For decades, qualified immunity has been an evolving controversial legal doctrine. In light of renewed calls to extinguish the defense in state legislatures and Congress, this post adds to the chorus of voices questioning the legal premises of qualified immunity. This post first analyzes the doctrine against the backdrop of racist policing, and second in the context of police mishandling gender-based violence claims. In both examples of police misconduct, qualified immunity prevents officer accountability for civil rights violations of constitutionally protected classes and hinders development of the law to serve future plaintiffs. For these reasons, qualified immunity should be overturned.
Qualified immunity is a defense available against Section 1983 claims which allege state officials, including police officers, violated an individual’s civil rights. The qualified immunity doctrine shields these officials from liability for any harm they may cause when they were “acting under color of state law.” When a police officer asserts a qualified immunity defense, plaintiffs cannot recover for the injuries they suffered at the hands of that officer “unless existing precedent ‘squarely governs’ the specific facts at issue” so that “any reasonable official in [his] shoes” would know he is violating the Constitution because the “constitutional question [is] beyond debate.” Qualified immunity is a judge-created defense to a Section 1983 civil rights claim. In other words, Congress did not include any implicit or explicit reference to an available defense for state officials when it wrote and passed 42 U.S.C. § 1983. However, congressional intent is clear that Section 1983, originally called the Ku Klux Klan Act of 1871, was enacted for “the preservation of human liberty and human rights” in response to state violence against Black Americans. The law, by invoking the Fourteenth Amendment, was meant to create “a broad remedy” for civil rights violations. Yet over the past two decades, the Supreme Court has overwhelmingly found that police officers are entitled to qualified immunity, barring remedies to victims of constitutional violations. Thus, the judicially created doctrine of qualified immunity squarely undercuts Congress’ intent to provide broad redress for constitutional violations by state officials.
Just as qualified immunity continues to undermine the purpose of Section 1983, the original justification for creating qualified immunity is no longer relevant today. When the Supreme Court first invented qualified immunity in Pierson v. Ray, 386 U.S. 547 (1967), the Court reasoned that when an officer decides whether to make an arrest, he must be able to act decisively in the moment and without fear of facing excessive damages through § 1983 claims if he does arrest without cause. The Court believed that officers would face an impossible choice on the job: be charged with “dereliction of duty” for failing to make arrests or be charged with § 1983 damages for executing arrests. Implicit in this reasoning, and revisited in later decisions, is a reluctance to impose personal financial liability on individual officers for the decisions they make at work. But in reality, when officers and police departments are found personally liable, they are overwhelmingly indemnified by their city and state—in fact, one study found that in the country’s largest jurisdictions “officers financially contributed to settlements and judgments in just 0.41% of cases.”
Since the Court’s concern over financial burdens no longer serves as a valid justification for qualified immunity, we are left only with the Court’s fear that holding officers liable for “split-second judgments” is unjust or will unduly burden police work. But police misconduct—whether it is unreasonable searches or excessive force, for example—is often not a single instantaneous decision. And even without qualified immunity, a judge or jury can still find in favor of defendants to avoid unjust outcomes. For example, if a plaintiff who was shot by a police officer brings a Section 1983 claim alleging that the officer violated their Fourth Amendment rights, the plaintiff still must demonstrate that the officer took control of the person and that the officer’s actions are not “‘objectively reasonable’ in light of the facts and circumstances confronting them.” To decide whether the officer was acting reasonably, the court can consider a variety of factors: the severity of the crime (or alleged crime) at issue, whether the officer reasonably believed the plaintiff posed an immediate threat to himself or others, and whether the plaintiff was resisting or attempting to flee. There is ample room in such analysis to consider individual situations and decide fairly whether an officer should be liable for any conduct. Consequently, eliminating qualified immunity does not mean that officers everywhere will suddenly always be held liable in federal court. However, because qualified immunity is often granted on summary judgment, claims frequently never make it to a judge or jury to decide whether a constitutional violation has occurred. Thus, qualified immunity protects police officers from a hypothetical threat at the expense of plaintiffs’ recovery for real violations of their civil rights. Since the doctrine of qualified immunity rests on disproven theories and legal fiction, it should not continue to bar plaintiffs from recovering from officers who violate their constitutional rights.
To further highlight the problems with qualified immunity, I next turn towards a 2020 district court opinion, authored by Judge Reeves of the Southern District of Mississippi, Jamison v. McClendon. In this case, plaintiff Clarence Jamison brought a Section 1983 claim against Officer McClendon. Jamison alleged that the officer had violated his Fourth and Fourteenth Amendment rights when he subjected Jamison to a nearly two-hour traffic stop. According to Jamison, Officer McClendon held him without probable cause of criminal activity and then justified his misconduct with a lie. Officer McClendon is a white man. Clarence Jamison is a Black man who drives a Mercedes. The car was new, and the officer claimed he pulled Jamison over because the temporary tag on the car was folded and not clearly visible. Jamison complied with all orders, providing his license, insurance, and the bill of sale for the new car. Officer McClendon ran a background check that immediately came back clear, but he called dispatch to run a criminal history check and returned to Jamison’s car window to further question him. Officer McClendon asked Jamison at least five times to search the car. When he was not granted the necessary consent to search, Officer McClendon lied and said he received a call indicating that the car was transporting cocaine. Eventually, Jamison “gave up” asking for justifications for the search and allowed Officer McClendon to search the car first individually, and then with a police canine, while Jamison watched. “In total, the stop lasted one hour and 50 minutes.” Jamison’s complaint alleged that Officer McClendon violated his Fourth Amendment rights with an unreasonable search and seizure, that he violated his Fourteenth Amendment right because his race was a motivating factor in Officer McClendon’s initial stop, and finally that McClendon’s conduct physically damaged his car and psychologically damaged Jamison.
Judge Reeves, in keeping with the typical spirit of lower court qualified immunity cases, quickly conceded that he was “required to apply the law as stated by the Supreme Court,” which mandated him to grant summary judgment in favor of Officer McClendon. But what makes this case noteworthy is that Judge Reeves took an additional sixty-six pages to explain the injustice he had no choice but to endorse with his order. In those sixty-six pages, Judge Reeves wrote a meticulous and enthusiastic indictment of qualified immunity. He made no secret that he resented the ruling he was forced to make, and after analyzing the merits of the case, he ultimately concluded that Officer McClendon violated Jamison’s Fourth Amendment rights.
As Judge Reeves notes, Clarence Jamison’s experience with Officer McClendon is but one example of a widespread problem of racist policing that is often fatal for people of color. Such race-based constitutional violations should be particularly subject to § 1983 remedies because the Supreme Court has recognized race as one of the strictly protected classifications under the Fourteenth Amendment and because § 1983 was enacted to address race-based violence perpetrated by the state. Yet, qualified immunity prevents officers like McClendon from ever being held accountable for breaking the law.
Judge Reeves, in his impassioned opinion, also draws attention to the way that qualified immunity is a “Catch-22” where “[i]mportant constitutional questions go unanswered precisely because no one’s answered them before.” Jamison’s case is merely one of countless viable claims of constitutional violations dismissed at summary judgment because an officer is entitled to qualified immunity. Though the District Court here chose to fully analyze the case before it, regardless of the outcome dictated by qualified immunity, courts are permitted to stop at the decision to grant qualified immunity and never reach the merits of the § 1983 claim, thereby “stunt[ing] the development of constitutional law.” Through this process, a constitutional question can only become “beyond debate” excruciatingly slowly, if it even develops to that point at all. This procedural paradox perpetuates the lack of accountability from officials because plaintiffs cannot overcome qualified immunity without a “clearly established” constitutional rule. Consequently, when viewed through the lens of racist policing and police misconduct, qualified immunity is not a tenable legal doctrine.
In addition to the historic and ongoing racially-discriminatory police practices which Jamison exemplifies, police also have a long history of gender discrimination. Similar to race, the Supreme Court has recognized gender as a class subject to heightened protection under the Fourteenth Amendment. Nevertheless, police officers tend to discredit or devalue reports of domestic violence and rape while also failing to appropriately enforce protective orders for women and children. In recent years, women have filed lawsuits against the police for this kind of misconduct, including cases in Illinois, California, Tennessee, New York, and Texas. Yet the road to justice continues to require an uphill battle against qualified immunity and precedent like Gonzales v. City of Castle Rock.
In Gonzales, plaintiff Jessica Gonzales brought a Section 1983 claim against individual police officers and the Castle Rock Police Department for failing to enforce her restraining order against her estranged husband who displayed erratic, abusive behavior. The terms of the restraining order explicitly stated that police “shall use every reasonable means to enforce this restraining order” and the order prohibited the husband from seeing their children without a prearranged agreement. On June 22, 1999, Mr. Gonzales violated the restraining order and “abducted” his daughters from their yard. Ms. Gonzales first called the Castle Rock Police Department at 7:30 PM to report that she believed her husband took their children. When officers were shown the restraining order, they responded that “there was nothing they could do about [it].” At 8 PM, Mr. Gonzales informed Ms. Gonzales that he was at an amusement park with the girls. Ms. Gonzales immediately told this to the police and requested that they arrest Mr. Gonzales in accordance with the restraining order. The police again refused to act and told Ms. Gonzales to wait. Ms. Gonzales called the police twice more between 10 PM and midnight. She was told that two officers would be sent to the husband’s apartment, but they never arrived. Around 1 AM, Ms. Gonzales went to the Castle Rock Police Station. An officer took an incident report but did nothing to enforce the order. Nearly eight hours after Ms. Gonzales first contacted the police, Mr. Gonzales arrived at the police station himself and opened fire. He was killed on the scene. When the police searched his car, they found the bodies of their three daughters. Mr. Gonzales had killed them earlier that night.
Multiple police officers mishandled or flat out ignored Ms. Gonzales’ reports, but the Tenth Circuit held that all of the officers were still entitled to qualified immunity. Since no other court had held “that a reasonable officer would have known that a restraining order, coupled with a statute mandating its enforcement would create a constitutionally protected interest,” Ms. Gonzalez could not overcome the officers’ qualified immunity. Ironically, while the court exonerated the individual officers from the lawsuit on the one hand, the court at the same time thoroughly detailed the officers’ mistakes and misconduct in its analysis of Monell liability—a form of liability that holds municipalities responsible for a policy, practice, or custom that results in a government official depriving a citizen of their constitutional rights. It noted, for example, that the officers were shown a copy of the restraining order that itself explicitly mandated enforcement which they should have taken at its word. The court further observed that while an officer’s responsibility to enforce a restraining order under the Fourteenth Amendment may be undermined in situations involving “split-second decisions in exigent circumstances . . . [t]he officers here  were not faced with the necessity of making an instant judgement in a rapidly evolving situation.” The court conceded that, over an eight-hour period, the officers “repeatedly ignored and refused [Ms. Gonzales’] requests for enforcement.” The court found clear evidence that the police officers violated Ms. Gonzales’ rights to due process, but because of qualified immunity, the officers could not be held liable.
Gonzales is one of many cases in which police engage in gender-based discrimination when women report domestic violence or other forms of gender-based violence. Other scholars have noted the importance of police accountability in fighting gender-based violence and have criticized Gonzales as sanctioning state-inaction in the face of domestic abuse. The officers who failed to serve and protect Ms. Gonzales and her three daughters were shielded from liability, and unfortunately the Supreme Court foreclosed future Section 1983 cases for failing to enforce protective orders when it overturned the Tenth Circuit’s Monell finding against the City of Castle Rock. While the specific allegation brought forth by Jessica Gonzales is no longer available to challenge discriminatory police misconduct, other survivors of violence are still bringing Section 1983 claims against police for violating their right to Equal Protection. As this area of the law develops, qualified immunity as it stands today will continue to be an obstacle to judicial remedies.
Ultimately, Gonzales v. City of Castle Rock and Jamison v. McClendon are powerful examples of how qualified immunity results in injustice. Like Judge Reeves in Jamison’s case, the Tenth Circuit in Gonzales’ case made clear that police had acted inappropriately, but both courts were bound by the untenable constraints of qualified immunity doctrine. In both cases, officers acted, or failed to act, over the course of hours––defying the oft-cited justification for qualified immunity that officer misconduct happens in a split-second. Yet even when decisions are made instantaneously, we should still “expect [police officers] to [make split-second decisions] with respect for the dignity and worth of black lives.”
Qualified immunity severely limits the congressional intention behind Section 1983: to provide redress for victims of constitutional violations committed by the state. In the face of this ultimate goal, protecting individual officers from financial burden and preserving unencumbered police work are invalid justifications for maintaining qualified immunity as a valid defense. While fact patterns will inevitably differ across § 1983 claims, a jury is capable of evaluating whether the officer violated someone’s constitutional right, and an officer should not have “an absolute shield” against liability through qualified immunity. Police must be held accountable for race- and gender- based discrimination that results in a violation of constitutional rights. To make accountability a reality, qualified immunity must be overturned.
Emily Atseff is a J.D. candidate (’22) at Northwestern University Pritzker School of Law and an Executive Editor for the Northwestern University Law Review. She graduated from the University of Wisconsin-Madison, where she received bachelors’ degrees in English and Political Science. She grew interested in qualified immunity after taking classes on civil rights law and working on plaintiffs’ Section 1983 claims during an invaluable internship.