I don’t know about you, but holidays and family events are very interesting these days. I don’t care how hard I try; I always seem to land in an argument that is more heated than Cousin Leo’s homemade salsa. Topic of contention? Politics and current events, of course! And on top of that list is the never-ending accusatory discussion about police brutality and human rights. Each time it’s the same banter and the same question: Do the police have qualified immunity? I’ve decided to answer the question once and for all, but I’m not so sure I like the answer I found.
Unless certain stipulations exist, qualified immunity protects government officials from most legal civil actions taken against them. So, the short answer to the question is yes, police have qualified immunity. However, officers are not immune to criminal charges, and there are a few, specific circumstances where qualified immunity doesn’t inoculate them from court proceedings. Police are not allowed to infringe upon a citizen’s constitutional rights; but, in order to contest police action, one must present facts that indisputably demonstrate such violation. Qualified immunity law is largely subjected to interpretation, therefore the burden of proof often errs on the side of the cop.
Despite the protests from millions of Americans, police rarely pay retribution for their actions. Although the lack of penalty is maddening to most, qualified immunity has served a purpose for police officers. The law, as we know it, primarily prevents government officials from being held liable for perceived harm or damages. The immunity is only granted to individuals and not the government, as a whole. While we’re familiar with seeing police officers shielded by this doctrine, members of the executive branch of the government also qualify for the legal safeguard. My research focused on police immunity.
Why Does Qualified Immunity Exist?
The first mention of civil rights protection came not long after the Civil War ended. This was a time when Ku Klux Klan activity was prevalent and freed slaves were often subjected to extreme violence from the Klan. Unfortunately, some of the police force were also members of the white supremacist organization. That duality presented a conflict of interest as law enforcement agents were supposed to protect the public; yet, those racist officers often applied brute force when engaging in altercations with the newly freed slaves. Laws were created to allow the public to sue police offers and law enforcement members could be convicted with crimes. This prevented the law enforcement agents from abusing their power, and when the law officers were held accountable, the violence abated somewhat.
Tables were turned one hundred years later. At that time, police needed protection from civil lawsuits. It was necessary. The public was taking advantage of the legal limitations that were meant to govern police behavior. That resulted in government officials being caught up in an unprecedented number of court cases. The litigation was mostly propagated by extremists whose lawsuits targeted inconsequential transgressions by public officers. Those cases were quite petty.
Excessive litigation leached the government of time and money. While public servants were wrapped up in court proceedings, they were prevented from attending to their occupational tasks. Legal battles also drained taxpayer money from its intended governmental purpose. This was an effective way for the extremists to prevent the government from doing its job.
Their strategy worked. The court cases caused a severe interruption of governmental action. Something had to be done to stop the unneeded distraction. Simply put, the lawsuits needed to cease. That’s when qualified immunity, as we know it, was birthed. In 1967 the Supreme Court made a ruling to prevent these ridiculous court cases from being initiated. The doctrine defining qualified immunity is still in place today.
When Have Police Officers Been Protected With Qualified Immunity?
Most of our interactions with police officers are only at local donut shops or from the driver’s seat of a vehicle. All in all, we typically don’t have first-hand knowledge of police violence or abuse of power. Our understanding is often limited to what we view in the news or see on social media, and the most publicized cases fuel most arguments about police brutality. Anger flares and emotions fly high when we hear of yet another George Floyd or Brittany Dunn case. Each time an officer is found not guilty and leaves with only a slap on the wrist, there are cries of injustice and sobs of defeat.
We are outraged that these so-called peace officers were shielded from the law through their qualified immunity, but the infamous cases that draw the headlines are only a small sample of the large number of cases where qualified immunity is upheld. There is a long list of court rulings that have upheld qualified immunity for police officers. Here is a short list of instances when police actions were challenged, and qualified immunity was granted to the law enforcement officers.
- A police officer’s dog bit a man after the alleged perpetrator raised his hands in surrender.
- An officer transported a “mentally-infirmed man” to another jurisdiction while claiming the man was a vagrant and should be removed from his precinct.
- A cop shot a 10-year old boy while trying to shoot a non-threatening family dog.
- A policeman shot a car thief six times after the man had raised his hands in surrender.
- Cops searched a property based on a faulty warrant or without any warrants at all.
Of course, these cases pale in magnitude to George Floyd or Brittany Dunn, but the negative impact to those involved was substantial.
How Does a Cop Lose Qualified Immunity?
I literally gasped when I learned about all of the cases that were dismissed due to qualified immunity. It seems so unfair!
This skewed favor is in place because, to win a case against a cop, you must unequivocally demonstrate that a well-known, clearly established constitutional right has been violated. This is harder than it appears, but three conditions might warrant a judge to deny qualified immunity to a public official.
First, there must have been at least one previous case that set precedence for removing qualified immunity. This happened in November 2020 when two officers were denied qualified immunity protection after they tased, punched, and kick an unarmed, schizophrenic man who was having a mental crisis. Even though the man was not charged with a crime, he suffered 8 minutes of physical abuse, incurred 26 blunt-force injuries, and died two days later in a hospital. The courts determined the officers used excessive force on the victim. Because previous courts had ruled that excessive force was a cause to deny qualified immunity, the Fifth Circuit U.S. Court of Appeals followed suit and did not grant immunity to those officers.
Of course, there is not always direct precedence. When that happens, immunity can be removed if there is an undeniable correlation between two cases. This happened when the Supreme Court heard a case where prison guards handcuffed Alabama inmates to a hitching post in the middle of summer. The inmates were sunburned and only given limited water. While there had never been a case about handcuffing people to a hitching post, there have been previous cases about malicious acts of violence. Because this case was “materially similar” to others, immunity was withheld according to the color of the law.
The last condition is virtually never met. In this case, constitutional verbiage must be explicitly clear and require no interpretation. This is rare. There are very few explicit constitutional rules. The only clear law that comes to mind is “a president must be at least 35 years old.” There is no way that law could be debated; however contested immunity is often complicated, so this condition can’t apply.
Conclusion – Do Police Have Qualified Immunity?
There are only a few circumstances when a court does not allow qualified immunity. If you watch any cop show, you’ll recognize them. They are false arrest, malicious prosecution without probable cause, and use of excessive force or violence. Still, we all know there are plenty more situations that should justify legal action against the police. Misconduct is obvious, but the courts have made it too difficult to sue or convict officers for unlawful behavior.
I believe the pendulum has shifted back to post-Civil War era policing. We’re seeing police officers use unwarranted violence against people, and the brutality often is focused on minorities.
While once justified, it looks as if qualified immunity has strayed from its intended purpose. Petty lawsuits are no longer an issue, and unfortunately, compelling legal actions are being denied because of the 1967 doctrine. Perhaps it’s time to make laws that would reflect post-Civil War times because we need protection from power-hungry officers.
It goes without saying that qualified immunity needs scrutiny and giving allowances for civil suits would limit the actions of incompetent, violent police officers. We just can’t regress to living in a forcefully governed society. People who are mistreated need compensation for their abuse.
Do police have qualified immunity? Yes. Should they? Sometimes, but not as often as it is granted in today’s courts.
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Teacher by profession, author by choice, Robin E. Smith has freelanced multiple projects including ghostwritten memoirs and business start-up courses. When not writing, she’s likely camping or kayaking with friends and family near Cincinnati, Ohio. You see her musings by visiting her twitter handle @Legacy14Twelve.