What’s Next for Qualified Immunity?

At the 2022 PRIMA Annual Conference, a session discussed recent case law and legislative changes impacting qualified immunity for law enforcement officers. The speakers were:

• Benjamin Eggert – Wiley Rein LLP
• Steve Leone – Genesis Management & Insurance Services Corp

Qualified immunity for law enforcement officers is receiving increased attention on state and federal levels as a response to high profile incidents involving potential police misconduct in recent years.

There is also significant societal pressure to prosecute police officers for misconduct. A record 21 officers were criminally changed in 2021. This number may seem inconsequential, but prosecutions used to be rare, and now, they are increasing.

Qualified immunity was created nearly 40 years ago in the US Supreme Court case of Harlow v. Fitzgerald as a defense to Section 1983 lawsuits. This stated that government officials performing discretionary functions are shielded from liability for civil damages, if their conduct does not violate a clearly established right of which a reasonable person would have known. The legal test for qualified immunity consists of two questions:

1. Was there a violation?
2. Was there a clearly established right that was known?

Although the focus is currently on law enforcement, qualified immunity applies to all government officials. The politicians calling for removal of qualified immunity for police officers are themselves protected from lawsuits by its benefits.

The reasons given for limiting qualified immunity include:

• Protection of rights
• Accountability
• Clearly established standard is too high

Reasons to preserve qualified immunity include:

• Costs of litigation
• Distraction from the mission
• Deterrent effect on hiring
• Chilling effect on beneficial conduct

Since qualified immunity was established by the US Supreme Court and not by statute, there is considerable litigation trying to define its parameters. This is stalling development of laws around the issue that apply to state and federal levels. Inaction sends the wrong signal to both the public and police, as there are clearly issues to address.

Legislative attempts to reform qualified immunity have stalled. The George Floyd Justice in Policing Act of 2021 passed the House, but not the Senate due to opposition of a specificity in it that would ban qualified immunity for police officers. A Biden administration executive order signed in May 2022 announced limited reforms, but these focused on police activities instead of qualified immunity. However, whether these order will be enforceable is in question.

There are ongoing efforts to reform qualified immunity under state law around the nation. Colorado and New Mexico passed laws that ban qualified immunity, while other states are also considering this. Anything that happens on the state level would not affect federal cases.