Qualified immunity is a judicial doctrine developed by the Supreme Court in the late 1960s, which shields state actors from liability for their misconduct when they break the law. Under the doctrine of qualified immunity, the Court has held that defendants can’t be sued unless they violated “clearly established law.” Qualified immunity only matters when a public official has, in fact, violated someone’s federally protected rights.

In New York, qualified immunity has repeatedly blocked recovery for plaintiffs when their  constitutional rights were violated but no factually analogous case had been decided by the Second Circuit or United States Supreme Court. In one case, officers who violated the Fourth Amendment avoided liability for using excessive force because the plaintiff said “ouch”, “ow”, and cried to communicate she was in pain instead of making the type of clear verbal complaint that created a “clearly established” violation in a prior factually similar case.[1] In another case, the Second Circuit held officers were entitled to qualified immunity for unconstitutional arrests despite finding there was no legal basis to detain plaintiffs because a factually analogous case had not been decided in the jurisdiction.[2]  In short, qualified immunity consistently protects officers because what they have done had not been done before in the Second Circuit.

[1] Cugini v. City of New York, 941 F.3d 604 (2d Cir. 2019)

[2] Berg v. Kelly, 897 F.3d 999 (2d Cir. 2018)

No. Qualified immunity does not protect an officer who acted in good faith or because they made a split-second decision; the Fourth Amendment provides that protection. The shield created by qualified immunity only comes into play when an officer has acted objectively unreasonably under all the circumstances. Police officers who are “legitimately performing their duties” — i.e., acting lawfully — do not need qualified immunity because they’re not violating anyone’s rights in the first place.

No. Municipalities are required to indemnify their employees under the bill. This is consistent with the indemnification requirements that already exist for civil lawsuits against police officers in New York state.[1]

[1] N.Y. Gen. Mun. Law §50-j(6)

First, continuing to force New York communities to contend with qualified immunity will not save costs but shift them to the people injured by police misconduct. Barring suits through qualified immunity forces victims to bear the costs of the concrete harm they suffer (eg. medical bills, lost income, etc.). Moreover, there is no evidence that S 1991 will significantly increase litigation defense costs for municipalities. While a government actor can move to dismiss a case on qualified immunity grounds in the initial stages of litigation, the majority of  cases proceed to discovery and even trial before the defense is granted.[1] Additionally, fears that local governments will face insurmountable expenses related to an influx of new claims currently precluded by qualified immunity have no concrete basis. Montana[2] and Colorado[3] have already eliminated

[1] Joanna C. Schwartz, How Qualified Immunity Fails, 127 YALE L.J. 2, 60 (2017)( studied civil rights cases in five federal district courts over a two-year period and found that qualified immunity only disposed of 3.2% of cases before trial)

[2] Dorwat v. Caraway, 58 P.3d 128, 131, 137 (Mont. 2002)

[3] COLO. REV. STAT. ANN. § 13-21-131 (2020)

S 1991 is only going to impact police officers who violate someone’s civil rights. Officers who do not break the law have no cause for concern. There is no evidence to suggest potential government employees consider immunity from suit when considering a job. Substantial research indicates that many law enforcement officers agree that officials should be subject to civil suits when they violate a person’s rights and that lawsuits could deter unlawful behavior by government employees.[1]

[1] Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1811-1813 (2018)