Since the death of George Floyd this past May, and in the wake of the national turmoil his death provoked, both Congress and state legislatures have turned their attention to policing reform -- and in particular, the doctrine of qualified immunity. At the federal level, four separate bills have been introduced (both by Democrats and Republicans) that would eliminate or substantially modify qualified immunity nationwide. Meanwhile, several states have either passed or are currently considering policing reform that would eliminate or limit qualified immunity for state-level civil rights claims.
Unfortunately, the discussion around qualified immunity is plagued by misinformation. Nearly all of the defenses I've seen raised in support of the doctrine display a profound misunderstanding of what qualified immunity actually is and how it works, and I increasingly find that almost all of my public comments on this issue are devoted simply to correcting clear mistakes. Perhaps unsurprisingly, the most common peddler of such misinformation is the law enforcement lobby, which appears to be acting out of a combination of knee-jerk defensiveness and profound ignorance as to qualified immunity reform.
I therefore thought it would be helpful to identify and correct some of the most flagrant misrepresentations of qualified immunity by law enforcement organizations and leaders. The purpose of this catalogue is both to correct the object-level errors on these particular issues, but also to put the public in general, and policy makers in particular, on notice that they should take with a grain of salt any statements about qualified immunity made by the law enforcement lobby. As these examples illustrate, those statements are simply not reliable.
A few caveats before I got into the specifics:
- First, I am certainly not suggesting that all, or even most, members of law enforcement are misrepresenting this issue. To the contrary, several major police organizations, such as the Law Enforcement Action Partnership and National Organization of Black Law Enforcement, have explicitly called upon Congress to eliminate qualified immunity, in part because of their recognition that near-zero accountability actually harms the law-enforcement community itself. Not everyone in law enforcement misrepresents qualified immunity, but almost everyone who misrepresents qualified immunity is part of law enforcement.
- Second, I am not suggesting that all of these statements were made in bad faith. Some may have been intended to deceive the public, but many appear to be the product of genuine ignorance on the part of the law enforcement lobby.
- Third, I am not here discussing policy arguments in support of qualified immunity that I find misguided or unavailing, such as the idea that qualified immunity is needed to deter frivolous litigation. I already discussed such arguments in my previous post on "The Most Common Defenses of Qualified Immunity, and Why They’re Wrong." In this post, I am only discussing blatant, factual misrepresentations about what qualified immunity actually is and how it works.
With those qualifications in mind, let's dive in. Here are three basic facts about what qualified immunity actually is, and the many statements by law enforcement officials that get them wrong.
I. Qualified immunity does not protect against criminal prosecution.
Qualified immunity is a judicial doctrine that shields public officials from civil liability (i.e., money damages), unless their actions violated "clearly established law." Mullenix v. Luna, 577 U.S. 7, 11 (2015). It has nothing to do with criminal liability and offers no protection for police officers facing criminal prosecution. Yet a major law-enforcement organization has repeatedly made the erroneous assertion that eliminating qualified immunity would open up police officers to increased criminal prosecution.
The National Association of Police Organizations ("NAPO") is a coalition of police unions and associations that represents more than 1,000 police units and associations and over 241,000 individual officers. In June 2020, NAPO submitted a letter to Congress to explain their opposition to the George Floyd Justice in Policing Act, which would eliminate qualified immunity for law enforcement officials. The letter said the following (emphases added):
With the change to qualified immunity, an officer can go to prison for an unintentional act that unknowingly broke an unknown law. We believe in holding officers accountable for their actions, but the consequence of this would be making criminals out of decent cops enforcing the laws in good faith.
This letter was written and signed by William F. Johnson, NAPO's Executive Director and General Counsel. Mr. Johnson is a former prosecutor, and he is responsible for writing and filing NAPO's amicus briefs in appellate courts. It beggars belief to think that he is unaware that qualified immunity is a civil doctrine, not a bar to criminal prosecution.
Mr. Johnson was also quoted in a Washington Times article as saying (emphasis added):
You’ve got federal lawmakers proposing a federal law that says that even when the federal law is so unclear as to be unknowable by any reasonable officer, that officer can still go to prison for an unintentional act that unknowingly broke an unknown law.
This is just astounding. One of the largest police organizations in the country is opposing qualified immunity reform based on the clearly erroneous assertion that the doctrine has anything to do with criminal prosecution.
II. Qualified immunity shields police officers who violate people's constitutional rights, unless those rights were "clearly established"; it is not limited to reasonable officers following the law or department rules.
The doctrine of qualified immunity only matters when a public official has, in fact, violated someone's federally protected rights. If a police officer hasn't committed any constitutional violation in the first place, then they don't need qualified immunity, because they haven't broken the law at all. Thus, the doctrine only does work in the space where a constitutional right has been violated, but a court determines this right was not "clearly established" (which generally requires a prior case with functionally identical facts). See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (describing the "two-step sequence" where a court must first decide whether the facts alleged "make out a violation of a constitutional right," and if so, then decide "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct").
But many police organizations and law enforcement officials have made the erroneous assertion that qualified immunity only protects officers who act "reasonably," or officers who haven't violated the law at all. This is not just a mistake -- it is, essentially, the exact opposite of what qualified immunity was intended to do.
The Boston Police Patrolman's Association ("BPPA") is a police union that represents Boston police officers. In response to proposed policing reform in the Massachusetts legislature, the BPPA made the following statement in July 2020 (emphases added):
To be clear, Qualified Immunity is a bedrock protection extended to all public employees. Not just police officers. It does not protect bad cops. In fact, it only protects police officers who act reasonably and within the rules and regulations of their respective departments.
The BPPA is correct that qualified immunity applies to all public officials, but the rest of this statement is nonsense. The claim that qualified immunity only applies when officers "act reasonably and within the rules and regulations of their respective departments" is a pure invention, directly at odds with actual case law.
For example, in a Sixth Circuit decision called Latits v. Phillips, the court granted immunity to a police officer who ran a suspect off the road with his car, then ran up to the driver's window and shot him three times, killing him. The court first held that this officer did, in fact, violate Mr. Latits' Fourth Amendment rights, noting in particular that "although police procedures do not set the bounds of the Fourth Amendment, we consider it relevant that Officer Phillips repeatedly violated police procedures in both ramming Latits and running up to his car." Nevertheless, the court still granted immunity to Phillips, because previous Sixth Circuit cases "did not involve many of the key facts in this case, such as car chases on open roads and collisions between the suspect and police cars." In other words, the fact that Phillips was violating department policy was irrelevant to the qualified immunity question; all that mattered is that the specific facts of this case were somewhat different from the facts of prior cases.
Moreover, while "bad cops" is obviously a subjective term, I'll just add that there's nothing like an exception to qualified immunity for "bad cops." For example, in Jessop v. City of Fresno, the Ninth Circuit granted immunity to police officers alleged to have stolen over $225,000 in cash and rare coins while executing a search warrant. The court said that while "the theft [of] personal property by police officers sworn to uphold the law" may be "morally wrong," the officers could not be sued for the theft because the Ninth Circuit had never specifically decided "whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment." Officers who abuse their authority to steal money from citizens would presumably meet anyone's definition of "bad cops," but the obvious wrongfulness of their actions was, again, irrelevant to the qualified immunity question -- all that mattered was that the Ninth Circuit had never faced this exact scenario before.
The Indiana State Police Association ("ISPA"), an association of Indiana state troopers, has made similar misrepresentations. In response to Senator Mike Braun's "Reforming Qualified Immunity Act" (which I discussed in detail here), the ISPA put out a statement in opposition to this bill, which said the following (emphases added):
While there is no doubt that bad actors have brought this issue to the forefront, we believe that qualified immunity serves to protect all police officers legitimately performing their duties, and it allows the public to recover damages in cases where an officer has violated the person's rights.
Again, this is not just wrong; it is basically the exact opposite of what qualified immunity actually does. To reiterate what I said above, qualified immunity only matters when a public official has violated someone's constitutional rights, but where a court finds that right was not "clearly established." Police officers who are "legitimately performing their duties" -- i.e., acting lawfully -- do not need qualified immunity because, by definition, they're not violating anyone's rights in the first place. And with respect to recovering damages, the entire point of qualified immunity is to allows courts to say "yes, your rights were violated, but the right wasn't 'clearly established,' so you can't get damages." That's exactly what happened in the Latits case I mentioned above, and too many other cases to count.
The ISPA further conflates the standards for qualified immunity (i.e., the "clearly established law" test) with the substantive constitutional standard that determines whether police have violated the Fourth Amendment in the first place. They said the following in their statement:
[Qualified immunity] allows police officers to perform their duties, to the best of their knowledge and ability, without constant fear of having to defend themselves from frivolous lawsuits. Officers are judged from the perspective of a reasonable officer, given the same set of circumstances, not from 20/20 hindsight. Without qualified immunity, policing presents too much personal risk for officers and their families.
The ISPA is clearly suggesting that this protection from "20/20 hindsight" is a product of qualified immunity. But that's incorrect. Indeed, the ISPA is quoting nearly word-for-word from a Supreme Court case that has nothing to do with qualified immunity, but rather sets out an "objective reasonableness" standard for excessive force claims under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 396 (1989) ("The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.").
In other words, police don't violate the Fourth Amendment just because they make the "wrong call." Our constitutional standards for Fourth Amendment violations already reflect that police will sometimes arrest people who turn out to be innocent, or use force that turned out to be unnecessary. It is only when officers act "objectively unreasonably" that they have committed a constitutional violation at all; qualified immunity therefore acts a kind of double counting of this deference. If we were to eliminate the doctrine tomorrow, reasonable officers would still be protected from "20/20 hindsight," because (contra the ISPA's statement) that protection doesn't come from qualified immunity in the first place.
Jeffrey Rosen, Deputy Attorney General of the Unites States, recently made similar misrepresentations in an op-ed for the New York Post opposing qualified immunity reform. Mr. Rosen said the following (emphases added):
Qualified immunity is a legal doctrine that prevents law-enforcement officers and other officials from being personally subjected to civil lawsuits when they have acted lawfully and haven’t violated clearly established rights. . . . Officers should be — and are — held accountable when they violate the law. They shouldn’t also have to worry about being personally sued for doing their jobs, when they follow the law.
At the risk of repeating myself, qualified immunity is not limited to officers who have "acted lawfully." The entire point of the doctrine is to protect officers who have broken the law, but where they violated rights that were not "clearly established." As the Deputy Attorney General and a former adjunct law professor at Georgetown, Mr. Rosen surely knows better.
Finally, let's look at a recent op-ed by Timothy C. Carter, Sheriff of Shenandoah County, Virginia and president of the Virginia Sheriffs' Association. In response to a proposal in the Virginia legislature to reform qualified immunity, Sheriff Carter said the following:
The proponents of the bill — primarily trial lawyers — claim that qualified immunity allows police officers to escape responsibility for misconduct, and it denies justice to those who are injured by police misconduct. They claim that qualified immunity needs to be repealed so that there will be accountability and "justice" for police misconduct. To put it bluntly, those claims are lies.
Whether or not qualified immunity "needs to be repealed" as a policy matter, the first sentence here is just an accurate description of what qualified immunity actually is. So, the claim is not a "lie." Sheriff Carter also says the following toward the end of his article:
In short, qualified immunity simply doesn't do what the 'reformers' claim it does — it doesn’t protect wrongdoers, and it doesn’t deny justice to anyone who is entitled to it.
Again, this is just untrue. The very nature of qualified immunity is to deny compensation to victims whose rights were violated, but where a court finds those rights weren't "clearly established." And as I discussed above in reference to the Jessop decision (which granted immunity to officers alleged to have stolen over $225,000 from a suspect), the doctrine does protect "wrongdoers," by any plausible definition of the term.
III. Qualified immunity is a judicial creation, not a legislative decision.
This final kind of misrepresentation isn't quite as serious as those discussed above, but it's still an important issue to clarify. The doctrine of qualified immunity applies to civil rights suits brought under 42 U.S.C. § 1983. But this statute, which was originally passed in 1871, says nothing about any immunity, qualified or otherwise. It simply provides that any state actor who violates someone's federally protected rights "shall be liable to the party injured." Qualified immunity is a judicial doctrine that was essentially grafted onto this statute, and the "clearly established law" standard, which is the key feature of modern qualified immunity doctrine, wasn't created by the Supreme Court until 1982, in a case called Harlow v. Fitzgerald. Whether or not you think the doctrine has a proper legal basis, it is clearly a judicial creation, not reflected in any federal statute.
But the Major Cities Chiefs Association ("MCCA") misrepresents this obvious point in a way I've never seen before. The MCCA is made up of the police chiefs and sheriffs of the sixty-nine largest law enforcement agencies in the United States and nine largest in Canada. In June 2020, the MCCA put out the following "Law Enforcement Reform Policy Statement," which included the following about qualified immunity (emphasis added):
Qualified immunity protections are extended to a wide range of government employees, not just law enforcement. Qualified immunity does not prevent officers who engage in misconduct from being convicted for criminal offenses.
The MCCA: • Strongly opposes repealing or amending the qualified immunity statute.
This is the entirety of what the MCCA had to say about qualified immunity, and the first two sentences are accurate. But in their official recommendation, they refer to "the qualified immunity statute." But there is no qualified immunity statute. Indeed, the legal argument against qualified immunity is premised entirely on this point -- the relevant statute says nothing about qualified immunity, and the background common law against which the statute was passed didn't include anything like the "clearly established law" standard. Congress didn't create qualified immunity when it passed Section 1983, and it has never adopted the Supreme Court's qualified immunity doctrine by statute.
This may seem like technical nitpicking, and as I said above, I acknowledge this misrepresentation isn't as concerning as the others. But it still matters, because it erroneously suggests that qualified immunity is somehow the result of a previous legislative decision, rather than a doctrine created by the courts and imposed onto a civil rights statute that says nothing about the subject. More generally, the fact that the MCCA, in its official policy recommendation, made such an elementary mistake suggests that they likely don't have a strong understanding of what qualified immunity actually is or how it works.
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In conclusion, a troubling proportion of the statements that the law enforcement lobby makes in support of qualified immunity are not just misguided or misleading, but outright false. Whether these misrepresentations are the product of bad faith or genuine ignorance, they show that the law enforcement lobby isn't a reliable source of information on qualified immunity. As members of Congress and state legislatures continue to debate policing reform, they ought to be highly skeptical of any such sources.