The United States Supreme Court adopted the defense of qualified immunity many years ago to prevent public employees from being sued successfully for what they do (or do not do) in the line of duty. This defense turns on the idea that public servants should not be constantly fearing litigation for simply doing their jobs. Indeed, as the logic of qualified immunity goes, public servants must be able to exercise necessary discretion and split-second judgment without the distraction of looming lawsuits and second-guessing courts.
The application of qualified immunity to law enforcement personnel reveals, however, that this defense can undercut the rule of law – with tragic consequences for individuals, communities, and the broader public. The problematic nature of qualified immunity results mainly from how the courts have developed and expanded the defense.
Put simply, qualified immunity insulates law enforcement personnel from legal responsibility for civil rights and civil liberties violations if prior court decisions have not clearly outlawed the conduct in question. Consequently, even the use of unreasonable force by police will not violate the law if the courts have not previously ruled that the conduct involved is unreasonable and, thus, violates constitutional protections and/or other civil rights or civil liberties provisions. In effect, then, qualified immunity relies on the paradox of protecting conduct that amounts to “reasonable” unreasonableness. More to the point, this defense creates an often insurmountable Catch-22. Qualified immunity applies unless prior court rulings clearly establish the challenged conduct as unreasonable and, therefore, illegal – but that same defense prevents the prosecution of cases to obtain the court rulings needed to establish what conduct is unreasonable for purposes of defeating qualified immunity.
The United States Supreme Court recently issued two per curiam opinions that expand the scope of qualified immunity even as the nation continues to witness high-profile murders of unarmed people of color by law enforcement personnel. Both opinions, Rivas‐Villegas v. Cortesluna and City of Tahlequah v. Bond, summarily and unanimously reversed lower‐court rulings that denied qualified immunity to police officers. The United States Supreme Court based its opinions in these two cases on essentially the same rationale: qualified immunity applies because no prior court rulings with facts sufficiently like the facts of Cortesluna and Bond supposedly exist.
That the United States Supreme Court went to such lengths to distinguish the facts in these two cases from those in prior court decisions is especially striking given the outrage across the world after the police murder of Mr. George Floyd in Minneapolis. Perhaps anticipating that tolerance of deadly police misconduct will continue at the Federal level, several States recently either eliminated qualified immunity completely or restricted its application in important ways. As such progressive initiatives expand, the frequency and severity of discrimination, harassment, retaliation, and other violations of civil rights and civil liberties at the hands of law enforcement hopefully will decrease.