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Policing the Police and Politicians


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Qualified Immunity

In the wake of unrest during 2020, questions have come to light with regard to how the existing qualified immunity law regulates the conduct of local police officers and political officials.

Qualified immunity is a judicially created doctrine sheltering public officials performing discretionary functions from civil liability. The doctrine plays a role in the defense of civil rights lawsuits against federal law enforcement officials under the Bivens doctrine and against state and local police under 42 U.S.C. § 1983 (Section 1983).

The doctrine is very favorable to states and local governments. “Clearly established” means that, at the time of the official’s conduct, the law was sufficiently clear that every reasonable official would understand that what he or she is doing is unconstitutional. According to the Supreme Court, qualified immunity protects all except the plainly incompetent or those who knowingly violate the law.

The Supreme Court has offered multiple justifications for qualified immunity, including that it encourages government officials to “unflinching[ly] discharge . . . their duties” without worrying about being sued for actions a court has not yet held violate the constitution.

With regard to its role in civil lawsuits concerning violations of constitutional norms regulating the police, defenders of the doctrine have suggested that qualified immunity plays an important role in affording police officers some level of deference when making split-second decisions about whether to, for example, use force to subdue a fleeing or resisting suspect.


Government officials are entitled to qualified immunity so long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

The Supreme Court has observed that qualified immunity balances two important interests—“the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

The immunity’s broad protection is intended for “all but the plainly incompetent or those who knowingly violate the law” and to give government officials “breathing room” to make reasonable mistakes of fact and law.

According to the Supreme Court, the “driving force” behind qualified immunity was to ensure that “insubstantial claims” against government officials were resolved at the outset of the lawsuit.

Qualified immunity, when applied, provides immunity not only from civil damages, but from having to defend liability altogether.

Courts apply a two-part analysis when determining whether an official is entitled to qualified immunity:

(1) whether the facts alleged by the plaintiff amount to a constitutional violation, and

(2) if so, whether the constitutional right was “clearly established” at the time of the misconduct.

Recent Supreme Court precedent provides flexibility in applying this standard, granting courts the discretion to decide which prong to first address in light of the circumstances of the facts of the case at hand. Whether a right is clearly established depends on whether “the contours of a right are sufficiently clear” so that every “reasonable official would have understood that what he is doing violates that right.”

When conducting this analysis, courts look to see whether it is “beyond debate” that existing legal precedent establishes the illegality of the conduct.” Qualified immunity is available for local and state government officials such as, for example, law enforcement officers, teachers, or social workers.

Federal officials who face liability in cases brought under the Bivens doctrine—which allows for individuals to recover for the deprivation of constitutional rights against federal officials in a few, limited circumstances—may also claim qualified immunity.

Critics of the doctrine have questioned its legal origins and have argued that its practice has provided too much deference to the police at the expense of accountability and the erosion of criminal suspects’ constitutional rights.

Read More About Qualified Immunity Here

Is Qualified Immunity Coming to an End State by State?

States are starting to eliminate qualified immunity. It first started in Colorado and now the Governor Governor Lujan Grisham of New Mexico has signed legislation to end it becoming the second state to do so.

According to a report on the innocenceproject.org site

SANTA FE, NM (April 7, 2021) – Today, New Mexico became the second state in the nation to abolish qualified immunity. Governor Lujan Grisham signed the New Mexico Civil Rights Act into law.

In addition to eliminating qualified immunity, this historic legislation will allow New Mexicans – including the wrongfully convicted – to recover damages from the government when their constitutional rights are violated while also providing incentives for government employees to respect and uphold constitutional rights.

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