Qualified Immunity: The Fundamental Bargain that Makes Policing Possible
Effective law enforcement can’t exist in America without it.
Qualified immunity has taken on a negative connotation among activists and advocates for police reform in the United States. Chief among the reasons for this is the term immunity, which makes it sound as though police officers possess a get-out-of-jail-free card.
In part because of this misconception, some have called for qualified immunity to be abolished altogether1.
But what does qualified immunity actually mean?
Ultimately, it protects police officers “from civil liability unless they violate an individual’s statutory or constitutional rights”2.
It’s important to note one of the two words that make up this legal protection afforded to police officers is the term qualified.
Police officers do not receive the unearned luxury of being completely immune from their actions without question. By law, they have to be acting in good faith and within the purview of their job3. Furthermore, qualified immunity only covers civil liability. Not criminal acts perpetrated by police officers.
With the basics of qualified immunity established, I’d like to explain what qualified immunity means for local law enforcement, and why—without the protection it provides—police officers wouldn’t be able to do their jobs.
What Qualified Immunity Means
While some might see the word immunity in this context and think the police are above the law4, qualified immunity simply means police officers are entitled to protection from civil liability due to the unique nature of their job.
If you call 911 because a criminal is breaking into your home, you’re asking someone with the proper training to deal with the problem, rather than dealing with it yourself. At a basic level, that’s no different than calling a plumber when your faucet is leaking.
Like the plumber, the police officer you call is expected to solve your problem. Unlike the plumber, the problem you expect the police officer to solve involves Constitutional rights and—in the most extreme cases—split-second life and death decisions.
You, as a 911 caller, have effectively reduced your civil liability regarding the outcome of a potentially dangerous situation by transferring that liability to someone else. Would it be unreasonable for that someone else to receive increased protection from the increased liability you’ve just placed upon them?
That’s the foundation of qualified immunity. It’s hardly perfect, but it provides a pathway for the unique job of policing in an imperfect world to exist.
Why Qualified Immunity Is Necessary
It would be viewed as unreasonable in any other labor context if an employer expected their employees to take on additional risk due to the nature of their job. At least not without compensation for that additional risk. Labor unions throughout history have called for strikes over similar, if not better, working conditions5.
If a police officer is unprotected from civil litigation derived from the inherent risk of responding to emergencies, no one with a rational mind would become a police officer.
To solve this problem, qualified immunity seeks to provide a margin for error. A margin that is needed because humans are imperfect beings who make mistakes. So long as the mistake happens in the mind rather than the heart—acting in good faith, as it is described in legal precedent—legal protection against civil liability is warranted.
Where We Will Be Without Qualified Immunity
There would be a mass exodus of officers from the law enforcement profession due to increased exposure to potential lawsuits resulting from even the most innocuous of 911 calls if qualified immunity were abolished.
The inevitable result of this exodus would be a desperate recruiting effort on the part of police agencies across the country.
A preview of this is already happening in the wake of the Defund the Police movement6. When recruiters become desperate for candidates to fill positions in a profession that has been in an unprecedented recruiting drought for several years, standards will suffer in favor of filling the depleted ranks.
People who have no business engaging with the public as law enforcement officials will be permitted to enter the profession because qualified candidates are disinterested in taking on a less than thankless job.
As if in response to this lack of qualified candidates applying to the once noble profession of law enforcement, the International Association of Chiefs of Police (IACP) said the following about recruiting new officers7:
…agencies no longer disqualify candidates for certain instances of past drug use, with some even choosing not to address it with the candidates at all. Of course, changing policies to lower certain standards does come with risks, so agencies should assess their current policies to determine where the largest barrier to recruitment lies and how can it be revised in the most risk-averse way.
Situations like the horrific beating to death of a man in Memphis, Tennessee8 will become more frequent as less qualified candidates are brought in under these reduced standards.
The above excerpt regarding drug use may not concern most people, particularly those who hold a more libertarian view on drug use. But that is just one of the many standards being lowered to attract more candidates to apply for positions in a dwindling profession.
It’s important to debate the finer points of qualified immunity and discuss what changes could be made to avoid protecting police officers when they do objectively bad things. But eliminating the precedent altogether would be akin to throwing the baby out with the bathwater.
References
1. Hon. Pressley, A. Ending Qualified Immunity Act. House of Representatives. https://pressley.house.gov/sites/pressley.house.gov/files/Ending%20Qualified%20Immunity%20Act%20One%20Pager.pdf
2. Gordon, Elias, & Seely LLP. What is Qualified Immunity? Gordon, Elias, & Seely LLP. https://gesinjuryattorneys.com/what-is-qualified-immunity/
3. NCSL. (2021, January). Qualified Immunity. National Conference of State Legislatures. https://www.ncsl.org/civil-and-criminal-justice/qualified-immunity
4. Craven, J. et al. (2022, February). How Qualified Immunity Hurts Law Enforcement. Cato Institute. https://www.cato.org/study/how-qualified-immunity-hurts-law-enforcement
5. Kiger, P. (2023, May). 10 Major Labor Strikes Throughout US History. The History Channel. https://www.history.com/news/strikes-labor-movement
6. Smith, M. (2022, December). As Applications Fall, Police Departments Lure Recruits With Bonuses and Attention. New York Times. https://www.nytimes.com/2022/12/25/us/police-officer-recruits.html
7. IACP. The State of Recruitment: A crisis for law enforcement. International Association of Chiefs of Police. https://www.theiacp.org/sites/default/files/239416_IACP_RecruitmentBR_HR_0.pdf
8. Rojas, R. (2023, January). Tyre Nichols Cried in Anguish. Memphis Officers Kept Hitting. https://www.nytimes.com/2023/01/27/us/tyre-nichols-video-memphis.html
Very good article on a widely misunderstood subject.
Brilliant work. Qualified immunity is not the boogyman the activists make it out to be. Also, doesn't qualified immunity apply to ALL public employees?