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.”
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. 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.
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.”
Both 42 U.S.C. Section 1983 and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics 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.” If no such prior ruling exists, or exists, but in another jurisdiction, the official is immune even if s/he intentionally violated the law. 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.
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. For example, where a police officer shot a 10-year-old child while trying to shoot a nonthreatening family dog, the Eleventh Circuit ruled that the officer was entitled to qualified immunity because no earlier case held it was unconstitutional for a police officer to recklessly fire his gun into a group of children without justification. The Court also declined to establish that rule (i.e., decide the constitutionality of the particular conduct). This dynamic permits what many opponents of the doctrine suggest is a cycle of unlawful police conduct. Police officers, in many cases, escape liability and then remain entitled to qualified immunity should they engage in the same conduct again.
The Role of Qualified Immunity in 2020 America
In most cases, qualified immunity renders all government officials immune from liability, by default, if they violate a U.S. citizen’s rights.
For this reason, qualified immunity finds itself the subject of bipartisan scrutiny in the wake of the recent nationwide protests and a decided shift of the national consciousness on the issues of race and law enforcement.
The concern over the role and use of qualified immunity is nothing new. In fact, there has been persistent debate and criticism of qualified immunity among legal scholars and judges in recent years. To be sure, the recent events involving Mr. Floyd seem to have acted as a catalyst to thrust this debate to the forefront. Not surprisingly, this has resulted in divisions among lawmakers regarding what should be done.
Some more liberal commentators argue that qualified immunity improperly denies recovery to victims and encourages police misconduct. Some legal conservatives have questioned whether qualified immunity’s doctrinal foundations are sound—arguing that the Supreme Court improperly innovated when first recognizing the doctrine back in 1967.
To date, the Supreme Court has refused to reconsider the doctrine. As recently as June 13, 2020, the Court, in an unsigned order, declined to hear cases seeking reexamination of the doctrine of qualified immunity. Justice Thomas dissented saying, “The qualified immunity doctrine appears to stray from the statutory text.” Justice Sotomayor, arguably one of the Court’s more liberal voices, and Justice Thomas, arguably one of its more conservative, have repeatedly urged the Court to reexamine qualified immunity, to no avail.
Thus, as of now, any change to the availability and scope of the doctrine will have to come via legislation. And the competition so far has been fierce.
Timeline and Discussion of Competing Legislative Reform Efforts
To date, several competing reform bills and packages that seek to reform or abolish qualified immunity have been introduced on the federal and state levels:
Current Federal Legislation
- The “Ending Qualified Immunity Act,” H.R. 7085, introduced in the House on June 4, 2020 by Reps. Justin Amash (L-MI-3) and Ayanna Pressley (D-MA-7), proposes to remove the defense of qualified immunity for all public officials, in the case of any action under section 1979 (42 U.S.C. § 1983) and for other purposes, on the basis that the modern doctrine frustrates the original intent of Congress in passing 42 U.S.C. 1983.
- The “George Floyd Justice in Policing Act of 2020,” H.R. 7120, was introduced on June 8, 2020 by Rep. Karen Bass (D-CA-37) and would end qualified immunity for law enforcement, among various other reform measures. This comprehensive reform package has received criticism from civil liberties groups, like the ACLU, that say the bill is imperfect in that some of its provisions would increase federal funding for state and local law enforcement. Nevertheless, the Democrat-led House of Representatives passed the Act on June 25, 2020, which has now been placed on the Senate Legislative Calendar.
- The “Just and Unifying Solutions to Invigorate Communities Everywhere Act (“JUSTICE Act”), S.3985, was presented by Sen. Tim Scott (R.-S.C.) and Senate Republicans on June 17, 2020, as a more moderate, comprehensive policing reform option. The Act did nothing, however, to eliminate or address the doctrine of qualified immunity. For this reason, among others, the JUSTICE Act was dismissed and blocked by Senate Democrats on June 24th, as an “inadequate response to systemic racism in policing.”
- The “Reforming Qualified Immunity Act,” S.4036, introduced by Sen. Mike Braun (R-Ind.) on June 23, 2020, aims to reinstate the original standard for qualified immunity as applied to all public officials—allowing it to be used as a defense only if the government official’s conduct is already protected by law or a previous court ruling. Effectively, the Act would eliminate the “clearly established law” standard and clarify that a defendant’s subjective belief in the legality of their conduct is not enough, on its own, to avoid liability for a civil rights violation.
Current State Legislation
- On June 19, 2020, Colorado became the first state in the country to enact a sweeping law enforcement reform package, The “Enhance Law Enforcement Integrity Act,” SB20-217, which effectuates various reforms, including allowing plaintiffs to bypass qualified immunity in state civil actions against government officials.
- New York State Senators have likewise introduced legislation to address qualified immunity. New York State Senate Bill 8668 was introduced on July 2, 2020, which seeks to amend NY Civil Rights Law to eliminate the defense of qualified immunity for law enforcement as well as provide a state cause of action that may be brought by injured individuals and the Attorney General. The “Restoring Accountability and Civil Equality Act,” (“RACE Act”), NY S8669, was also introduced on July 2nd and seeks to amend existing NY Civil Rights law to narrow the applicability of the doctrine for public officials.
- Most recently, the Massachusetts State Senate announced the “Reform, Shift, and Build Act,” S.2800, on July 6, 2020, which aims to limit qualified immunity for law enforcement, among other reforms centered on “reforming police standards and shifting resources to build a more equitable, fair and just Commonwealth that values Black lives and communities of color.”
Is Qualified Immunity Destined for Demise?
Despite the array of proposed reform frameworks and measures by states and federal legislators, the question remains: Will the doctrine of qualified immunity remain an available affirmative defense to government officials? Maybe, if there is eventual bipartisan agreement on police reform measures. The road to achieving tangible police and police department reform has been rocky for legislators both at the state and federal levels. Thus far, the legislation proposed by congressional Democrats and Republicans has generally been multi-layer or “packaged,” reform—often attempting to strike at different elements believed to be the culprits or enablers of police misconduct. Qualified immunity has been identified and included as one of those elements in reform proposals to date. But the question of “What degree of reform is sufficient?” appears to be where any existing common purpose breaks down due to competing political ideologies and interests.
For this reason, the likelihood of any comprehensive police reform, at least at the federal level, seems unlikely for now. This renders the fate of the qualified immunity doctrine uncertain. Republicans have made it clear that ending qualified immunity at the federal level is not an option, whereas Senate Democrats have blocked more moderate Republican legislative efforts on police reform as “not going far enough.” The federal debate is far from over. What is more likely is that individual states will continue to consider, and potentially pass, legislation to address the application of qualified immunity in civil cases within their respective jurisdictions.
Pushback by Local Governments and Law Enforcement Organizations
It is also likely states will receive continued pushback by local governments and police organizations, as efforts continue to develop legislation to address qualified immunity.
On July 12, 2020, the leaders of at least two organizations for Black and Latino police officers spoke out against the newly proposed bill pending in the Massachusetts State Senate that aims to narrow, not eliminate, the application of qualified immunity. The overall concerns raised are: (1) that new legislation seeks to create change for the sake of change, and that a hyper-focus on policing may “miss the mark in creating impactful, meaningful change to address systemic racism”; and (2) that police officers are not being consulted or included as part of this change, in order to ensure a “holistic view that will help our communities.”
Regarding local government resistance—On July 6, 2020, the Greenwood City Council responded to Colorado’s enactment of The Enhance Law Enforcement Act, by approving a resolution aimed at protecting police officers from personal financial liability if they are accused of misconduct. The resolution has sparked protests in the municipality of Greenwood Village by supporters of Colorado’s new reform law. The Colorado Attorney General said he expects the legislature will take action in January to address the issue of local governments refusing to implement the reform laws as envisioned. It is possible there will be similar pushback in other states, like Massachusetts and New York, as new legislation is developed and passed.
 S.4142 – Bill Overview, CONGRESS.GOV (2020), available at https://www.congress.gov/bill/116th-congress/senate-bill/4142/text?r=6&s=1.
 386 U.S. 547 (1967).
 Jay Schweikert, The Most Common Defenses of Qualified Immunity, and Why They’re Wrong, CATO.ORG (June 19, 2020), available at https://www.cato.org/blog/most-common-defenses-qualified-immunity-why-theyre-wrong.
 Nathaniel Sobel, What Is Qualified Immunity, and What Does It Have to Do with Police Reform?, LAWFAREBLOG.COM (June 6, 2020), available at https://reason.com/2020/06/25/house-passes-policing-reform-package-including-provision-that-would-end-qualified-immunity/.
 University of Minnesota Law School, Civil Rights in the United States: Section 1983 Introduction & Secondary Sources, UNIV. MINN. LAW LIBRARY (2020), available at http://media.ca11.uscourts.gov/opinions/pub/files/201715566.pdf (“‘Section 1983 Litigation’ refers to lawsuits brought under Section 1983 (civil action for deprivation of rights) of Title 42 of the United States Code. Section 1983 provides an individual the right to sue state government employees and others “acting under color of state law” for civil rights violations.”).
 403 U.S. 388 (1971); See supra note 5 (A “Bivens action” is the federal analog to Section 1983 and affords victims of a violation of the Federal Constitution by a federal officer the right to recover damages against the officer in federal court, subject to certain exceptions.).
 Institute for Justice, Qualified Immunity: How Does It Work?, IJ.ORG (2020), available at https://ij.org/frequently-asked-questions-about-ending-qualifiedimmunity/#:~:text=%E2%80%9CQualified%20immunity%E2%80%9D%20is%20a%20special,violated%20doesn’t%20necessarily%20matter. (emphasis added).
 Id. (emphasis added).
 Corbitt v. Vickers, No. 17-15566, D.C. Docket No. 5:16-cv-00051-LGW-RSB (11th Cir. 2019), available at http://media.ca11.uscourts.gov/opinions/pub/files/201715566.pdf.
 See supra note 7.
 Jamie Elrich, Democrats team for effort to end doctrine shielding police as GOP backs off, CNN POLITICS (July 1, 2020), available at https://www.cnn.com/2020/07/01/politics/qualified-immunity-senate-markey-warren-sanders/index.html.
 Daniel Epps, Abolishing Qualified Immunity Is Unlikely to Alter Police Behavior, NYTIMES.COM (June 16, 2020), available at https://www.nytimes.com/2020/06/16/opinion/police-qualified-immunity.html.
 Nina Totenberg, Supreme Court Will Not Reexamine Doctrine That Shields Police In Misconduct Suits, NPR (June 15, 2020), available at https://www.npr.org/2020/06/15/876853817/supreme-court-will-not-re-examine-doctrine-that-shields-police-in-misconduct-suit.
 Richard Wolf, Supreme Court Won’t Consider Limiting Police Immunity from Civil Lawsuits, USATODAY.COM (June 15, 2020), available at https://www.usatoday.com/story/news/politics/2020/06/15/police-misconduct-supreme-court-wont-consider-eliminating-immunity/5282572002/.
 See H.R.7085, 116th Cong. (2019-2020).
 James Craven, JUSTICE Act Fails to Address Qualified Immunity, But Many Republicans Are Still Interested, CATO.ORG (June 17, 2020), available at https://www.cato.org/blog/justice-act-fails-address-qualified-immunity-many-republicans-are-still-interested.
 Claudia Grisales, House Approves Police Reform Bill, But Issue Stalled Amid Partisan Standoff, NPR.ORG (June 25, 2020), available at https://www.npr.org/2020/06/25/883263263/house-approves-police-reform-bill-but-issue-stalled-amid-partisan-standoff; see also Catie Edmonson, Senate Democrats Plan to Block G.O.P. Police Bill, Stalling Overhaul, NYTIMES.COM (June 23, 2020), available at https://www.nytimes.com/2020/06/23/us/politics/congress-police-reform-senate.html.
 See S.4036, 116th Cong. (2019-2020); see also Jay Schweikert, Republican Senator Introduces Legislation To Reform Qualified Immunity, CATO.ORG (June 23, 2020), available at https://www.cato.org/blog/republican-senator-introduces-legislation-reform-qualified-immunity.
 Nick Sibilla, Colorado Passes Landmark Law Against Qualified Immunity, Creates New Way To Protect Civil Rights, FORBES.COM (June 21, 2020), available at https://www.forbes.com/sites/nicksibilla/2020/06/21/colorado-passes-landmark-law-against-qualified-immunity-creates-new-way-to-protect-civil-rights/#79ff09b8378a.
 C.J. Ciaramella, House Passes Policing Reform Package, Including Provision That Would End Qualified Immunity, REASON.COM (June 25, 2020), available at https://reason.com/2020/06/25/house-passes-policing-reform-package-including-provision-that-would-end-qualified-immunity/.
 Gal Tziperman Lotan, Leaders of Black and Latino Police Groups Oppose Limiting Officers’ Qualified Immunity, BOSTONGLOBE.COM (July 12, 2020), available at https://www.bostonglobe.com/2020/07/12/metro/leaders-black-latino-police-groups-oppose-limiting-officers-qualified-immunity/.
 Eric Ruble and Alex Rose, Following Police Accountability Law, Greenwood Village Approves Resolution Protecting Officers From Liability, KDVR.COM (July 9, 2020), available at https://kdvr.com/news/local/following-police-accountability-law-greenwood-village-approves-resolution-protecting-officers-from-liability/.
 Alex Rose, Protestors Gather in Greenwood Village Following City’s Vow to Maintain Qualified Immunity Despite New Law, KDVR.COM (July 9, 2020), available at https://kdvr.com/news/local/protesters-gather-in-greenwood-village-following-citys-vow-to-maintain-qualified-immunity-despite-new-law/.