Police Qualified Immunity is a Dangerous Loophole

By Yuliya Shyrokonis

Despite a global pandemic, protestors across the United States took to the streets last summer to condemn widespread police discrimination and brutality. Data show that police forces killed 1,096 Americans in 2019. Black Americans were three times as likely to be killed by police per capita than white Americans, and these statistics don’t include a plethora of nonfatal, but still excessive, use-of-force incidents. Meanwhile, former officers regularly highlight a police culture of callous and illegal violence against civilians, where those who speak out are at best ignored, and at worst punished.

The legal doctrine of “qualified immunity” helps facilitate police brutality by shielding officers from accountability. Qualified immunity is a federal doctrine that protects government employees, including members of law enforcement, from personal liability for discretionary actions performed on the job. In other words, it keeps officers from facing punishment for use of excessive force unless their actions are judged to have violated established legal norms.

Since its introduction in 1967, the qualified immunity doctrine has had a grim history as a frequent defense for police who use excessive force. Since 2005, courts have increasingly granted immunity in excessive force cases, and this trend is steepest in cases where the victim was unarmed. In fact, in more than three dozen instances, officers were granted immunity even though their actions were deemed illegal.

This is because in order for an officer to be denied qualified immunity, the case must be very similar to a preexisting incident in which immunity was also denied. No matter how egregious a case, if no prior, similar case exists that ended in a denial of immunity, judges can continue to grant immunity. Sometimes, courts avoid ruling on the question of whether excessive force was used altogether and focus instead on whether an officer’s behavior was clearly established as unlawful. This avoids setting an immunity denial precedent and allows many similar instances of police brutality to go unpunished.

The qualified immunity doctrine prevents victims of police violence and their loved ones from attaining justice. It also creates a feedback loop wherein officers are aware of their own immunity, emboldening them to act more rashly and forcefully than they otherwise might. By allowing police to avoid accountability, qualified immunity erodes the judicial system as well as public faith in it.

What can we do about the specter of qualified immunity while still allowing police forces to perform their essential functions and help keep communities safe? One option is to accept a broader definition of legal precedent, with a wider range of “acceptable” prior cases. This would mean that when judges review qualified immunity cases, they would be able to draw from a larger pool of existing rulings to claim that there is a precedent for denying immunity, rather than being limited to referencing only uncannily similar prior examples. However, this option would not rein in judges who avoid ruling against officers in excessive use of force cases so as not to create legal precedent—these judges may even rule in favor of officers more in order to avoid it.

Another potential option is removing the legal precedent component of the law entirely. Rather than requiring that immunity can only be denied in cases with a similar precedent (which is itself a cycle with no clear beginning), courts could be given the power to judge excessive force cases independently of one another, granting or denying immunity based solely on the facts of a given incident. Yet while this would remove a major legal obstacle, it would still fall short of addressing the larger ethical violation inherent in giving certain members of our society—those tasked with upholding law and order—the blanket right to dole out extrajudicial violence to anyone they choose. Moreover, even if many excessive force cases were to end in repercussions for the offenders, justice would still be severely limited by the fact that only a fraction of such cases actually make it to court.

But there is a third option: removing the qualified immunity doctrine from policing entirely. Doing so would make officers just as liable for violent acts they commit as anyone else, creating tangible incentive for police to be maximally cautious when applying force. By eliminating qualified immunity, we could end officers’ unjust and paradoxical authority to brutalize those they are sworn to protect and help make our communities safer for all.

Supporters of qualified immunity say that police work carries an inherent risk of injury or death to others, and that officers should have the freedom to make split-second decisions without fear of lawsuits. But there is an ocean between recognizing the need for force and removing nearly all checks on it. Police should be just as hesitant as anyone else to use injurious, let alone lethal, force. Qualified immunity, however, circumvents this logic and replaces it with a blind trust in law enforcement that is statistically wholly unjustified.

If it sounds like removing qualified immunity would prevent police from doing their jobs, consider another profession laden with the risk of serious injury or death to those it is meant to help: medicine. Like law enforcement officers, medical staff provide critical and often lifesaving services that protect us from harm. Yet it is well-known that this responsibility carries with it a significant risk of injury to patients. The legal response to this risk is medical malpractice laws, which aim to protect individuals from health workers’ mistakes, whether accidental or simply negligent. Yet in the case of police, the law does the exact opposite, protecting officers from liability even in cases where wrongdoing is clear and victims’ injuries are severe or even fatal. It’s past time for this to change.

Removing the qualified immunity doctrine for law enforcement would increase police officers’ liability in cases of police brutality, discourage officers from employing dangerous maneuvers against members of the public, and begin to reverse the judicial system’s long history of choosing police favoritism over public good (and, ironically, safety). Reforms are already occurring across the country—New Mexico eliminated qualified immunity in April, and the New York City Council passed a bill in March that would limit its practice. As the public demands radical changes to the policing system, removing this highly-controversial doctrine nationwide may be more achievable today than ever before.

“The Police Enter” by Jared Rodriguez/Truthout is licensed under CC BY-NC-ND 2.0.

Yuliya Shyrokonis is a first-year student in the University of Michigan Joint Doctoral Program in Social Work and Social Science studying domestic and sexual violence. She is interested in researching novel interventions for perpetrators and survivors of violence.