The doctrine of qualified immunity has become a subject of much debate following the unlawful killing George Floyd. This article summarizes the legal rule of qualified immunity, how it protects police officers and some suggested alternatives
Qualified Immunity (QI) is a judge made rule that severely limits those instances where an individual officer can be sued for harm caused by his or her law enforcement actions. QI protects the financial resources of an individual police officer who is sued in Civil court for money damages for allegedly depriving a person who came into contact with the officer, of his or her constitutional rights. Under QI an officer is presumed to have no liability, in other words no financial responsibility to a person harmed by the contact with law enforcement. An officer is immune from a civil. lawsuit UNLESS a) the officer violated a clearly known constitutional rights and 2) and a reasonable officer knew or should have known he was violating a known clearly established constitutional right. Thus, by design QI offers strong and broad protection to an officer of the financial effects of legal fees, court costs and the financial burden of a civil court money judgment. United States Supreme Court Decisions describe the extensive scope of QI as ” protecting all but the plainly incompetent or those who knowingly violate the law” (Kisela v Hughes 138 S. Ct. 1148, U.S 2018). Thus, police misconduct victims face a steep uphill climb to pursue a lawsuit against an individual police officer.
To defeat QI the police misconduct plaintiff must show that a constitutional right, such as the 4th Amendment right to be free of excessive police force was violated by law enforcement. Secondly, the citizen must show the constitutional right was clearly established and therefore known or should have been known to the officer. In deciding whether the right was clearly established, a judge will review the important facts known to the officer in a particular case and /or what should have been known and compare those facts to the facts contained in prior legal decisions ( case law) in police misconduct cases involving constitutional rights. The officer loses QI only if his conduct is identical to or very similar to police conduct that has been previously decided to be violating a clearly established constitutional right. In other words, legal precedent acts the measuring rod in a given case involving QI. As such, if the legal precedent does not give clear warning to the reasonable officer that his conduct has been deemed violative of a constitutional right, the officer does not lose the broad, but not absolute. protection of QI. QI is lost only if the citizen’s lawyer shows that the actions taken by that defendant officer in the case, has been previously held to be unconstitutional when committed by other officers.
To overcome QI, the lawyer for the police misconduct victim must marshal all key facts and documents BEFORE the police misconduct case is filed in court. The lawyer should obtain independent eyewitness statements, all relevant police reports and the court file if criminal charges were filed against the police misconduct victim. The attorney must then be very well versed in legal precedent in the field of police misconduct. QI is usually decided in the very early stages of a civil police misconduct case. Often, the police officer will not have to give deposition testimony before QI is decided. If an officer wins on QI, that officer no longer faces the threat of financial harm for acts taken in the course and scope of the officer’s law enforcement responsibilities.
In the aftermath of the murder of George Floyd, many are calling for reform to QI. Some have suggested abolishing it all together. Some call for a loosening of the rule requiring identical or nearly identical legal precedent of a violation of a clearly established right. I invite the suggestions of reform by readers of this article.
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