One of life’s mysteries is how critics of the criminal justice system came to view qualified immunity as the biggest obstacle to holding bad police accountable. It actually doesn’t matter at all in the typical lawsuit over police abuse. Marc Levin is an advocate of criminal justice reform, who looked at how qualified immunity actually works. He found qualified immunity didn’t matter that much, as he explained in the Washington Post. It has no effect on criminal prosecutions of thuggish police officers like Derek Chauvin, who killed George Floyd, because the doctrine of qualified immunity isn’t a defense to criminal prosecutions. And it isn’t even raised in the typical police-abuse lawsuit. It didn’t stop George Floyd’s family from receiving a legal settlement of $27 million. As the courts have explained, only individual government officials can raise the defense of qualified immunity to being sued — not local governments — and then only when they have not committed a violation of “clearly established” law.
Yet, the New Mexico ACLU describes qualified immunity as a “blank check” for police misconduct. A Democratic broadcaster ran a segment titled, “Qualified Immunity: Cops’ License To Kill.”
These alarmist claims are quite wrong. As Marc Levin explained in the Washington Post:
Qualified immunity does protect [some] officers from being sued, but it has no bearing on criminal prosecution……………
The doctrine is not applied in civil suits all that often. An extensive study of more than 1,000 cases filed against law enforcement agencies in five judicial districts found that qualified immunity was raised in 37.6 percent of eligible lawsuits. Of those, only 30 percent were dismissed solely on the grounds of qualified immunity. While it is conceivable that … attorneys turn down some share of cases because they think a qualified-immunity motion would make the case vulnerable to dismissal, a survey of lawyers found that they do not routinely decline cases for that reason.
In short, qualified immunity results in the dismissal of only one-ninth of lawsuits against the police.
Police unions like qualified immunity, but for rank-and-file cops, it is not their top priority. When my brother discussed the risks of policing with a distant relative who is a cop in Hawaii, qualified immunity didn’t even come up in the discussion. As Levin explained,
surveys of police officers reveal that the threat of litigation is not front of mind in the course of their duties. One study of municipal officers found that for 95 percent of them, the threat of litigation didn’t make their “top 10 thoughts” when on the job, and in another survey just 22 percent of officers said they were cognizant of the threat of being sued during encounters with members of the public. That stands to reason, because damages and legal fees are paid for by their government employers — what’s called indemnification. In fact, one study found that governments indemnified almost all officers, with 99.98 percent of the dollars recovered by plaintiffs in lawsuits paid by governments, even when the officers were fired, disciplined or criminally prosecuted.
Levin’s article in the Washington Post fell on deaf ears — even at the Washington Post itself. Progressive journalists view qualified immunity as a hunting license for police to kill black people, and studies showing otherwise have no impact on them at all. Even if a progressive who has studied the issue tells them that’s wrong, they persist in believing it. After Levin’s article appeared, the Post ran a news article by a reporter with little knowledge of the criminal justice system, which falsely claimed that qualified immunity “makes it virtually impossible to sue police officers for violating a person’s civil rights.”
Progressive “fact-checkers” who lack legal expertise continue to claim that qualified immunity makes lawsuits over police abuse almost impossible, even though qualified immunity is not raised in the typical police abuse case. For example, Snopes falsely claimed that this immunity blocks lawsuits over a constitutional violation, unless a court has previously found a violation in “nearly identical” circumstances. It also falsely claimed that qualified immunity would likely hinder George Floyd’s family in winning a wrongful death lawsuit over his killing.
Neither of these claims was true. Qualified immunity does not apply when a government official commits a violation of “clearly established” constitutional rights. That includes violations that are so outrageous or unique that no prior court ruling could ever have dealt with “nearly identical” facts. Such violations are nevertheless deemed “clearly established” and grounds for denying qualified immunity. As the Supreme Court explained in United States v. Lanier (1997), “The easiest cases don’t even arise. There has never been…a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.’”
The fact that a cop has chosen to abuse you in a novel way doesn’t mean courts will grant him qualified immunity, and it doesn’t mean it doesn’t count as “excessive use of force.” For example, the fact that cops previously violated the Constitution by beating or shooting the people they arrested didn’t keep the Ninth Circuit from denying qualified immunity to cops who put pepper spray in people’s eyes. The fact that police chose a novel way to use excessive force didn’t prevent the judges from finding it was still a violation of “clearly established” constitutional rights. (See Headwaters Forest Defense v. Cty. of Humboldt (2002)).
Qualified immunity doesn’t just apply to police officers. It applies to all individual government officials. It is sometimes used to prevent professors and students at state universities from suing for compensation for unconstitutional speech restrictions, as Samantha Harris of the Foundation for Individual Rights in Education has noted. Courts sometimes misapply the doctrine to block lawsuits for compensation, even if it is rather obvious that the student’s speech was protected and should not have led to discipline, simply because the Supreme Court and federal appeals court for the region in which the student is suing have not previously addressed a case involving strikingly similar facts.
Qualified immunity is a much more significant barrier for college professors seeking justice, than it is for victims of police abuse.
State universities are arms of the state, and thus shielded by sovereign immunity, meaning they can’t be ordered to pay monetary damages for violating the First Amendment. Only individual campus officials, who do not have sovereign immunity, can be sued for money to compensate victims of First Amendment violations.
Police departments are arms of local governments, not the state. Local governments are not shielded by sovereign immunity or the Eleventh Amendment from being ordered to pay monetary damages for violating people’s constitutional rights. Even when qualified immunity bars a lawsuit against an individual cop, the victim can still sue the police department for the cop’s abusive behavior, if the abuse victim shows that the police department had a “policy or custom” that led to the abuse (like a reckless failure to train cops against abuse, or to remove bad cops). So an abuse victim can often sue a local police department, under the Supreme Court’s ruling in Monell v. Department of Social Services (1978), which allows local governments (like cities and police departments) to be sued for money when they violate civil liberties.
Qualified immunity can leave a college student or professor with no compensation at all for a constitutional violation — even though a police abuse victim could collect millions from a police department despite a cop being granted qualified immunity. A federal appeals court tossed out the lawsuit of a student expelled for his off-campus tweets, giving the college officials qualified immunity.
If qualified immunity is abolished, it should be abolished for all government officials, not just police officers. But the criminal-justice reform legislation proposed by Democrats, such as the George Floyd Act, only abolishes qualified immunity for police officers and prison guards, not government bureaucrats or college administrators. That’s unfair, and discriminates against cops and prison guards. If anything, qualified immunity should be abolished for college administrators, even if it is not abolished for cops. Qualified immunity is often justified by the need for cops to make split-second decisions in confronting potentially dangerous people, as a way of protecting them from being sued for judgment calls that were reasonable but look bad with 20-20 hindsight. That rationale for immunity does not apply to college administrators, who don’t have to make split-second decisions, and can consult the university general counsel’s office before they fire a professor or expel a student.
