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.
The doctrine of qualified immunity protects different classes of government officials, state officials, and public officials. Some of these include:
- State governors,1
- School officials,2
- Prison officials,3 and
- Police officers.4
Under this doctrine, 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 this doctrine in a lawsuit, the court will generally dismiss the case.
Qualified immunity cases involve lawsuits that seek monetary damages in federal courts. If the lawsuit only demands a change in policy, this doctrine cannot be invoked.6
Questions of police reform have reached a fever pitch in the wake of the killing of George Floyd by Minneapolis police, and the police violence and police use of tear gas in the ensuing protests. Some members of the Senate in Congress suggest doing away with these police protections altogether. Meanwhile, the U.S. Supreme Court has recently turned down several federal appeals court cases involving how this doctrine keeps police brutality victims from recovering settlements.7
1. How can victims of police misconduct overcome qualified immunity?
Overcoming qualified immunity is critical in a police misconduct lawsuit. Claiming this doctrine 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 two prongs:
- their constitutional rights were violated, and
- those rights were so clearly established that a reasonable officer / reasonable official would have known he/she committed the constitutional violation.
Only by overcoming the qualified immunity defense can a victim recover money damages.
A trial court’s / district court’s decision about these cases can be appealed right away. The case does not have to go to the end before it can be contested to an appeals court. Police officers can appeal lower courts’ decisions 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 (no probable cause), and illegal searches, search warrants, or seizures,9
- freedom from cruel and unusual punishments (which can include excessive force, unnecessary use of force, and deadly force a.k.a. police brutality),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 the qualified immunity doctrine 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 civil liberties. Law enforcement claims that the case involves particular details involving a constitutional question that have never been decided, before.15
4. What remedies are there for a civil rights violation?
Overcoming the qualified immunity test means the officer can be held personally liable for their actions. They can be compelled to pay compensation to the victim.
It is rare for the police officer’s employer to be held vicariously liable.16 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 to be held responsible for civil damages. This is if the officer was acting according to a policy or custom.17
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.
5. What is the law in California?
California law says that police officers, government officials, and public officials can assert a qualified immunity defense in certain cases.
Note, though, that there is arguably no qualified immunity for California police officers accused of false arrest or imprisonment.19 And unlike federal law, California law places the burden on the police to justify a false arrest or imprisonment.20
Further, under California’s Tom Bane Civil Rights Act, citizens can file civil lawsuits against government employees if they interfere by threat, intimidation, or coercion with that person’s constitutional rights. Government employees are barred from raising a qualified immunity defense in these cases.21
Under California Senate Bill 2, prison guards and their employers cannot use a qualified immunity defense in most cases where they injure prisoners or fail to provide medical care to them.22
When California law enforcement officers get sued for misconduct, they can ask their police department to defend them going forward. Whether the case settles or the police officer is found liable at trial, the police department is responsible for paying all compensatory damages to the plaintiff. This includes expenses for medical bills, lost wages, pain and suffering, and other out-of-pocket expenses.
California law does not make police departments liable for paying punitive damages in police misconduct lawsuits. However, the department can elect to pay punitive damages anyway if:
- the trial judgment is based on an act or omission of an officer (or former officer) acting within the course and scope of his or her employment,
- at the time of the misconduct, the officer acted in good faith, without actual malice, and in the apparent best interests of the department, and
- payment of the claim or judgment would be in the best interests of the department.20
(Punitive damages are meant to punish the defendant rather than compensate the plaintiff. And punitive damages only come into play if the case goes to trial and the defendant loses.)
For cases in Nevada, please see our article on criminal justice cases against the government in Nevada.
- Scheuer v. Rhodes, 416 U.S. 232 (1974).
- Wood v. Strickland, 420 U.S. 308 (1975).
- Procunier v. Navarette, 434 U.S. 555 (1978).
- Pierson v. Ray, 386 U.S. 547 (1967).
- Harlow v. Fitzgerald, 457 U.S. 800 (1982).
- Mitchell v. Forsyth, 472 U.S.C. 511 (1985) (“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 Circuit Court of Appeals 1991).
- Josh Gerstein, Supreme Court turns down cases on ‘qualified immunity’ for police, Politico (June 15, 2020)(though Justice Sonia Sotomayor and Justice Clarence Thomas indicated that the doctrine warrants review); Jamie Ehrlich, Democrats team for effort to end doctrine shielding police as GOP backs off, CNN (July 1, 2020)(“Similar legislation was introduced in the House in June by Reps. Ayanna Pressley, a Massachusetts Democrat, and Justin Amash, a Michigan Libertarian, finding support from 60 members of Congress on all sides of the aisle…Some Republicans have said they are willing to look at revision rather than elimination.”); see also the Institute for Justice regarding qualified immunity jurisprudence.
- Camreta v. Greene, 131 S.Ct. 2020 (2011); see also Callahan v. Millard Cty, 494 F.3d 891 (Tenth Circuit 2007); Haugen v. Brousseau, 339 F.3d 857 (Ninth Circuit 2003).
- See e.g., Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009); see also Zadeh v. Robinson, 928 F.3d 457 (Fifth Circuit 2019).
- Hope v. Pelzer, 536 U.S. 730 (2002). See also See also Rivas-Villegas v. Cortesluna (2021) 142 S. Ct. 4.
- See U.S. v. Lanier, 520 U.S. 259 (1997); see also Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), 42 U.S.C. § 1983 and the common law good-faith defense.
- Davis v. Scherer, 468 United States Supreme Court 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 cases are not necessary).
- Hope v. Pelzer, Supra.
- Anderson v. Creighton, 483 U.S. Supreme Court 635 (1987); also see Malley v. Briggs, 457 U.S. 335 (1986).
- Monell v. Department of Social Services, 436 U.S. 658 (1978).
- See Owen v. City of Independence, 445 U.S. 622 (1980); also see case law Saucier v. Katz, 533 U.S. 194 (2001), a prior case to Pearson v. Callahan, 555 U.S. 223 (2009).
- California Penal Code 847.
- California Penal Code 847.
- California Civil Jury Instructions 1401-1402.
- See Senate Bill 2 (approved by Governor September 30, 2021).
- See same.