Qualified immunity is a widely misunderstood concept—one that often does not become any clearer after reading court decisions granting qualified immunity. Rather than asking the question of whether specific actions would fall under qualified immunity, the focus of law enforcement should be on how to improve safety through better split-second decision making in high-risk situations. How officers make decisions and on what basis is critical—and qualified immunity does not provide the best guide for these decisions.
In a recent Lexipol webinar, “Officer Decision Making: Why Qualified Immunity Isn’t a Good Guide,” Chief (Ret.) Mike Ranalli and Laura Scarry explored the intersection of qualified immunity and risk management, outlining what qualified immunity is, reviewing examples from recent cases, and providing tangible takeaways for officer decision making and safety.
Back to the Basics: What Is Qualified Immunity?
First, let’s clarify what we’re talking about here—the focus is federal qualified immunity, not state-specific laws regarding qualified immunity. “It is the federal law regarding qualified immunity that has been increasingly scrutinized over the last few years,” says Laura Scarry. “A controversy is that many advocates for police reform believe the doctrine of federal qualified immunity allows members of the law enforcement community to operate in a purported culture of non-accountability. The belief is that, by not holding officers accountable for violations of rights under the constitution or federal law, an environment has been created where police officers believe they can act with impunity.”
Next, we need to clear up some common misconceptions about federal qualified immunity and provide a clear definition. Law enforcement personnel are not the only group qualified immunity applies to—qualified immunity is a defense that is available to all government officials. But what actually is qualified immunity? It is a judicially created doctrine that shields government officials from being held personally liable (for monetary damages under federal law) for constitutional violations. For law enforcement, qualified immunity is often granted in cases pertaining to Fourth Amendment violations such as search and seizure and due process violations. As established in Harlow v. Fitzgerald (457 U.S. 800, 818, 102 S.Ct. 2727 (1982)), under the doctrine of qualified immunity:
Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
For a case to be dismissed on the basis of qualified immunity, courts utilize a two-part test: 1) Did the officer violate a constitutional right? And 2) Was that right clearly established at the time of the incident? If the answer to the first question is “yes,” but the answer to the second is “no,” the officer is granted qualified immunity. But that raises the question, what does it mean for a right to be clearly established? In District of Columbia v. Wesby (138 S.Ct. 577 2018)), the Supreme Court acknowledged it had “not yet decided what precedents, other than its own, would qualify as controlling authority for purposes of qualified immunity,” Scarry explains. Even so, several circuit courts not only look to Supreme Court precedent, but also to cases from their own circuit and cases from other courts exhibiting what is considered to be a “consensus” view of clearly established rights.
Split-second decisions are inevitable in the law enforcement profession but reacting in a way that deprives people of their constitutionally approved rights is not.
Understanding the Challenges of Qualified Immunity
Since the ruling in Pearson v. Callahan (129 S.Ct. 80 (2009)), courts have been enabled to skip straight to the second question in the two-part test without a detailed review of the facts of the case. This further complicates the question of qualified immunity for officers as the court often declines to expressly state whether an officer’s actions violated a constitutional right and in what way. This prevents the potentially violated right from ever becoming “clearly established” for the purposes of law enforcement officer decision making. “I’ve been training for 30 years and I like to have answers. I like to know what is allowable, what’s not allowable,” Ranalli says. “I find the Pearson case, and the second prong being answered sometimes without the first one, to be frustrating…So, there are some legitimate concerns about that.”
While qualified immunity does account for some of the challenges law enforcement officers face in time-compressed, high-stress encounters, “every case is unique,” Ranalli explains. “They don’t necessarily fit into broad categories, so it can be difficult for an officer, even with clear precedents” to make these split-second decisions. Because of this, we know qualified immunity to be an inadequate guide at best. Moreover, it’s important for law enforcement professionals not only to adhere to the law, but to consider what course of action is legitimate—both legal and right.
Rather than figuring out how to toe the line in encounters based on court rulings that clearly establish some rights but not others, Ranalli and Scarry urge officers to determine how to act in the safest, most professional way possible at every turn. This comes from an understanding of your role as a policing professional and a continued dedication to safety and preservation of life. Split-second decisions are inevitable in law enforcement but reacting in a way that deprives people of their constitutionally approved rights is not—through policy, training and a focus on legitimacy, officer decision making can properly reflect the values of the profession. Learn more in the on-demand webinar, “Officer Decision Making: Why Qualified Immunity Isn’t a Good Guide.”