Eliminate the barrier of qualified immunity for civil rights violations committed by government employees at the federal, state, and local level.
- New York
- New Jersey
- Expanding Pathways to Accountability: State Legislative Options to Remove the Barrier of Qualified Immunity
- National Police Accountability Project One Pager: Qualified Immunity
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Frequently Asked Questions
- Will ending qualified immunity negatively impact recruitment and retention of police officers?
- Will ending qualified immunity expose police officers to personal liability?
- Don’t we need qualified immunity to protect police officers who are making split-second decisions about public safety?
- What about protecting officers who accidentally harm a civilian?
- Won’t eliminating qualified immunity be prohibitively costly, either for officers, their employers, or both?
- If we eliminate qualified immunity, will law enforcement officers become apathetic or afraid to effectively do their jobs for fear of being sued?
1. Will ending qualified immunity negatively impact recruitment and retention of police officers?
No. There is no evidence that qualified immunity alone will negatively impact retention and recruitment of police officers. Moreover, the police officers we want to recruit and retain are not individuals who are drawn to a job by the promise of no accountability to the people they nominally serve and protect.
2. Will ending qualified immunity expose police officers to personal liability?
No. Police officers are almost always indemnified for alleged misconduct. In the largest study of its kind, Professor Joanna Schwartz showed that 99.98% of all dollars paid to plaintiffs alleging civil rights violations by law enforcement came out of the government’s pocket, not from individual officers.
3. Don’t we need qualified immunity to protect police officers who are making split-second decisions about public safety?
No. Qualified immunity only authorizes lawsuits when an officer violates someone’s constitutional rights. Our legal standards for evaluating if a constitutional rights violation has occurred are already highly deferential to police discretion to make split-second decisions.
Under the Fourth Amendment reasonableness standard an officer can mistakenly determine that force is necessary without facing constitutional liability so long as their mistake is reasonable. The Fourth Amendment and its state analogues are not unique in creating a demanding burden to prevail on a constitutional claim. Civil rights plaintiffs have a high threshold to meet in virtually every constitutional claim they pursue.
4. What about protecting officers who accidentally harm a civilian?
Qualified immunity only applies when a police officer has violated someone’s constitutional rights. Police officers who are “legitimately performing their duties” (i.e. acting lawfully) do not need qualified immunity because, by definition, they are not violating anyone’s rights in the first place.
5. Won’t eliminating qualified immunity be prohibitively costly, either for officers, their employers, or both?
No. While qualified immunity reform will make it possible for additional victims of police misconduct to recover compensation, that does not mean there will be a significant net rise in costs.
It should first be acknowledged that forcing communities to contend with qualified immunity will not save costs but shift them to the people injured by police misconduct. Victims of police brutality experience tangible consequences. For instance, they may have medical costs, be forced to miss work, or be injured so severely that their earning potential is permanently reduced. Barring suits through the doctrine of qualified immunity forces victims to bear the cost of police misconduct rather than the officers and law enforcement agencies responsible for their suffering.
Should we choose to evaluate cost from a litigation defense standpoint, qualified immunity still does not save government defendants money. First, asserting qualified immunity does not automatically dispose of a lawsuit. While a government actor can move to dismiss a case on qualified immunity grounds in the initial stages of litigation, many cases proceed to discovery and even trial before the defense is granted. Additionally, qualified immunity has the effect of increasing costs in some cases due to the multiple interlocutory appeals a defendant can pursue challenging the district court’s denial of the defense.
Fears that state and local governments will face insurmountable expenses related to an influx of new claims currently precluded by qualified immunity have no concrete basis. Indeed, other states have already eliminated qualified immunity for state civil rights claims. Montana also eliminated qualified immunity defenses for state constitutional actions against law enforcement officers over a decade ago without any significant changes in the number of cases.
Finally, it is important to note that an increased risk of liability will ultimately help save government entities money in the long run through deterrence. One of the core policy functions of permitting private enforcement of civil rights statutes is to deter future violations. By enhancing opportunities to hold government officials accountable for misconduct, the proposed state bill will deter future constitutional violations, obviating the cost of defending against lawsuits and settlement payouts.
More details and citations for all of this information can be found in NPAP’s white paper: State Legislative Options to Remove the Barrier of Qualified Immunity.
6. If we eliminate qualified immunity, will law enforcement officers become apathetic or afraid to effectively do their jobs for fear of being sued?
Qualified immunity is currently not protecting police officers who are making reasonable, good faith decisions in carrying out their duties. Officers who follow their training and department policies, and who are doing their job “by the book,” do not need qualified immunity—Fourth Amendment law provides that safeguard. Only a police officer who profoundly misunderstood their Fourth Amendment training would pull back from reasonably carrying out their duties because qualified immunity was eliminated.
Moreover, there is no evidence that police officers are apathetic or afraid to perform their jobs in states that have already eliminated qualified immunity defenses. That argument denigrates dedicated, law-abiding law enforcement officers. It is also important to note that many people employed in high stakes professions are able to effectively do their jobs even though they face financial liability for misconduct and mistakes. There is no reason to assume that a police officer would respond to an increased risk of liability differently than a doctor.