations at the hands of “a coworker, supervisor, classmate, or teacher.” Everyone agreed that the behavior constituted sexual harassment, but the tiny distinction between being the victim’s caseworker and being her coworker was enough to grant the official qualified immunity.

This kind of hair-splitting creates vicious cycles in government employee behavior: Government agents know that as long as they violate someone’s rights in a unique or creative way, they are almost certain to be protected from accountability. And we owe this hair-splitting largely to a 2009 Supreme Court case, Pearson v. Callahan, which gave courts the ability to grant qualified immunity without first determining if a rights violation had taken place. When that happens, rights can’t ever get “clearly established” in the first place, and the next government worker to engage in the same behavior is also likely to escape accountability.

Beyond Police Reform

Police use-of-force cases often provide the clearest or most commonly cited examples of where and how this “clearly established” rule has been used to shield even obvious and intentional violations of constitutional rights. But the reality is that qualified immunity protects all government employees at the local, state and federal levels. In fact, some of the most egregious examples of qualified-immunity abuse come from public school officials violating the rights of minors.

In Safford Unified School District #1 v. Redding, for example, qualified immunity protected school officials who detained and strip-searched a 13-year-old girl. In that case, the court held that searching a minor’s underwear did violate the Fourth Amendment, but they still granted the school’s employees immunity, reasoning that the right had not been “clearly established.”

Doe v. Woodard, a case appealed to the Tenth Circuit and then denied review by the Supreme Court, offers a similarly shocking example of school officials violating a minor’s rights. There, school employees and a caseworker removed the clothing of a preschool student and searched the child for signs of abuse. Without parental consent or a court-issued warrant, the officials went even further and photographed the child’s body during the search. In other words, both the District and Circuit courts agreed that strip-searching and photographing a preschool child without so much as a warrant did not violate any “clearly established” rights.

In the District Court case Dariano v. Morgan Hill Independent Unified School District, a school administrator forced students to remove clothing depicting the American flag. He was granted qualified immunity when parents sued to protect their children’s First Amendment rights, even though any reasonable public official would have known that his actions violated the First Amendment.

In the Fifth Circuit 2021 case T.O. v. Ft. Bend Independent School District, a first grade student with disabilities was brutally seized in a chokehold and pinned to the floor by the teacher and was released only when the student’s aide intervened. There, the court held that because freedom from corporal punishment in schools was not a “clearly established” right, the teacher was entitled to qualified immunity.

Like any list of constitutional rights violations by government officials, this shouldn’t be considered exhaustive by any means. But these incidents do begin to paint a very different picture of qualified immunity than most defenders typically put forth.

Some argue that, as U.S. Senator Tom Cotton wrote, “Qualified immunity is essential to effective and diligent policing.” But this argument does not justify granting school officials legal immunity from strip-searching, abusing or suppressing the speech of students. None of these cases involved split-second decision-making, and all were cut-and-dried situations of unconstitutional behavior. Instead of being essential to effective and diligent policing, qualified immunity is often an excuse for a job badly and unconstitutionally done.

What Does ‘Ending’ Qualified Immunity Actually Mean?

As a federal legal doctrine established by the Supreme Court, qualified immunity cannot be abolished by the states. Substantively changing the doctrine will require either Congress to act or the very same Court to revisit the issue and change its precedent.

But states can enact statutes allowing lawsuits for constitutional rights violations (either federal or state) in their own courts, and then deny the use of qualified immunity (or its state alternative) as a legal defense in those cases. That work-around is essentially the approach states like New Mexico take when tackling the issue, and it is the basis for the Institute for Justice’s model legislation that could be applied to other states.

Importantly, all this means is that if citizens accuse a government official of violating their rights, they get to have a judge determine if those rights were really violated, and if they were, the victims are entitled to damages. In other words, this is a simple description of how most Americans already think the justice system operates.

Despite fears that ending qualified immunity would result in a rash of frivolous lawsuits, state and federal proposals to reform the status quo would do nothing to touch the various rules of civil procedure that already allow courts to throw out frivolous lawsuits, or even sanction attorneys who bring them.

Additionally, removing the qualified immunity defense would not penalize police or other officials for making reasonable mistakes. In Graham v. Connor, a Supreme Court case from 1989, the Court held that claims against law enforcement are “subject to the objective reasonableness standard of the Fourth Amendment.” That standard instructs judges to adopt the perspective of “a reasonable officer on the scene rather than with the 20/20 vision of hindsight.” So, qualified immunity is not needed to shield officials from liability in such cases: The Constitution itself absolves them of those mistakes.

Finally, ending qualified immunity for government officials is highly unlikely to bankrupt anyone, despite the concerns of those like Sen. Cotton who believe that the doctrine “shields good police officers from bankruptcy.” In fact, we already know (from cases that manage to defeat a qualified immunity defense) that 99.98% of money awarded to plaintiffs ends up being paid, through a process called indemnification, by governments rather than individuals. In fact, “officers are more likely to be struck by lightning than they are to contribute to a settlement or judgment in a police misconduct suit.”

In Sen. Cotton’s defense, he is not alone in these mistaken assumptions about qualified immunity. At the state level, the debate is often governed more by myth than by reality, and both Democrats and Republicans contribute to the confusion.

Luckily, that bipartisan misunderstanding is mirrored by wide-ranging bipartisan agreement that the time to end qualified immunity is long past due. In fact, cross-ideological support for ending qualified immunity is one of the most striking areas of compromise in American politics today. Whether you identify as a progressive concerned about police use of force, a libertarian concerned about government surveillance issues, a conservative outraged by what is happening in public schools today or simply someone who believes that if every day Americans must follow the law, then government employees must follow the Constitution, there is a clear motivation to ensure that rights violations can be addressed by the courts and victims can be made whole.