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The George Floyd case has focused public attention on the legal principle of qualified immunity. While qualified immunity is not at issue in the prosecution of former Minneapolis police officer Derek Chauvin and the three other officers charged with criminal counts relating to George Floyd’s death, it is one of several structural factors that make it difficult to hold policemen accountable for misconduct.

Now, qualified immunity has become a major stumbling block in negotiations at the federal level over police reform, with the entire measure possibly hanging on it. So, what is qualified immunity and what does this mean for police officers?

What Is Qualified Immunity?

Qualified immunity is a legal principle that allows law enforcement and other government employees to defend claims for monetary damages for civil rights abuses. Unless the plaintiff can establish that an officer acted in violation of a “clearly established” right—that is, a court has previously ruled similar action unconstitutional—the officer cannot be held liable.

“Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan.

Qualified immunity shields law enforcement personnel and other public officials from liability in civil cases. It seeks to strike a balance between the obligation to enable public officials to perform their tasks while at the same time deterring bad conduct.

Proponents of qualified immunity point out that without a liability shield, public officials and law enforcement personnel would be constantly sued and second-guessed in courtrooms. The doctrine has been criticized for allowing law enforcement officials to violate the rights of citizens, particularly those who are disfranchised.

The Story Behind “Qualified Immunity”

The idea for the law dates back to 1871 when Congress established the federal right to sue state and local government officials for violating the Constitution under what’s known as Section 1983.

White vigilantes terrorized newly freed Black Americans in the aftermath of the Civil War, with law enforcement officials doing little to stop them and even participating themselves. Congress wanted to give people the ability to defend their own civil rights and reasoned that federal juries would be more likely to enforce the Constitution. But the Supreme Court initially interpreted Section 1983 quite narrowly, and it basically lay dormant for the next 90 years.

As the Civil Rights Movement accelerated in the 1950s, attorneys began to utilize Section 1983 more frequently. The Supreme Court reinstated Monroe v. Pape, reaffirming that individuals can sue law enforcement officials under Section 1983 for civil rights infractions.

But then, everything changed. The Supreme Court ruled in 1967’s Pierson v. Ray that police officers and other government officials are immune from claims for damages unless they violate clearly established law, which may be found through a reasonable inquiry.

In 1997, the Supreme Court made an important change in the law when it ruled that public officials have qualified immunity unless they knew or should have known that their conduct violated a plaintiff’s constitutional rights. The court added that public officials are immune unless they knew or should have recognized that their behavior was unlawful.

This action replaced the previous “good faith” test with something a bit more “objective.” Nowadays, this test is what analysis courts use when determining if qualified immunity protects an officer from a lawsuit or not.

How Does Qualified Immunity Work?

It’s very important to know that there is a huge difference between qualified and absolute immunity. In other words, there are occasions when a public official can be sued for constitutional infringements in civil court. Basically, qualified immunity is an officer-friendly doctrine that protects “all but the plainly incompetent or those who intentionally break the law.”

The Supreme Court established a two-step test to determine whether qualified immunity applies. If both parts of the test are answered in the affirmative, the public official does not qualify for immunity.

The next step is to establish when a right has been “articulable.” A right is considered clearly established if the Supreme Court or a relevant federal appeals court has previously condemned the behavior, or where public officials’ actions are “obviously unlawful.”

Is this always easy? No. A plaintiff must show that a right is well-defined in order to establish that it has been violated. A victim must show that the Supreme Court or a federal appeals court in the same region previously ruled that precisely the same conduct under similar circumstances was unlawful or unconstitutional. By default, qualified immunity protects officials if no decision exists.

Take, for example, the U.S. Court of Appeals’ recent comment that a prison guard who pepper-sprayed an inmate in his locked cell “for no reason” did not violate a clearly-established right because similar cited cases involved police officers hitting and tasing inmates “for no reason,” rather than pepper-spraying them “for no apparent cause.”

In fact, the Supreme Court instructed in 2009 that lower courts may depart from the first stage of the test at their discretion. Many jurisdictions now do so.

As a result, judges now examine past court cases to see whether there are comparable facts on record that would put the officer on notice that his or her conduct violated another person’s clearly established constitutional or statutory rights. The facts of an allegation of police misconduct in particular situations are extremely significant when qualified immunity is considered.

Another successful civil rights case against the City of Los Angeles and the Los Angeles Police Department (LAPD) as well as 13 S.W.A.T. police offers who used extreme excessive forceand simultaneously shot at an unarmed person. Anthony Soderberg was shot over 45 times from distances ranging from 100 – 600 feet away – including from a helicopter – claiming their use of force was reasonable as they feared for their safety. After over two years of discovery, we successfully prepared the matter for trial and discovered – on the eve of trial – a S.W.A.T. Officer who had filed internal complaints regarding the civil rights violations he had witnessed against Mr. Soderberg. All parties agreed to resolve the matter for $1,150,000.00. A link to this story can be found here:


Who Does Qualified Immunity Apply To?

Although some types of qualified immunity are limited to federal employees, all government workers are covered by it. It applies to both local and state governments (though certain ones, such as prosecutors and judges, might be provided with greater protection).

All those who work for the government, as well as private businesses that collaborate with or perform governmental responsibilities, such as private prison operators and ankle-monitoring firms, are among them.

Pros & Cons of Qualified Immunity

There are several reasons put forth to keep the qualified immunity doctrine as it is, including:

The following are some of the arguments against qualified immunity as it currently stands:

Kirakosian Law and You

At Kirakosian Law, we stand up to government entities when there’s evidence of misconduct by our civic leaders and members of law enforcement. We have no problem taking cases to federal court.

Excessive force and police misconduct are a growing concern in our society. Our firm actively pursues cases involving improper conduct, false arrests, unjustified shootings, and other abuses of power.

If we can’t reach an appropriate settlement through mediation, we are fully prepared to take civil cases to trial. Mr. Kirakosian in fact was victorious in Los Angeles Federal Court, obtaining a large verdict for a man who sued the Los Angeles Police Department for violating his constitutional rights and for malicious prosecution by an on-duty LAPD detective.

If you or someone you know has suffered emotional distress or injury due to a civil rights violation, contact our attorney at Kirakosian Law APC for a free consultation.