Qualified immunity is a legal doctrine that protects government officials from lawsuits seeking money damages. The doctrine applies when officers are exercising discretion in their official capacity. The defense of qualified immunity, when invoked successfully, leads to dismissal of civil claims.
Qualified immunity protects different classes of government officials. Some of these include:
- State governors,1
- School officials,2
- Prison officials,3 and
- Police officers.4
Under qualified immunity, police officers can act without fear of being sued. It can protect them as long as their conduct does not:
- violate the victim's constitutional rights, which
- were so clearly established that a reasonable person would have known them.5
When government officials successfully raise qualified immunity in a lawsuit, the court will generally dismiss the case.6
Qualified immunity only applies to lawsuits that seek monetary damages. If the lawsuit only demands a change in policy, qualified immunity cannot be invoked.7
1. How can victims of police misconduct overcome qualified immunity?
Overcoming qualified immunity is critical in a police misconduct lawsuit. Claiming qualified immunity is one of the first things that police officers do when they are sued. If they convince the judge that they are immune from the lawsuit, the judge will likely dismiss the case. The victims will recover nothing for their losses if this happens.
Police officers accused of misconduct have the burden of proving they are immune from a lawsuit. Victims can argue that immunity does not apply. To do this, one would have to show:
- their constitutional rights were violated, and
- those rights were so clearly established that a reasonable officer would have known he was violating them.
Only by overcoming the qualified immunity defense can a victim recover money damages.
A court's decision about qualified immunity can be appealed right away. The case does not have to go to the end before it can be appealed. The police officer can appeal the decision even if they prevailed on one of the steps.8
2. What is a constitutional right?
Constitutional rights are those that are enshrined in the U.S. Constitution or federal law.
In the context of police misconduct, they include:
- protection from unlawful detentions, false arrest, searches, or seizures,9
- freedom from cruel and unusual punishments,10 and
- safety from sexual assault, harassment, or other crimes.11
Rights guaranteed under state law cannot be used to overcome qualified immunity.12 Only federal rights count.
3. When is a constitutional right clearly established?
Police cannot invoke qualified immunity if they violated a right that was clearly established. It has to be clearly established at the time of the violation.
What makes a constitutional right “clearly established” is up for debate.13 The Supreme Court has made conflicting statements about it. At best, the court has provided a general rule of thumb. A right is clearly established if a police officer had fair notice of it.14
However, police officers often stress that there are no laws that prohibit exactly what they did. Victims often have to show that the officer's conduct was prohibited by a more general rule.
Example: An FBI agent searches a home without a warrant. The victims of the search claim it was an unreasonable search that violated their Fourth Amendment rights. Law enforcement claims that the case involves particular details that have never been decided, before.15
4. What remedies are there for a civil rights violation?
Overcoming qualified immunity means the officer can be held personally liable for their actions. They can be compelled to pay compensation to the victim.
In California, police officers held personally liable are indemnified for their expenses.16 Their department will cover whatever damages are levied against the officer. However, holding the officer's police department or town liable is important. It can mean the victim recovers what they deserve.
It is rare for the police officer's employer to be held vicariously liable.17 When police commit misconduct, they usually violate official police procedures. This means the department or town is not liable for the misconduct because it broke their rules.
There is one way for the department or town could be held liable. This is if the officer was acting according to a policy or custom.18
Punitive damages are also possible in civil rights cases. It requires overcoming qualified immunity, though. They are far more common in civil rights cases than in personal injury lawsuits.
(For cases in Nevada, please see our article on qualified immunity in lawsuits against the government in Nevada).
Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Mitchell v. Forsyth, 472 U.S. 511 (1985) (qualified immunity is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial”).
Fry v. Melaragno, 939 F.2d 832 (9th Cir. 1991).
Camreta v. Greene, 131 S.Ct. 2020 (2011).
See e.g., Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009).
Hope v. Pelzer, 536 U.S. 730 (2002).
See U.S. v. Lanier, 520 U.S. 259 (1997).
Davis v. Scherer, 468 U.S. 183 (1984).
Compare Brosseau v. Haugen, 543 U.S. 194 (2004) (rights are only “clearly established” if there is a court case recognizing them in a scenario similar to the victim's) and Hope v. Pelzer, Supra (court cases involving fundamentally similar situations are not necessary).
Hope v. Pelzer, Supra.
Anderson v. Creighton, 483 U.S. 635 (1987).
California Government Code § 825(a).
Monell v. Department of Social Services, 436 U.S. 658 (1978).
See Owen v. City of Independence, 445 U.S. 622 (1980).