Qualified Immunity

Qualified immunity emboldens police violence and impedes accountability.

Qualified immunity is a legal doctrine that can limit a person’s ability to sue public employees, such as police officers, for constitutional rights violations. An officer can receive qualified immunity only if a court decides an officer has not violated “‘clearly established law” through their actions.  But courts vary widely in their interpretation of this broad legal defense, leading to uncertainty and uneven outcomes. In Washington, DC, where Black residents are 13 times more likely than white residents to be killed by police, qualified immunity has been used to prevent residents from suing the police. DC elected officials have yet to take meaningful action to end qualified immunity.  Other places, including California, Colorado, New York City, New Mexico, and Connecticut, have all passed legislation to curb the qualified immunity defense. DC should change the law to ensure people who are harmed by police can be fairly compensated.

What you need to know

Qualified immunity seriously limits police accountability.

Qualified immunity is a legal defense that protects law enforcement officers and government officials from being held accountable for violating people’s constitutional rights. The U.S. Congress passed a law in 1871 allowing people to bring lawsuits against state and local government officials who have violated their civil rights. The laws were a legal remedy against government officials who refused to protect African Americans from—or even participated in—racial terror lynchings and other acts of racial violence by groups like the Ku Klux Klan. Starting in the late 1960s, the Supreme Court started limiting that right in Pierson v. Ray, 386 U.S. 547 (1967), ruling that police officers, among other government officials, are entitled to a defense of good faith and probable cause when an officer violates a person’s civil rights.

Case-by-case, fact-by-fact decisions on qualified immunity lead to unequal outcomes.

Supreme Court rulings have led to qualified immunity being applied on a case-by-case basis.   Harlow v. Fitzgerald, 457 U.S. 800 (1982), held that public officials should be entitled to qualified immunity regardless of whether they had acted in good faith as long as there was no existing case law that clearly established the defendant’s conduct as unlawful. The Supreme Court in Pearson v. Callahan, 555 U.S. 223 (2009), set a precedent allowing courts to focus only on whether previous court rulings had clearly established the conduct as unlawful.  More recently in White v. Pauly, 580 U.S. (2017), the Supreme Court said the qualified immunity defense “do[es] not require a case directly on point,” but it does require that “existing precedent must have placed the statutory or constitutional question beyond debate.”  This means that precedent must fit the situation at hand and is somewhat open to a court’s interpretation, leading to uneven outcomes and overturned decisions. Individual courts across the country determine who is entitled to qualified immunity on a case-by-case, fact-by-fact basis. This leaves little room for clarity on what constitutes a rights violation, both for the public and for the police.

The U.S. Congress has not passed a law to curb the impact of qualified immunity.

Due to the  lack of clarity surrounding the application of qualified immunity, both federal and state legislatures have introduced or passed bills to address the issue. The Congressional Research Service says Congress has “wide authority to amend, expand, or even abolish the doctrines” supporting qualified immunity. In 2019, Congress introduced H.R. 7085—the Ending Qualified Immunity Act—which would have eliminated the qualified immunity defense in civil actions for deprivation of rights, abolishing both the “good faith” defense and the defense that the law was not established at the time of the alleged misconduct. However, this legislation, and other legislation to curb qualified immunity in 2020 and 2021, has not moved forward, leading to more intensive efforts to address the issue through litigation and laws in the states.

DC law severely limits remedies for victims of police violence against qualified immunity.

DC law requires that a person seeking to bring a claim against a DC government official notify the Office of the Attorney General for the District of Columbia within six months of the injury: In the aftermath of a crime, a person who has been traumatized has to navigate a legal process within 180 days. The DC Police Reform Commission said that these challenges are compounded for victims of police violence who may be incarcerated or facing criminal charges. When filing a claim, they risk self-incrimination as  they must provide details such as the time, place, cause, and circumstances under which their rights were violated–details that often overlap with their pending charges.

In DC, qualified immunity has been used as a defense in serious cases of police violence.

Qualified immunity leads to absurd results where there is no redress for harm caused by conduct that is absurdly violent, undeniably unconstitutional, or obviously done in bad faith. In 2012, in Youngbey v. March, the U.S. District Court for the District of Columbia granted qualified immunity to officers who conducted a 4 a.m., unannounced search of a home in Northeast DC without a warrant authorizing a night-time search and permitting the officers to enter the home without announcing their presence. In Fenwick v. Pudimott, 778 F.3d 133 (D.C. Cir. 2015), the qualified immunity defense was used by three deputy US Marshals who shot an unarmed 16-year-old after the teenager declined to speak with them and began to drive away. Because of qualified immunity, the Marshals were not held accountable for their actions of surrounding the car with guns drawn and opening fire on the unarmed teen. In 2020, after multiple police forces used tear gas, rubber bullets, and a baton charge to clear DC residents from a park, a lawsuit seeking some redress in Black Lives Matter D.C. v. Trump, 20-cv-1469 (DLF) (D.D.C. Mar. 13, 2024) was dismissed, in part because of the extraordinarily high standard of trying to find prior precedent cases concerning a former U.S. President.

States and cities have taken steps to curb the use of qualified immunity – DC has not.

States and localities can pass legislation to limit the qualified immunity defense. Colorado, New York City, New Mexico, and Connecticut have all enacted laws that limit police officers’ immunity, and other states have introduced similar legislation.  Four current DC Council members have shown support for ending qualified immunity. No legislation to end qualified immunity has been enacted in DC.

There is widespread support for ending qualified immunity nationwide.

In addition to the many organizations, judges,  and experts who support ending qualified immunity, a majority of the American public also desire greater accountability for the police. A 2020 study by the Pew Research Center found that 66 percent of Americans say that civilians need to have the power to hold police officers accountable for excessive force and other misconduct. This number was even higher amongst Black Americans (86 percent) and Democrats or Democrat-leaning independents (84 percent) – groups that make up large parts of the District’s population.

WHERE TO LEARN MORE

Our Solutions

Consistent with the recommendations of the Police Reform Commission,  DC should amend the criminal code to: 

  • Create an independent cause of action explicitly excluding the qualified immunity defense;
  • End the six-month statute of limitations on victims filing suit against government officials.
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special thanks

Megan Walker ★ Iris Benson-Sulzer ★ Rahketa Steele ★ Catherine Young ★ Terra Martin

Last Updated on September 20, 2024.

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