DIVERSITY CORNER
Qualified Immunity and Accountable Policing
BRYAN ANDERSON
“ Qualified immunity ” is sometimes loosely referred to in media and discussions as a reason why police officers avoid accountability for using excessive force that harms or kills people , without explanation of what qualified immunity means . Here is some information about what qualified immunity is and is not , some policy considerations and how the doctrine can be changed .
Qualified immunity doctrine when applied can bar civil claims against police officers for excessive use of force
Victims harmed by police excessive use of force can file a civil action against police officers under 42 U . S . C . § 1983 . Section 1983 provides that every person who under color of state law subjects someone to deprivation of federal rights shall be liable to the party injured in an action at law , suit in equity , or other proper proceeding . Because excessive force violates federal rights such as fourth amendment protections from unreasonable search and seizure , police officers can be held civilly liable for the damages that they cause . Police officers and other state-authorized officials have qualified individual immunity from 42 U . S . C . § 1983 claims . Qualified immunity is founded on decisions made by the U . S . Supreme Court . The Court stated the doctrine succinctly in Pearson v . Callahan , 555 U . S . 223 ( 2009 ):
[ T ] he doctrine of qualified immunity protects government officials “ from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known .” Pearson at 231 .
When found applicable , the doctrine of qualified immunity bars victims ’ claims against individual police officers outright , terminating an already narrow legal path for enforcing an injured victim ’ s rights .
Qualified Immunity Policy and Legal Criticisms
The U . S . Supreme Court stated its policy reasons for the qualified immunity doctrine in the Pearson case : [ Q ] ualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment , distraction , and liability when they perform their duties reasonably .
However , a key problem with qualified immunity is ambiguity where it will and will not apply . The Pearson requirement of pleading a violation of “ clearly established statutory or constitutional rights of which a reasonable person would have known ” leads to extraordinary legal hair-splitting and uncertainty .
Consider two actual cases involving people surrendering to police officers . One person surrendered lying on the ground with arms extended . Another person surrendered sitting on the ground with arms over his head . In each an officer ordered a dog to attack . The first case was found to state a claim for constitutional violation . The second claim was barred because "... Baxter [ plaintiff ] does not point us to any case law suggesting that raising his hands , on its own , is enough to put Harris [ police officer defendant ] on notice that a canine apprehension was unlawful in these circumstances ." Baxter v . Bracey ( 6th Cir . 2018 ) ( unpublished opinion at p . 6 .)
U . S . Supreme Court review was denied in the Baxter case earlier this year . Justice Clarence Thomas expressed his " strong doubts about [ the Supreme Court ' s ] § 1983 qualified immunity doctrine ." Baxter v .
Bracey , 140 S . Ct . 1862 , 1865 ( 2020 ) ( Thomas , J ., dissenting from denial of certiorari ); see also id . at 1862 , 1864 ( recognizing that "[ t ] he text of § 1983 makes no mention of defenses or immunities [,]" and finding " no basis for the objective inquiry into clearly established law that our modern cases prescribe ").
How the qualified immunity doctrine can be changed
The Supreme Court has authority to end or to change the doctrine of qualified immunity that it created . Congress also has the authority to end or change the doctrine . Congress can amend 42 U . S . C . § 1983 to remove qualified immunity as a defense for police officers who engage in civil rights violations . For example , the House of Representatives recently proposed H . R . 7085 ( the Ending Qualified Immunity Act ) which bill states an intent to eliminate the doctrine , restore the original intent of Section , and ensure that people can pursue a remedy for harm caused by unlawful official conduct .
Other criminal , civil and administrative remedies should be considered in police accountability community discussions and actions
Other legal avenues can be used to address police excessive force , but do not relate to the U . S . Supreme Court ’ s doctrine of qualified immunity :
• Police officers are subject to federal and state criminal liability for excessive force used to injure or kill someone .
• Police officers can be held liable for state tort claims such as battery , wrongful death and state constitutional violations .
• Agencies employing police officers can be held liable for poor hiring , training or supervision of a police officer that results in harm .
• Police officers can be disciplined or decertified for excessive use of force violating departmental procedures or state certification requirements .
Each of these has its own complex web of defenses and liability limitations , which can be changed through legislation , judicial decisions and administrative processes . Ultimately police accountability is most susceptible to changes through the electoral process - through citizens electing officials like governors , legislators , judges , sheriffs , prosecutors and municipal officials demonstrably committed to improving police accountability .
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