CLAYTON SCHMITT—As policing remains a hot topic across America, reformers from both sides of the political spectrum have started to call for an end to the doctrine of qualified immunity. Essentially, these reformers make the same point: the doctrine ratifies police misconduct and prevents citizens whose rights have been violated by law enforcement officers from ever having a chance to prove their cases in court. This reform movement is gaining steam; it boasts support from organizations as diverse as the ACLU, SAF (Second Amendment Foundation), Reason Foundation, and the NPAP (National Police Accountability Project). Unfortunately, it also risks throwing out essential protections for police officers should it accomplish its stated goal.
First, the basics—the doctrine of qualified immunity was established by the Supreme Court in 1982, in Harlow v. Fitzgerald. At the time, government officials relied upon common-law concepts like good faith or reasonableness to defend against civil-rights litigation under 42 U.S.C. § 1983. However, after Harlow, officials need only show that their actions did not violate “clearly established statutory or constitutional rights” that would have been known to a “reasonable person.” Although the Supreme Court has reaffirmed this test in recent cases, Justice Thomas and Justice Sotomayor wrote separately to indicate a desire to either revisit the doctrine or at least expand the judicial definition of “clearly established rights.” Currently, to show that a right is clearly established, plaintiffs must generally be able to point to some prior case with a nearly-identical fact pattern to prevent the application of qualified immunity.
Two recent appellate cases demonstrate the extreme results qualified immunity can produce: Maney v. Garrison in the 4th Circuit Court of Appeals and Young v. Borders in the 11th Circuit Court of Appeals. In Maney, an officer was granted qualified immunity after allowing his police dog to continue to bite a suspect the officer knew to be innocent until the man was able to show the officer his hands. In Young, a deputy sheriff had been pursuing a speeding motorcyclist suspected to be armed and involved in an earlier assault and battery. The deputy knocked on the wrong apartment door at some time after one in the morning, did not identify himself, and then shot and killed the man who answered the door with a pistol held at his side. The man was not the motorcyclist.
These two cases show the dark side of qualified immunity. In its current form, the doctrine can provide cover to officers who make bad decisions or even those who act in outright bad faith.
However, the reformers’ goal minimizes the value that the doctrine provides. There is a middle-ground solution that can both protect police officers while they perform a dangerous job and encourage those officers to treat the citizens they serve with greater care.
Qualified immunity serves a meaningful purpose, and a complete abrogation of the doctrine would be dangerous for police officers and costly for the American judicial system. The Supreme Court has recognized the importance of qualified immunity for officials, especially with regard to the costs of defending against lawsuits related to governmental duties. Multiple law enforcement agencies, including the FBI and FLETC (the Federal Law Enforcement Training Center), recognize the importance of qualified immunity in protecting police officers from suits related to work. Police publications discuss the value of the doctrine for officers who have to make potentially fatal decisions in split-second encounters. Without any such protection, officers and law-enforcement agencies would have to defend considerably more lawsuits all the way through trial, which would significantly increase costs to both taxpayers and the officers themselves. Knowing that even their reasonable actions could lead to an extended lawsuit, officers would be likely to hesitate in critical moments, with possibly all-too-serious consequences.
Instead of dropping the doctrine entirely, courts should be willing to view the concept of “clearly established rights” more broadly. The Constitution, and all of the legal decisions surrounding its many provisions, provides a ready remedy. The protections of the Second, Fourth, Fifth, and other Amendments draw a broad roadmap of which rights law enforcement officers should reasonably know are protected by established law. Litigation under § 1983 already uses such a format by incorporating traditional common-law or popular concepts such as false arrest or excessive use of force into violations of Constitutional protections. Such a framework can, and should, provide a better approach to viewing “established rights” broadly instead of narrowly. By doing so, the goals of both § 1983 and qualified immunity can be preserved: people will be able to more easily seek redress without having to prove near-perfect factual consistency, and police officers will be able to act reasonably in uncertain situations knowing their actions are still protected so long as they do not cross well-known and established bright lines.