TOWARD QUALIFIED IMMUNITY REFORM

BY: Yeiji Seo

Yeiji is a sophomore in the College at Georgetown University studying economics. She is currently a line editor for the Georgetown University Undergraduate Law Review.


Calls to eliminate “qualified immunity” for law enforcement officers have intensified with the House of Representatives passing the George Floyd Justice in Policing Act of 2021 on March 3.[1] The House similarly passed an earlier version of the bill in June 2020, but the act failed to pass the Republican-controlled Senate at the time.[2] Democratic lawmakers expect the legislation will reduce police violence against people of color by increasing measures to hold police accountable.[3] Rep. Ilhan Omar, D-Minn., described the continued trauma experienced in the Minneapolis area following George Floyd’s death in May 2020: “Time and time again we have witnessed the people who are sworn to protect our communities abuse their power.”[4]

Notably, the Act includes a provision to amend Section 1979 of the Revised Statutes of the U.S. and essentially prevent local and federal law enforcement officers from receiving qualified immunity.[5] As applied today, qualified immunity protects government officials from trials involving allegations that an official violated a plaintiff’s rights; the protection, however, does not apply to violations of “‘clearly established’ statutory or constitutional rights.”[6] Section 102 of the bill, which concerns only law enforcement officers, proposes adding that “it shall not be a defense…in any action brought under [Section 1979]…that ‘(1) the defendant was acting in good faith…or (2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established.’”[7] Critics of the bill have questioned its potential effectiveness, highlighting the limited control the federal government has over state and local policing. Local developments addressing qualified immunity, however, have already begun to occur independently of federal legislation. On March 29, the New York City Council voted to end the practice of qualified immunity for New York Police Department (NYPD) officers, who compose the largest police force in the country.[8] Yet challenges against the role of qualified immunity in constitutional litigation are by no means a recent trend—they reflect a long-standing debate surrounding whether the applications of qualified immunity have fulfilled their intended role.

The Supreme Court first articulated the doctrine of qualified immunity in the 1967 case of Pierson v. Ray as a response to 42 U.S.C. § 1983, a statute that imposes civil liability on “every person” who violates another’s federal rights.[9] In this case, involving a Section 1983 suit against police officers, the Court argued that qualified immunity was necessary to shield law enforcement officials from financial burdens when acting in “good faith.”[10] Chief Justice Earl Warren delivered the majority opinion, stating that “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”[11] Thus, qualified immunity emerged as protection to encourage police officers to perform their duties and exercise their discretion without fearing financial consequences.[12]

Fifteen years later, this original intent underlying the qualified immunity doctrine evolved in Harlow v. Fitzgerald.[13] In particular, the Court established provisions for evaluating qualified immunity, clarifying that law enforcement officials would be liable for civil damages only if a violated constitutional right was “clearly established” at the time of the violation.[14] The Court justified this threshold immunity question by maintaining that an official could not be expected to refrain from conduct because of its unlawfulness if the action had not been identified as unlawful or understood as unlawful by the official.[15] Along with the potential financial burdens mentioned in Pierson, the majority opinion in Harlow emphasized the additional costs that arise for society as a whole from frequent claims against both the innocent and guilty in the absence of such qualified immunizations.

 Justice Lewis Powell highlighted “the diversion of official energy from pressing public issues… deterrence of able citizens from acceptance of public office… and [dampening of ardor] of public officials in the unflinching discharge of their duties” as social costs qualified immunity could combat.[16] Under the test established by Harlow, however, a law enforcement officer could avoid not only financial liabilities but also participation in discovery and trial even after violating an individual’s federal rights—with the rationale that the acknowledged, violated right was not clearly established.[17]

The subsequent interpretations of what constituted clearly established law and the resulting applications of qualified immunity proved to perhaps detract from the original purpose that led to its creation. Dissenting from a denial of certiorari in 2020 for the case Baxter v. Bracey, Justice Clarence Thomas reaffirmed his doubts about qualified immunity jurisprudence, asserting that “[l]eading treatises from the second half of the 19th century and case law until the 1980s contain no support for this ‘clearly established law’ test.”[18] He thus found no basis for the applied inquiry into clearly established law, citing that “the Court adopted the test not because of ‘general principles of tort immunities and defenses,’ but because of a ‘balancing of competing values’ about litigation costs and efficiency [in Harlow]…”[19] In 2014, Alexander Baxter, a homeless man, burglarized a house and fled to hide after perceiving a helicopter looking for him.[20] Once a canine unit arrived and discovered Baxter, he surrendered. Although his arms were raised to indicate surrender, Officer Spencer Harris released his dog—resulting in Baxter suffering a bite to his arm.[21] Baxter sued Officers Harris and Brad Bracey claiming excessive use of force, but the appellate court granted the officers qualified immunity on the basis that “Baxter [did] not point us to any case law suggesting that raising his hands, on its own, is enough to put Harris on notice that a canine apprehension was unlawful in these circumstances.”[22] They concluded that Harris did not violate clearly established law, and he was entitled to immunity.

The House vote for the George Floyd Justice in Policing Act passed with a 220-212 vote, mostly along party lines.[23] Although the Senate is no longer Republican-controlled, at least 10 Republican members must vote in favor of the bill with the Senate Democrats for it to pass. While this “landmark police reform bill,” as described and supported by President Biden, may fail to survive Senate consideration, these proceedings encourage the rethinking of a doctrine that has allowed and will continue to allow instances of police misconduct to go unpunished.[24]


[1] George Floyd Justice in Policing Act of 2021, H.R. 1280, 117th Cong. (2021).

[2] George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong. (2020).

[3] Chloee Weiner, House Approves Police Reform Named After George Floyd, NPR (March 3, 2021), https://www.npr.org/2021/03/03/973111306/house-approves-police-reform-bill-named-after-george-floyd.

[4] Id.

[5] H.R. 1280, 117th Cong. (2021).

[6] Legal Information Institute, Qualified immunity, Cornell Law School, https://www.law.cornell.edu/wex/qualified_immunity.

[7] H.R. 1280, 117th Cong. (2021).

[8] Luke Barr, New York City moves to end qualified immunity, making it the 1st city in US to do so, ABC News (March 29, 2021), https://abcnews.go.com/Politics/york-city-moves-end-qualified-immunity-making-1st/story?id=76752098.

[9] 42 U.S.C. § 1983.

[10] Pierson v. Ray, 367 U.S. 547, 555 (1967).

[11] Id. at 550.

[12] Id. at 554.

[13] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[14] Id. at 818.

[15] Id. at 819.

[16] Id. at 814.

[17] Id. at 816.

[18] Baxter v. Bracey, 590 U.S. 1, 4 (2020).

[19] Id.

[20] Baxter v. Bracey, 751 Fed. App’x 869, 869-873 (6th Cir. 2018) (App. 1a).

[21] Id.

[22] Id.

[23] Weiner, supra note 3.

[24] Id.

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