Qualified immunity is a legal defense that allows government officials to escape civil lawsuits when they are accused of violating constitutional rights. Opponents say it lets bad government actors escape accountability. But supporters of the defense say it’s necessary to protect government employees from frivolous lawsuits.

Federal courts created a qualified immunity defense out of thin air, making it nearly impossible to hold law enforcement officers responsible for actions taken in the line of duty. Initially, QI was only a legal defense for federal agents in federal cases. State cases were adjudicated in state court under the state constitution’s bill of rights. But the incorporation doctrine has turned every case into a federal case meaning that virtually every government employee, from FBI agents to local dog catchers, is covered by the qualified immunity defense.

In effect, qualified immunity stops people who have had their property damaged or who have been injured by government employees from being reimbursed for the damages. In fact, it allows a judge to dismiss a case before it ever goes before a jury.

In order to move ahead with a suit, the plaintiff must establish that it was “clearly established” that the government employee’s action was unconstitutional. The “clearly established” test erects an almost insurmountable hurdle to those trying to prove excessive force or a violation of their rights. In order to overcome the defense, the defendant must find a previous case where a court held that officials violated another person’s rights in almost the exact same way.

The Institute for Justice provides one example of how difficult this is. One officer who sicked his dog on a suspect was granted qualified immunity because the suspect was sitting down with his hands up instead of lying on the ground.

Qualified immunity doesn’t just protect police officers. It covers all government employees, including inspectors, elected officials, and even IRS agents.

Supporters of qualified immunity argue that it protects government employees from being personally bankrupted over a reasonable split-second decision.

So, would ending qualified immunity open the door to a flood of spurious lawsuits?

The Institute for Justice says the answer is an “unequivocal no!”

“Ending qualified immunity would not end the ability for officers and officials to argue that they behaved reasonably when making a split-second decision. That protection is built into the Fourth Amendment of the U.S. Constitution. There are several procedural rules specifically designed against meritless lawsuits.”

Furthermore, individual officers rarely pay if they lose a lawsuit. One study showed that the government paid 99.8 percent of the time.

The bottom line is qualified immunity prevents government officials from being held accountable for their actions.

The best way to end qualified immunity is for states to create a process to sue police officers in state court under the state constitution without the possibility of “qualified immunity” as a defense.


Mike Maharrey

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