Why Bad Cops Aren't Punished: The Case Against Qualified Immunity

Following the police killing of George Floyd, the once-obscure legal doctrine known as qualified immunity has been thrust into the national spotlight.

The judge-made doctrine effectively shields police from most civil lawsuits unless their specific conduct has been "clearly established" as unconstitutional in a previous case.

"You know, there's an old adage, ignorance of the law is no excuse," says William Baude, a professor at the University of Chicago Law School. "The one group of people for whom it is an excuse are the government officials who…should know what they are and aren't supposed to do."

This sweeping protection, which was never voted on or signed into law, evolved over decades of judicial actions to give government officials room to make judgment calls without fear of lawsuits.

"The court can fix it anytime," says Baude. "But Congress can also fix it. Because it's just an interpretation of a statute that Congress wrote, Congress also has the power to step in…to either change the doctrine or repeal it entirely."

The Supreme Court recently dealt a blow to reformers by declining to hear a set of cases questioning the constitutionality of qualified immunity. Currently, the only hope for quick reform is legislation like the Ending Qualified Immunity Act, co-sponsored by Rep. Justin Amash (L–Mich.).

"I don't think reforming or even abolishing qualified immunity is going to change all the problems we have with policing in this country," says Baude. "There's a lot of research that police unions are another huge part of the problem because they make it really hard to hold bad apples accountable….But I do hope that by creating the sense that the police are not above the law, that it could sort of lead to some of the bigger cultural changes we probably need."

Produced and edited by Meredith Bragg; protest footage by Mark McDaniel, Zach Weismueller, and Paul Detrick. 

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