Commentary: ‘Qualified immunity’ puts police above the law

By Noah Feldman / Bloomberg Opinion

The Justice in Policing Act of 2020 introduced by House Democrats this week contains a provision that is likely to become the subject of lively debate: The provision effectively eliminates the legal defense known as “qualified immunity” for state and local police who get sued for violating citizens’ civil rights.

The proposal is extremely important from a symbolic perspective. The U.S. Supreme Court has used the doctrine in recent years to send a message to lower courts that it wants less litigation against police.

Now is the time for Congress to send the opposite message. Lawmakers should make it clear that police should not be “immune” from responsibility when they break the Constitution.

The doctrine of qualified immunity muddies the principle of equal justice under law. Nor is qualified immunity contained in the text of any federal statute. It was invented by the Supreme Court in a series of cases, most importantly the 1982 decision of Harlow v. Fitzgerald.

The basic idea of the doctrine is to create an exception to the important civil rights statute known as Section 1983. That law, whose origins date back to 1871, says that a state or local government official who violates a citizen’s constitutional rights “under color of law” can be sued in federal court and held liable for monetary damages.

Essentially, qualified immunity says that you can only win a suit under Section 1983 if you can prove that the official’s conduct violated clearly established federal law. To prove that, you generally need a judicial precedent describing their specific conduct as unlawful. As the Supreme Court itself has said, the doctrine protects “all but the plainly incompetent or those who knowingly violate the law.”

And so a Section 1983 lawsuit against Derek Chauvin, the officer who is charged with murdering George Floyd, would have to show that clearly established federal law prohibited the placing of an officer’s knee on an arrestee’s neck.

The new proposed law would eliminate that defense with respect to state and local police. It amends Section 1983 to say that there can be no defense that “the rights, privileges, or immunities secured by the Constitution and laws” weren’t clear at the time of the incident. Nor can a defendant argue that he or she “could not reasonably have been expected to know whether his or her conduct was unlawful.”

The proposed law also eliminates an older version of police protection by blocking any defense that “the defendant acted in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful.”

The upshot would be that a lawsuit against a state or local police officer could succeed if it could be shown that the officer violated the citizen’s constitutional rights; even if those rights could not be shown to be clearly established under federal law.

It’s unclear whether eliminating the qualified immunity defense would lead to more, or more successful, lawsuits against police. Empirical evidence gathered and analyzed by Professor Joanna Schwartz of UCLA suggests the qualified immunity defense pretty rarely leads to the dismissal of lawsuits; although as she readily acknowledges, it may be that fewer lawsuits are brought in the first place because of the existence of the doctrine.

It’s also worth keeping in mind that nearly all police are indemnified or insured against actually having to pay the monetary damages themselves. The real costs of successful Section 1983 suits are borne by the police officers’ government employers.

But the uncertainty about these consequences should be treated as secondary to the symbolic message of eliminating qualified immunity.

One of the explicit and implicit demands of protesters on the streets today is that the law of the land be applied equally to all. The existence of the doctrine of qualified immunity sends the message that police should be protected from being sued under circumstances in which they have actually violated citizens’ civil rights.

That idea is inimical to the rule of law. If you’ve broken the Constitution, you should be held accountable; even if it can’t be shown in highly specific, technical terms that the meaning of the Constitution was clearly and already established.

There are other critiques of qualified immunity, including the textualist argument that it doesn’t appear in the statute. Those are fine for arguing that the Supreme Court should revise or eliminate the doctrine. And indeed, there are currently a number of qualified immunity cases that the Supreme Court could choose to hear.

But the best result would be for Congress to clarify that Section 1983 does not include qualified immunity; and strike a blow for equal justice under the law.

Noah Feldman is a Bloomberg Opinion columnist, host of the podcast “Deep Background” and a professor of law at Harvard University.