The killing of George Floyd in Minneapolis over Memorial Day Weekend sparked protests and nationwide discussions of race, police abuse and criminal justice reform — a discussion that has yet to abate. His tragic death also renewed focus on a legal doctrine called “qualified immunity” that government bureaucrats and regulatory officers have used as a legal defense to violate people’s rights.
For decades, qualified immunity has enabled government officials ranging from irresponsible tax collectors to violent police officers to violate people’s rights, often with little to no consequences. What is qualified immunity, and why is it so damaging? A brief history lesson explains.
During Reconstruction following the Civil War, Congress created a simple law that made it easy for all Americans to demand the government follow the Constitution and the laws of the land. That law, known as 42 USC Section 1983, “Civil Action for Deprivation of Rights,” says that every government official who, under color of law (that is, while doing their government job), violates someone’s constitutional or statutory rights shall be liable (must pay damages) to the person who suffers that injury. In other words, if a government worker violates someone’s constitutional rights, they must pay that person for the damage caused.
This law was a response to the widespread harassment of freed slaves, and Congress was making it clear that it would no longer allow such harassment in the United States. Section 1983 effectively enforced the promises set out in the Bill of Rights and Reconstruction Amendments — they were no longer just empty words on paper.
Despite the law’s simplicity and power, the Supreme Court created and extended the doctrine of qualified immunity over the last half-century, undermining Section 1983. The doctrine holds that government officials, including law enforcement officers, can be sued successfully for damages in court for violating someone’s rights only if the constitutional violation is “clearly established.” That means there needs to be a prior precedent with virtually the same facts. In a world where government actors find myriad ways to violate your rights, finding a case exactly alike is not usually easy. And if there is no similar precedent, then your case is thrown out of court.
In practical terms, qualified immunity means that in almost all cases, if a government agent violates someone’s property rights, freedom of speech, or even physically injures them, the government agent cannot be held liable for damages (that is, money).
It was disappointing that the Supreme Court this past term declined to review several cases that would have laid the groundwork to reform if not end qualified immunity. However, two members of Congress have picked up the ball and taken steps to address qualified immunity. Rep. Justin Amash, a Michigan libertarian, and Sen. Mike Braun, an Indiana Republican, have presented welcome legislative proposals to end, or at least reform, qualified immunity. Both of these proposals are steps in a good direction.
Meanwhile, Colorado and Massachusetts legislators have taken steps to eliminate qualified immunity at the state level. It is good to make Colorado and Massachusetts state law more protective of citizens who suffer constitutional violations at the hands of state actors, but their efforts cannot go nearly far enough since the underlying problem is one of federal law. Nevertheless, if more states follow their lead, then perhaps it will motivate Congress to act upon a federal proposal that will fix the qualified immunity doctrine for good.
In a recent documentary, Justice Clarence Thomas explained the importance of just laws: “Laws affect everybody. If you’re poor and you look at people like my grandfather…. I think of when he came home one day and he was very upset. . . .What had happened was he was driving the oil truck, [and] a police officer stopped him ‘for having too many clothes on.’ That’s ridiculous. He had no way of challenging that.”
Although Justice Thomas wasn’t describing how qualified immunity prevented his grandfather from challenging the officer for that illegal stop, he may as well have been. Ending or at least reforming qualified immunity would ensure that government employees who violate people’s rights — like the officer who unconstitutionally harassed Justice Thomas’s grandfather — answer for their misconduct before a jury.
Mark Miller is a senior attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.