Those Above the Law: Rethinking Qualified Immunity
2025 | Ariel Switzer (Staff Writer)
Introduction
In 2004, Officer Brosseau shot Kenneth Haugen in the back while he was fleeing from the scene of the crime.[1] The defense argued qualified immunity, claiming Officer Brosseau was entitled to it. Qualified immunity is a legal doctrine that protects government officials from being personally sued for monetary damages in civil court, even if it violates a person’s constitutional rights.
After the murder of George Floyd in 2020, the doctrine of qualified immunity and how it could be used as a defense by police officers has re-entered the public eye amid public scrutiny. Tanzin v. Tanvir, Taylor v. Riojas, and Mack v. Williams are just a few cases where qualified immunity was brought into question. For years, both sides have argued whether the doctrine should be overturned. While it allows government officials to perform their jobs without fear of a lawsuit, it should be overturned because it shields government officials from accountability, undermines public trust, and denies victims of constitutional violations the right to seek reparations. Over the past two decades, with an increase in bipartisan legislative proposals, judicial criticism, and state-level reforms, there has been a growing momentum for reforming or repealing qualified immunity.
History of Qualified Immunity
Qualified immunity is a legal doctrine that was first introduced in 1967 in the case Pierson v. Ray.[2] In 1961, a group of black and white clergymen were arrested after sitting together in a segregated waiting room at a bus terminal as a form of protest against segregation. They were then arrested for breach of peace, found guilty, and sentenced to jail based on Mississippi Code §2087.5.[3] This law made it a misdemeanor for individuals to congregate in a public place under circumstances where a breach of the peace might occur. With the officers believing the men were disturbing the peace, they were arrested; however, the charges were later dropped after the court ruled that Mississippi Code §2087.5 was ruled unconstitutional in Thomas v. Mississippi.[4] The statute was challenged in Thomas v. Mississippi and was found to be too broad in its application. The Supreme Court determined that the statute restricted the freedom of assembly. This ultimately allowed for the statute to be denied as a defense in Pierson v. Ray.
Afterward, the clergymen sued the police officers and the judge based on civil rights violations. The Supreme Court ruled that police officers have a defense through qualified immunity if they were acting in good faith with probable cause. This case established the defense of qualified immunity for government officials. Under it, they would be protected against civil lawsuits when performing their duties unless they had clearly violated a constitutional right. No officials were held liable for damages, even when the suspect was later proven innocent. This doctrine completely changed the course of policing in America. It shielded officers from civil lawsuits as long as they could prove they were acting in good faith. After 60 years, a shift occurred within our legal system, highlighting the potential restriction or overturning of qualified immunity.
Cases where Qualified Immunity was Denied
The doctrine's subjectiveness became evident in Tanzin v Tanvir. A group of Muslim men sued the Federal Bureau of Investigation, the Department of Justice, and the Department of Homeland Security, as well as the individual agents, for violations related to the Religious Freedom Restoration Act (RFRA).[5] The men argued that they were placed on the “No Fly” list as retaliation for refusing to be informants for their religious community. Being an informant would allow the federal agents to gather information about the Muslim community through the men. While it may have been useful to investigate crimes and gather information, the men ultimately believed it too invasive a procedure. They also sued the agents in their capacities for monetary damages. According to respondents, “the retaliation cost them substantial sums of money: airline tickets wasted and income from job opportunities lost.”[6] The United States District Court for the Southern District of New York ruled to dismiss the Plaintiffs’ RFRA claims because appropriate relief against the government did not include monetary damages against officials in their capacities. The Plaintiffs appealed, and the Second Circuit reversed in part, determining that RFRA does permit monetary relief against officials in their capacities.
In a unanimous opinion written by Justice Thomas, the Supreme Court disagreed with the lower court's decision. While qualified immunity was not originally brought into the case, the ruling undermined one of the primary justifications supporting the doctrine, which protects law enforcement officers from personal liability when performing their duties in good faith. With the Supreme Court ultimately deciding that the officers were not acting in “good faith,” the plaintiffs were able to sue for monetary damages. The Supreme Court's decision subtly undermined the doctrine by emphasizing the importance of compensating individuals for damages resulting from constitutional violations committed by government officials. This decision challenged the rationale behind the doctrine, showcasing how the Supreme Court is rethinking its parameters. Tanzin v. Tanvir is not the only case where the court reconsidered qualified immunity. In the case of Taylor v. Riojas (2013), the United States Supreme Court denied the officers protection under the doctrine, despite the United States Court of Appeals previously granting the officers that doctrine.
Trent Taylor, a Texas inmate, reported that correctional officers violated his rights. In the first cell, he was confined to a cell covered in fecal matter and did not eat or drink for days. When Taylor moved to the second cell, it had a clogged drain. Consequently, Taylor had held his bladder for over 24 hours but involuntarily defecated on himself. With no drain flow and no bed, Taylor slept naked in sewage. The officers argued they were entitled to qualified immunity because they believed their actions were not clearly established as unconstitutional. The Supreme Court disagreed, arguing that the conditions Taylor was housed in were constitutionally acceptable.[7] No evidence was provided that the conditions of Taylor’s confinement were compelled by necessity. As such, the Supreme Court vacated the granting of qualified immunity. One court system allowed it to be used, while the other denied the defense. This case is an example of where we observe the shift and the possibility that it may come to an end. The decisions made by the Supreme Court in declining to use the qualified immunity doctrine continue to show the shift in courts’ willingness to use it as a defense.
United States Acts that Limit Qualified Immunity
These court cases are not the only examples of hesitancy in using the qualified immunity doctrine. When George Floyd was murdered in 2020, it created a domino effect for both the government and civilians. Tensions grew, and awareness spread over police brutality. New laws were introduced to help combat this aggression on both sides. The George Floyd Justice in Policing Act of 2020 was passed in the House of Representatives but has yet to pass in the Senate.[8] The bill addresses a wide range of policies and issues about policing practices and accountability. The goal of the bill is to increase law enforcement’s accountability for misconduct, restrict the use of certain police tactics, and help establish practices and requirements to keep both officers and civilians safe. The proposal does not intend to deny qualified immunity outright but instead aims to limit it as a defense to liability in private civil action against law enforcement. As a result, it would make it easier for civilians to bring charges against police officers and allow them to recover damages in civil court. Congressional legislation, like the George Floyd Justice in Policing Act, can abolish qualified immunity. With the backing of multiple representatives, it is a possibility that we may see it abolished in our lifetime.
This is not the only bill that is actively being pushed that would limit the qualified immunity doctrine. The Ending Qualified Immunity Act was originally introduced in 2020 after the murder of George Floyd.[9] The goal of the act was to restore Americans’ ability to gain relief from state and local officials who violated citizens’ legal rights. It would allow civil suits against police officers if citizens believed they were being deprived of their rights. The passing of this act would ban the qualified immunity doctrine from being used by any government official. It originally stalled but was recently reintroduced in 2023 and has yet to advance past the House of Representatives. While this act has yet to be passed, the fact that it was even introduced shows the support that Congress officials have for abolishing qualified immunity.
Nevada Supreme Court
The federal level is not the only place we see this shift. Some states have begun to take their stance against qualified immunity. In 2022, the Nevada Supreme Court ruled that it can not be used as a defense in state constitutional lawsuits. Nevada is one of four states that have banned it as a defense for police officers.
The case Mack v. Williams changed the precedent in the state.[10] In 2017, Sonjia Mack visited her boyfriend at High Desert State Prison. When she arrived, two correctional officers pulled her to another building. There, a third and fourth officer strip-searched and interrogated her about drugs. Even after there was no alleged contraband found, she was indefinitely suspended from the prison. She alleged that they violated her federal and state constitutional due process and search-and-seizure rights, which were intended to ensure fair legal procedures and require warrants based on probable cause. Mack received none of these protections. When the officers tried to use qualified immunity as a defense, the court denied the claim, stating, “it does not shield defendants from state law claims.”[11] While this case is only relevant to Nevada, it highlights a shift seen in recent years regarding qualified immunity. Support for the abolition is increasing not only at the federal level but also at the state level.
Conclusion
While qualified immunity has been used to shield officers from the consequences of their crimes, some have argued that there are valid concerns when trying to limit it. Defenders of qualified immunity warn of the catastrophic effects of ending it. Courts would be filled with frivolous charges, officers would be bankrupted for innocent mistakes, and it would hinder police recruitment. The doctrine allows officers to make split-second decisions without fear of retaliation. Doctor Joanna Schwartz, a professor of law at the University of California, Los Angeles School of Law, found that even when found liable, officers were only personally responsible for 0.02% of the dollars paid to plaintiffs in police misconduct suits.[12] Qualified immunity offers certain protections and benefits; however, the widespread instances of misuse have led to a lack of accountability within our justice system. With instances of abuse and mistreatment being well documented, are the benefits for police officers worth more than the peace of mind of civilians?
The slow pace of government action on repealing qualified immunity reflects a broader pattern of delay in implementing legal and institutional reforms. With the growing bipartisan support and judicial criticism, it is evident that the doctrine could be limited. Each case being decided sets a precedent regarding the support for it. Each time a case is sent for appeals, it could be the turning point in the abolishment of qualified immunity. Given that laws are constantly being introduced to eliminate it, it is not surprising that it may be overturned. While most of the bills mentioned have yet to pass the Senate, the fact that it was introduced shows a turning in the judicial tide. Until lawmakers begin to act decisively, qualified immunity will remain a shield for government officials at the expense of civil rights and public trust.
Sources
Brosseau v. Haugen, 543 U.S. 194 (2004)
Pierson v. Ray, 386 U.S. 547 (1967).
Mississippi Code Ann. §2087.5 (1942).
Thomas v. Mississippi, 380 U.S. 524 (1965)
Tanzin v. Tanvir, 592 U.S. ___ (2020)
Ibid.
Taylor v. Riojas, 592 U. S. ____ (2020)
George Floyd Justice in Policing Act of 2021, H.R. 1280, 117th Cong. (2021)
Ending Qualified Immunity Act, H.R. 7085, 116 Cong. (2019-2020)
Mack v. Williams et al, No 2;2018CV00799- Document 27 (D. Nev. 2019)
Ibid.
“What Happens if We Eliminate Qualified Immunity? | UCLA Law,” UCLA School of Law, n.d.,
