Congressional and State Efforts to Reform Doctrine of Qualified Immunity Underway

Mark Miller

The killing of George Floyd in Minneapolis over Memorial Day Weekend sparked protests and nationwide discussions of race, police abuse and criminal justice reform — a discussion that has yet to abate. His tragic death also renewed focus on a legal doctrine called “qualified immunity” that government bureaucrats and regulatory officers have used as a legal defense to violate people’s rights.

For decades, qualified immunity has enabled government officials ranging from irresponsible tax collectors to violent police officers to violate people’s rights, often with little to no consequences. What is qualified immunity, and why is it so damaging? A brief history lesson explains.

During Reconstruction following the Civil War, Congress created a simple law that made it easy for all Americans to demand the government follow the Constitution and the laws of the land. That law, known as 42 USC Section 1983, “Civil Action for Deprivation of Rights,” says that every government official who, under color of law (that is, while doing their government job), violates someone’s constitutional or statutory rights shall be liable (must pay damages) to the person who suffers that injury. In other words, if a government worker violates someone’s constitutional rights, they must pay that person for the damage caused.

This law was a response to the widespread harassment of freed slaves, and Congress was making it clear that it would no longer allow such harassment in the United States. Section 1983 effectively enforced the promises set out in the Bill of Rights and Reconstruction Amendments — they were no longer just empty words on paper.

Despite the law’s simplicity and power, the Supreme Court created and extended the doctrine of qualified immunity over the last half-century, undermining Section 1983. The doctrine holds that government officials, including law enforcement officers, can be sued successfully for damages in court for violating someone’s rights only if the constitutional violation is “clearly established.” That means there needs to be a prior precedent with virtually the same facts. In a world where government actors find myriad ways to violate your rights, finding a case exactly alike is not usually easy. And if there is no similar precedent, then your case is thrown out of court.

In practical terms, qualified immunity means that in almost all cases, if a government agent violates someone’s property rights, freedom of speech, or even physically injures them, the government agent cannot be held liable for damages (that is, money).

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NM could jettison qualified immunity for police, government employees

The defense for public officials and employees of qualified immunity was created by the U.S. Supreme Court over the course of many decisions. It is now seen as a barrier to holding police officers accountable when they use excessive force. Even with qualified immunity used as a defense, civil rights and wrongful death lawsuits in police use-of-force cases in New Mexico courts have cost state and local governments millions of dollars over the last 20 years. Now the state Legislature is considering a state civil rights law that would specifically prohibit the defense of qualified immunity. The New Mexico Legislature considered taking up the issue during the special session in June but decided instead to create a State Civil Rights Commission to study the issue. Legislators are aware that a state civil rights law abolishing qualified immunity would cover all government employees, not just law enforcement. “It’s complicated,” Rep. Antonio “Moe” Maestas, D-Albuquerque, said. “There are portions of other statutes that may have to be amended to bring them into line with what’s proposed.” Maestas said that is why the recommendations of the commission are important in guiding how the Legislature acts. The commission is required to make a report to the Legislature in mid-November...MORE

States Can Reform Qualified Immunity on their Own

Ilya Somin

The death of George Floyd and resulting nationwide protests against police abuses have focused renewed attention on the legal doctrine of "qualified immunity," which all too often enables law enforcement officials to escape liability for egregious violations of constitutional rights. Unfortunately, the Supreme Court recently refused to take any cases that might overturn or limit the dubious doctrine it itself created. Congress could potentially abolish or limit qualified immunity by adopting new legislation curbing it. But Senate Republicans say that such a move would be a "poison pill" and it's not clear that GOP supporters of reform can gather enough votes to get it through this year.
The Supreme Court, Congress or both might yet revisit this issue in the future. But in the meantime, there is much that state governments can do without waiting for federal action. The vast majority of law enforcement operations—and law enforcement abuses—are conducted by state and local police. State governments can address their misdeeds without waiting for either the Supreme Court or Congress to act.
The state of Colorado recently passed a reform law that is a model of its kind, one that other states would do well to imitate. Jay Schweikert of the Cato Institute has a helpful description of the Colorado law and its advantages:

Colorado Governor Jared Polis has signed into law Senate Bill 20–217 ("SB-217"), otherwise known as the Law Enforcement Integrity and Accountability Act. SB-217 includes a range of major policing reforms… But perhaps most notably, the law ensures that police officers in Colorado will not be able to avoid liability for their misconduct due to the unlawful shield of qualified immunity.
While many are summarizing SB-217 as "ending qualified immunity" in Colorado, what the law formally does is permit individuals to bring claims against police officers who violate their constitutional rights under Colorado law. SB-217 is therefore a kind of "state analogue" to Section 1983, our main federal civil rights statute. Whereas Section 1983 creates a cause of action allowing individuals whose rights are violated under the federal Constitution to bring a lawsuit for damages in federal court, SB-217 allows individuals whose rights are violated under the state constitution to bring a lawsuit for damages in state court.
Colorado, like most states, has a bill of rights that largely mirrors the federal Constitution (and in some ways is even more protective) so this means that SB-217 will cover things like excessive force claims, unlawful arrests, etc. And most importantly, SB-217 specifically provides that "qualified immunity is not a defense to liability pursuant to this section." So, the law does not technically "eliminate qualified immunity," insofar as we're talking about the federal doctrine — if Coloradans bring Section 1983 claims in federal court, those claims will still be subject to qualified immunity. But the law does ensure, at least with respect to police officers, that Coloradans will have a robust alternative remedy to Section 1983 claims for violations of their constitutional rights.
Colorado is not the first state to enact a "state analogue" to Section 1983, but it is the first state to specifically negate the availability of qualified immunity as a defense through legislation. As it turns out, that clarification is crucial, because in nearly all of the other states that have passed similar laws, state courts have incorporated a similar or identical version of federal qualified immunity, even when the relevant statute says nothing about it.

As Schweikert points out, SB-217 doesn't technically eliminate qualified immunity as a defense to lawsuits charging violations of federal constitutional rights. But it effectively achieves the same goal by eliminating it as an obstacle to lawsuits under the state constitution, which provides much the same rights.

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As a judge, I have to follow the Supreme Court. It should fix this mistake.

By James A. Wynn Jr.

James A. Wynn Jr. is a judge on the U.S. Court of Appeals for the 4th Circuit.

 

George Floyd’s unconscionable killing has properly brought renewed attention to the Supreme Court’s doctrine of “qualified immunity,” which shields law enforcement officers from civil lawsuits alleging excessive force. The judge-made law of qualified immunity subverts the Civil Rights Act of 1871, which Congress intended to provide remedies for constitutional violations perpetrated by state officers. Eliminating the defense of qualified immunity would improve our administration of justice and promote the public’s confidence and trust in the integrity of the judicial system.

I am not alone in my concerns about qualified immunity. Commentators — and justices — from across the ideological spectrum rightly contend that this doctrine has wandered far afield from the text of the Civil Rights Act. That landmark statute, enacted during Reconstruction, allows individuals to bring civil actions against state actors — including state and local law enforcement officers — for violating their constitutional rights. But two lines of Supreme Court precedent have rendered qualified immunity an increasingly insurmountable obstacle to individuals seeking legal redress for violations of their constitutional rights.

First, the Supreme Court has ratcheted up the standard a plaintiff must meet to bring a claim by requiring the plaintiff to show that the violation of his or her constitutional rights was “clearly established.” This means a plaintiff must demonstrate that the law enforcement officer’s challenged conduct was virtually identical to the facts of a previous Supreme Court or Court of Appeals decision finding a constitutional violation. The slightest factual variations can render a constitutional right not “clearly established” — meaning that the officer faces no civil liability for the violation.

Second, the Supreme Court has allowed, and even encouraged, lower courts to dismiss cases once they determine that a law enforcement officer’s challenged conduct did not violate a “clearly established” constitutional right — without ever deciding whether the conduct did in fact violate the Constitution. As a consequence, there are few judicial decisions against which to measure whether a law enforcement officer’s conduct amounted to a “clearly established” violation of constitutional rights.

In effect, those who allege that police officers have used excessive force are trapped in a never-ending self-fulfilling prophecy: They cannot sue officers who harm them because the harmful conduct has never been “clearly established” as a constitutional violation in a factually similar case. But because so many cases are dismissed without addressing whether the challenged conduct was in fact a constitutional violation, it is rarely “clearly established” that there was a violation.

This cycle prevents plaintiffs from pursuing their claims, gives officers little guidance on the contours of individuals’ rights and excuses ever more egregious conduct from liability...

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