The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Qualified Immunity

How Supreme Court Doctrine Protects Cops Who Kill (or Otherwise Use Excessive Force)

A Reuters report suggests changes in qualified immunity doctrine have immunized police officers sued for misconduct.


The doctrine of qualified immunity serves to shield government employees for liability for their actions. Basically, the doctrine holds that a government actor is immune from suit for discretionary actions performed within their official capacity, unless their actions violated "clearly established" law. So, for example, if a police officer is sued for using excessive force on a civilian, qualified immunity will protect them unless it was "clearly established" by prior court decisions (or relevant statutes) that their actions were unlawful or unconstitutional.

Qualified immunity is very difficult for victims of government misconduct to overcome. First, the Supreme Court has made clear that courts are to conduct a very narrow inquiry in determining what is "clearly established." Basically, if there's not a case on point in which government officials engaged in precisely the same misconduct, it's unlikely it will be considered "clearly established" that what the defendants in a subsequent case did is wrong.

Second, the way qualified immunity cases proceed today prevents courts from concluding that conduct was unlawful, so the unlawfulness of much wrongful conduct escapes ever being classified as "clearly established."

Historically, under Saucier v. Katz, courts conducted a two-part inquiry in qualified immunity cases. First, a court was to look at whether the alleged conduct would make out a violation of a constitutional right. Then, if so, the Court would consider whether that right was clearly established at the time of the defendant's alleged misconduct.  Under this approach, courts could conclude that what a government official did was wrong, and still find them immune. Importantly, however, such a ruling would put others on notice that those who engage in similar conduct would not receive qualified immunity.

In 2009 the Supreme Court overturned Saucier in Pearson v. Callahan. Under Pearson, a reviewing court can simply answer the second question: Was it "clearly established" at the time of the alleged conduct that the conduct was wrong? By truncating the inquiry in this way, Pearson made things easier for lower courts. Pearson also ensures that the wrongfulness of much wrongful conduct never becomes "clearly established."

A new investigative report by Reuters suggests that this change has had a significant effect on the rate at which courts find qualified immunity. Between 2005-07 and 2017-19, the percentage of qualified immunity cases won by plaintiffs dropped from 57 percent to 45 percent.

In the decade since [Pearson], the Reuters analysis found, appeals courts have increasingly ignored the question of excessive force. In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence. In effect, the same conduct can repeatedly go unpunished.

I am sure that the shift is due to a range of factors, and I hope that Reuters will make its data available to other researchers who would like to build on and refine their findings. It is important to understand how slight doctrinal shifts affect facts on the ground.

Beyond the doctrinal changes, the Supreme Court has also sent a clear signal to lower courts that it's more suspicious of rulings denying qualified immunity than those allowing suits to proceed.

 Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did. The court's acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals. For plaintiffs' appeals, the acceptance rate was slightly below the court's average.

In the cases it accepts, the court nearly always decides in favor of police. The high court has also put its thumb on the scale by repeatedly tweaking the process. It has allowed police to request immunity before all evidence has been presented. And if police are denied immunity, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal.

"You get the impression that the officers are always supposed to win and the plaintiffs are supposed to lose," University of Chicago law professor William Baude said. In his research, Baude has found that qualified immunity, as a doctrine, enjoys what he calls "privileged status" on the Supreme Court, which extends to cases the court decides without even hearing arguments – a relatively rare occurrence. In such cases, the court disproportionately reversed lower courts' denials of immunity.

Fortunately, current qualified immunity doctrine is subject to increasing criticism, including from academics across the political spectrum. Perhaps this will encourage the Court to change course.

Justices may think that a strict qualified immunity doctrine protects cops, but this would be mistaken. I would argue that by insulating bad cops from accountability for their actions, qualified immunity actually endangers the vast majority of cops who do not engage in egregious misconduct. Insulating officers from accountability reduces trust of officers across the board. Allowing suits to go forward against the small percentage of cops that truly do wrong would make it easier for more communities to have faith in the important work that police do.