Destined For Demise?'The Fate Of The Qualified Immunity Doctrine Remains Uncertain Amid Newest Federal And State Policing Reform Efforts

• Published date: 15 July 2020
• Law Firm: Duane Morris LLP
• Author: Ms Nicolette J. Zulli

Following weeks of protests ignited by the death of George Floyd, a storm of social media activism, and bipartisan calls for reforms to policing, the difficult issue of whether the legal doctrine of qualified immunity should survive has emerged onto the national center stage.

On July 1, 2020, Democratic Sens. Ed Markey (D-Mass.) and Elizabeth Warren (D-Mass), along with Sen. Bernie Sanders (I-Vt.) introduced Senate Bill 4142, "The Ending Qualified Immunity Act." The bill is a piece of companion legislation to House Bill 7085, which was introduced in the House of Representatives on June 4, 2020 by Reps. Justin Amash (L-MI-3) and Ayanna Pressley (D-MA-7). The Act is the latest of several recent legislative proposals for comprehensive police reform. The bill seeks to "amend the Revised Statutes to remove the defense of qualified immunity in the case of any action under Section 1979, and for other purposes.¹

On the state level, the Massachusetts State Senate announced a proposed bill on July 6, 2020, which seeks to reform police departments across the state by limiting qualified immunity and changing funding, among other proposals. This follows the lead of several other states, including New York and Colorado, that are considering, or have already passed, legislation to limit or abolish the availability of the qualified immunity defense in state court civil actions.

Knowledge of what qualified immunity is, how it works, and the primary role it is alleged to play in fostering police violence in the United States is critical in understanding where the doctrine may be headed in the months and years to come.

What is Qualified Immunity & How Does it Work?

Qualified immunity is a non-statutory, judge-made doctrine, introduced by the United States Supreme Court in Pierson v. Ray.² Its original purpose was to protect law enforcement officials from frivolous lawsuits and financial liability in cases where they acted in good faith in unclear legal situations.³

Today, the doctrine functions to shield government officials from being held personally liable for money damages for constitutional violations, such as use of excessive police force, under federal law, so long as the officials did not violate "clearly established principles."⁴

Both 42 U.S.C. Section 1983⁵ and the Supreme Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics⁶ allow individuals to sue government officials for money damages for violations of civil or constitutional rights.

However, in such lawsuits, qualified immunity dictates that "government officials can only be held civilly accountable for violating someone's rights if a court has previously ruled that it was 'clearly established' those precise actions were unconstitutional."⁷ If no such prior ruling exists, or exists, but in another jurisdiction, the official is immune even if s/he intentionally violated the law.⁸ This often presents a heavy obstacle for plaintiffs, because they bear the burden to identify earlier decisions by the U.S. Supreme Court, or a federal appeals court in the same jurisdiction, holding that the precisely same conduct, under the same circumstances, is illegal or unconstitutional, in order to stand a chance at prevailing on their claim.⁹

Further, the "clearly-established" test does not require the examining court to determine whether the actions at issue were, in fact, wrongful in deciding a case under qualified immunity.¹⁰ For...