A Gratuitous Defense: Qualified Immunity and the Path to its Abolition

The Fifth Circuit Court of Appeals recently held that a prison guard who pepper-sprayed an inmate in his locked cell “for no reason” could not be held liable because he did not violate any “clearly established law.” This decision was based on the premise that the most closely-applicable cases had only found officers who hit and tased inmates for “no reason” culpable, as opposed to ones who had used pepper spray. The court’s reasoning is the product of the qualified immunity doctrine, a doctrine that protects public employees from litigation. Qualified immunity provides overabundant protections for public officials and must be re-written, if not abolished, through the legislative branch to protect the constitutional rights of citizens and prevent the emboldenment of officials to abuse their power. 

In 1967, the Supreme Court established qualified immunity as a defense to public officials being held financially liable for violations of constitutional rights. While the Supreme Court has established and overridden several rounds of standards for what should actually grant an official immunity, Pearson v. Callahan (2009) ruled that qualified immunity is extended to any officials who have not violated a “clearly established” law, even in cases that deal with constitutional violations. This doctrine has come under controversy in the past few years, particularly due to the vagueness of the doctrine’s wording and the leniency it gives to the courts. Many courts nitpick at the circumstantial facts of cases, rather than their merit, and dismiss any cases that are not almost identical to a prior case on the basis of qualified immunity. 

Although qualified immunity applies to all public officials, it has been especially scrutinized for police officers, prison guards, and other law-enforcement officials. These are professions where there are already persistent abuses of power and broad systemic protections in place; once those protections are coupled with qualified immunity, public officials are almost absolutely immune against legal consequences to their actions.

Taken August 20, 2021, at protests following the fatal police shooting of Ma’Khia Bryant. Photo by Paul Becker.

While the courts seem like the natural path to ending the abuse that qualified immunity has allowed for, it may not be so easy. There have been numerous cases every cycle that have had the ability to overturn qualified immunity, yet the Supreme Court has not budged. Even the more progressive justices tend to side with protecting qualified immunity.  Recently, the Supreme Court unanimously wrote an unsigned, or an unofficial, decision that would not only protect but expand qualified immunity in Rivas-Villegas v. Cortesluna (2021). The decision implied that it is questionable whether Circuit precedent will be able to clearly establish law in the future at all, with quotes such as “even assuming that Circuit precedent can clearly establish law” and “even assuming that controlling Circuit precedent clearly establishes law.” Such an interpretation would mean that only Supreme Court cases can establish precedent, which extremely limits the rights of citizens to litigate public officials.

Hence, the already-narrow qualified immunity doctrine would no longer include precedent from the 50,000 yearly Circuit cases but only from the 80 cases that the Supreme Court chooses to hear. Moreover, the Supreme Court tends to choose cases that involve sufficiently difficult legal matters, so cases where public officials clearly violated a citizen’s right may never become a “clearly established precedent” for future cases. In turn, a judicial system that employs the qualified immunity defense becomes a vicious cycle: courts fail to hold public officials accountable due to a lack of precedent, their cases are turned away and their fact patterns are never established as a precedent, new cases that appear before the court with the same circumstances are once again dismissed due to lack of precedent, and the pattern repeats. 

Considering this, neither progressive’s calls for court-packing nor the currently conservative Court is a viable solution. It is clear that justices, progressive or not, are not willing to overturn qualified immunity. In the past fifteen years, the Court has heard 18 cases regarding cases of constitutional violations by government officials. In 16 of those cases, the Court found that public officials were entitled to qualified immunity because they did not violate clearly established law, even if they violated the Constitution. Regardless of whether justices have been progressive or conservative, the Court has continually emphasized that “clearly established” must be so specific that even minor differences between the case at hand and prior cases cannot hold government officials accountable.

Taken at the Supreme Court of the United States on January 19, 2018, during the “March for Our Life” Rally. Photo by Elvert Barnes.

The remaining option is for an alternative branch of government to take action and address qualified immunity. This idea has been proposed by many political scientists and is becoming more widely accepted following the Supreme Court’s continued support of qualified immunity. Jay Schweikert, a Cato Institute fellow, reasoned that the Rivas-Villegas v. Cortesluna decision "is further evidence that the Supreme Court is not going to reconsider the fundamentals of the doctrine...Until and unless Congress addresses qualified immunity, public officials can continue to violate people's rights with impunity.” Since qualified immunity was judicially-created, the Court has the standing power to amend it. However, since qualified immunity is a product of statutory interpretation, Congress also has the authority to “amend, expand, or even abolish the doctrine.”

While the Supreme Court continues to narrow its definition of the doctrine, the public eye turns to Congress. There have been recent attempts to pass criminal justice reform bills that have included an examination of qualified immunity. One of these is the “Ending Qualified Immunity Act,” which was introduced in the House, and seeks to end the qualified immunity defense in cases where civil rights were violated. There is also an act currently making its way through Congress, which specifically focuses on limiting qualified immunity for law enforcement officers—the “George Floyd Justice in Policing Act.” This act seeks to “limit qualified immunity as a defense to liability in a private civil action against a law enforcement officer.” It has recently passed the House and is waiting on the Senate’s approval, and it may be the most promising effort to reform qualified immunity to date. Although a congressional resolution may be unlikely, it is possible, and currently necessary, for action to come from the legislative branch and bring an end to qualified immunity as we know it. 

Gabriella Frants (BC ‘25) is a staff writer at CPR. She is from Minneapolis, Minnesota, and her interests include criminal justice reform, education equality, and grassroots organizing. She is tentatively planning on majoring in Political Science and Psychology.