What Qualified Immunity Is, and Isn’t

Qualified Immunity

Qualified immunity is a defense against civil lawsuits over money. It gives police officers partial immunity in civil court, not in criminal court, which has a different set of rules. It also cannot protect police officers from administrative discipline, including termination.

Qualified immunity was first invented by the Supreme Court in Pierson v. Ray (1967) 386 U.S. 547. It’s only about 50 years old. It gave officers immunity from money damages when they were acting with “good faith and probable cause” in making arrests. The Court has tinkered with the definition over the years, after all, they made it up in the first place, but the point has remained the same: police shouldn’t have to pay damages for violating rights when they were acting in good faith. Acting in good faith means that an officer must not intend to violate the constitution. But the constitution is interpreted in different ways over the years. What is constitutional today may be unconstitutional tomorrow. For example, it used to be constitutional to question a suspect without a Miranda warning. Then one day it wasn’t. Should a criminal be able to sue for failure to give the Miranda warning before the Miranda case was decided by the Court? Of course not, how could the officer know he was violating the constitution? The Supreme Court has argued with itself over what it means to act in “good faith” when constitutional law is unclear.

Today, qualified immunity is available if a reasonably well-trained officer would not know that her precise conduct would run afoul of that principle and violate the plaintiff’s rights. (Anderson v. Creighton (1987) 483 U.S. 635.) That’s what good faith means now. Reasonably trained officers don’t have to be constitutional scholars, as long as they are not deliberately violating the constitution.

Examples of Qualified Immunity

One example is the Miranda example above. Here’s another example of how this works. In 1983, an FBI agent conducted a warrantless search of a home. They wrongly believed that a bank robbery suspect on the run might be in the house. In this circumstance, a search is allowed under the exigent circumstances exception to the Fourth Amendment. The family that lived in the house sued, claiming that their Fourth Amendment Rights were violated. The officer responded, even if they were, I didn’t intend to violate your rights, and a reasonable officer would have believed this was a perfectly fine “exigent circumstances” search. The Court held that the officer was right, he could not be sued. (Anderson v. Creighton, supra.)

Here’s another example. Today, it is legal for a police officer to use force to overcome a suspect’s resistance or to gain compliance with a lawful order. Imagine that an officer at a protest lawfully orders protesters to go home. One protester doesn’t go home, and an officer uses force to get him to comply with the dispersion order. The protester sues the officer. At the time of the protest, what the officer did was legal. But while the protesters case was pending, the Supreme Court rules that force cannot be used to enforce a dispersion order: a new rule of law. Since it’s new, the officer could not have known about this rule and thus couldn’t comply with it. The officer should get qualified immunity because he was acting in good faith.

What Qualified Immunity Isn’t

If an officer uses force against you, and you are prosected for battering the officer, you can always claim excessive force as a defense. Qualified immunity doesn’t enter into the picture. In fact, it is not relevant in criminal proceedings at all.

Qualified immunity doesn’t protect an officer from internal discipline. It can’t prevent an officer from being fired. It can’t prevent a citizen complaint.

Finally, qualified immunity doesn’t protect officers who violate the constitution in bad faith. In the excessive force example above, the officer would not get qualified immunity because the case law is clear that excessive force violates the Fourth Amendment. Virtually all of the rights that you think of, like the Miranda right or the Massiah right. Qualified immunity is a narrow form of immunity that protects officers when the law is changing or unclear.

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