Qualified Immunity: Is the End Near?

By Wylie Stecklow

December 14, 2020

Qualified Immunity: Is the End Near?


By Wylie Stecklow

In 1967, 15 clergy sued police officers who arrested them for seeking to use segregated facilities at a Jackson, Mississippi bus terminal.[1] After the statute under which they were arrested and charged was later declared to be unconstitutional, the Supreme Court ruled that the officers could not be held liable if they acted in good faith and with probable cause under a statute they believed to be valid. So was born the Court-created doctrine of Qualified Immunity – a doctrine today that has become the target of widespread protests across American society, from the millions of citizens who were shocked at the police killing of George Floyd, to the Black Lives Matter movement that is demanding change, to political leaders in the New York State legislature and Congress who could abolish the doctrine.

It is easy to understand the reason for the protests. The doctrine has been expanded beyond its early application, from protecting “officers who acted in good faith . . . [to] protect[ing] all officers, no matter how egregious their conduct, if the law they broke was not ‘clearly established’.”[2] The clearly established requirement was judicially created in 1982 and was soon applied so broadly that Qualified Immunity protected “all but the plainly incompetent” law enforcement officers.[3] In 2011, the Supreme Court further enhanced this protection, holding that “for the law to be clearly established, it must have been ‘beyond debate’ that [the officer] broke the law.”[4]

Qualified Immunity became the rule rather than the exception, with its expansive scope requiring a plaintiff to not only prove the unconstitutional conduct of the officer, but also that the law was clearly established prior to the incident with case law support from a prior court ruling that was factually consistent and perhaps identical to the current case.[5] The High Court has reviewed 30 Qualified Immunity cases since inventing the defense, finding in favor of law enforcement in all but two of them.[6]

Qualified Immunity as a Legal Defense

Qualified Immunity is an affirmative defense.[7] To establish the affirmative defense, the defense must provide evidence to support one of two findings.

To determine whether Qualified Immunity applies in a given case, the reviewing court must determine: (1) whether a public official has violated a plaintiff’s constitutionally protected right; and (2) whether the particular right that the official has violated was clearly established at the time of the violation. Only if both elements are met will Qualified Immunity be defeated. Trial courts, which make such findings, and appellate courts, which review them, can examine either of the issues first.[8]

To complicate matters a little, the federal circuits do not agree on who carries the burden of proof once a defendant pleads the Qualified Immunity defense (and there are even inconsistent decisions within the same circuit). While the law in some circuits shifts the burden to the plaintiff to prove the Qualified Immunity defense does not apply,[9] other circuits hold conversely that the burden remains with defendants.[10] The Supreme Court does not seem concerned about clearing up this confusion, as it has denied certiorari in two cases in which allocation of the burden of proof was at issue.[11]

Some Outrageous Examples of Qualified Immunity

There are numerous examples of decisions granting Qualified Immunity to police officers under facts that simply belie logic and societal standards. One head-scratching example in the Second Circuit protected a corrections officer who fondled the genitals of an inmate for no legitimate purpose.[12] An example from the Tenth Circuit involved a hospitalized man suffering from pneumonia and confusion who was non-violent but refused to return to his hospital room. The police tased, tackled and killed Johnny Leija, by pinning him on the ground and straddling his back while handcuffing him, thereby starving his already compromised lungs of oxygen. A jury awarded significant sums to his family, but the Tenth Circuit granted the officers Qualified Immunity, reversed the jury verdict and directed dismissal of the case.[13] In another example, a class of parole violators, whose concurrent sentences were unconstitutionally transformed into consecutive sentences, causing them to be held in prison long past their lawful maximum release dates, brought suit. The action was dismissed on Qualified Immunity grounds, even though the Court described the defense conduct as “abhorrent and absurd.”[14]

A naked, emotionally disturbed person who claimed to be God was tased repeatedly by officers in front of his home until he died. The police had been called to the location by the individual’s mother. In granting the officers Qualified Immunity, the circuit court held that although it was clearly established that non-violent, non-fleeing subjects should be free from multiple tasings, such law was not “clearly established” regarding a naked, aggressive person with no weapons.[15]

Qualified Immunity has been applied in claims surrounding expressive speech activity, including a Fourth Amendment violation that involved a two-hour suspicionless and warrantless detention of demonstrators where the court found no probable cause and denied the defense claim of a special needs search doctrine. Still, the Second Circuit granted Qualified Immunity to the defendant officers due to lack of binding precedent.[16]

In the excessive force setting, the Fifth Circuit granted Qualified Immunity to an officer who had pepper sprayed an inmate in the face without provocation, because the appeals court had not yet adjudicated a case involving a correction officer’s unprovoked use of pepper spray.[17] Even when there was a finding of malice and excessive force used by an officer, the Ninth Circuit reversed, vacated a jury verdict and granted Qualified Immunity to an officer who had injured a college student, armed with a water balloon, by violently throwing him to the ground. The court narrowly interpreted the issue and failed to find clearly established precedence where a comparable use of force was exercised. However, counsel reviewing the decision have explained the circuit court would have denied Qualified Immunity had the student been accused of felonious activity as the excessive force would have been clearly established, but not for a lesser, misdemeanor act (“physical resistance or obstruction.”).[18]

The Judiciary Strikes Back . . . to a Point

Perhaps, with the immaculate conception of Qualified Immunity, coupled with the tortured logic used to employ it in various cases, it is not surprising that even members of the bench have objected to its existence. There has been a rising chorus both in courts of law, and in the court of public opinion, to abolish Qualified Immunity. On the Supreme Court, Justices Sotomayor and Thomas have each inserted dicta in decisions expressing their dissatisfaction with Qualified Immunity. In 2018, Justice Sotomayor, in a dissent joined by Justice Ginsburg, stated that the Supreme Court’s “one-sided approach to Qualified Immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.” Going even further, the dissent set out that Qualified Immunity “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”[19] Two years later, Justice Thomas wrote in a rare statement dissenting from the denial of certiorari.

There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe. Leading treatises from the second half of the 19th century and case law until the 1980s contain no support for this “clearly established law” test. Indeed, the Court adopted the test not because of “‘general principles of tort immunities and defenses,’” but because of a “balancing of competing values” about litigation costs and efficiency,

Regardless of what the outcome would be, we at least ought to return to the approach of asking whether immunity “was ‘historically accorded the relevant official’ in an analogous situation ‘at common law.’” Ziglarsupra, at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290 at 323 (opinion of Thomas, J.) The Court has continued to conduct this inquiry in absolute immunity cases, even after the sea change in Qualified Immunity doctrine. We should do so in Qualified Immunity cases as well. (Internal citations omitted).

I continue to have strong doubts about our §1983 Qualified Immunity doctrine. Given the importance of this question, I would grant the petition for certiorari.[20]

Criticism for Qualified Immunity is not restricted to Justices on the High Court. Circuit Court Judges have recently joined the fray. Judge Calabresi, concurring in a Second Circuit opinion concerning the suppression of a gun that was found by police without any articulable suspicion, identified that the bubble within which most of the federal bench have always lived[21] means those deciding Qualified Immunity cannot relate to the facts and circumstances underlying such an analysis:

[In most of these] cases in which the hunch or the stereotype was wrong, an honest person was humiliated, searched, and all too often maltreated … lead[ing] to distrust and even hatred of the police, with dire consequences. . . . There may well be hundreds of situations in which searches like the one before us today turned up nothing. But surely no more than a handful will get to court. And even these will almost always get decided against the innocent “searchee” on Qualified Immunity.

All this might not matter if courts knew, directly and emotionally, from personal experience, the stories of those unnecessarily, improperly, and humiliatingly searched. But we judges, and our families and friends, are not likely to be the ones whom the police decide to search on a hunch. We are not likely to be stopped for failing to signal. And we are most unlikely to be made to spread eagle, even if stopped.[22]

In June 2020, Judge James A. Wynn of the Fourth Circuit Court of Appeals took the extraordinary step of publishing an op-ed in the Washington Post, titled “As a Judge, I Have To Follow the Supreme Court. It Should Fix This Mistake.” Judge Wynn wrote that

[t]he Supreme Court’s creation and expansion of Qualified Immunity – and its ongoing refusal, thus far, to reconsider it – not only diminishes the law’s intended effect; it also harms individuals who are booted out of court before they can ever bring claims of excessive force before a jury. And it strains the separation of powers. By creating a defense unmoored from the text, the Supreme Court has undermined Congress’s intent to provide remedies to those whose rights have been violated.[23]

District Court Judge Carleton W. Reeves, sitting in the Southern District of Mississippi, recently published an opinion granting Qualified Immunity but excoriating the court-created immunity:

The Constitution says everyone is entitled to equal protection of the law – even at the hands of law enforcement. Over the decades, however, judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called “Qualified Immunity.” In real life it operates like absolute immunity. . . . Tragically, thousands have died at the hands of law enforcement over the years, and the death toll continues to rise. Countless more have suffered from other forms of abuse and misconduct by police. Qualified Immunity has served as a shield for these officers, protecting them from accountability. . . . But let us not be fooled by legal jargon. Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.

As the Fourth Circuit concluded, “This has to stop.”

[J]udges took a Reconstruction-era statute designed to protect people from the government, added in some “legalistic argle-bargle,” and turned the statute on its head to protect the government from the people. . . . [E]very hour we spend in a § 1983 case asking if the law was “clearly established” or “beyond debate” is one where we lose sight of why Congress enacted this law those many years ago: to hold state actors accountable for violating federally protected rights [. . . . ][24]

Let us waste no time in righting this wrong.[25]

The Impact of George Floyd’s Death

It is said that great change does not flow directly from litigating cases in court, or protesting in the streets or seeking changes in legislation, but that it comes when all of these have been toiling in separate ways seeking to effectuate change until a groundswell of support explodes in society. In our recent history, this moment occurred in the aftermath of the George Floyd killing in May 2020. In New York, Civil Rights Law § 50a has protected municipal disciplinary records, including those of the NYPD, for more than 45 years. The repeal of § 50a has been a hot topic since the death of Eric Garner at the hands of the NYPD in 2012. Various groups organized protests.[26] The ACLU unsuccessfully sued to receive public records seeking to change the applicability of this law.[27] In June 2020, in light of the rising tide of protest demanding police accountability, the New York State legislature quickly passed New York State Senate Bill S8496, repealing Civil Rights Law § 50a. Currently, New York State legislators, led by Senators Robert Jackson, Jessica Ramos, Julia Salazar and Gustavo Rivera, are currently working on Senate Bill S8668B to ensure police accountability in New York State courts with the creation of a new civil rights claim –  for deprivation of civil rights by an individual or an entity –  coupled with an end to the defense of Qualified Immunity.

The protests that began across the country and the world became the groundswell that may finally bring change to Qualified Immunity. Federally, in the wave of protest and the strength of the Black Lives Matter movement, two different bills were created to end Qualified Immunity. While the End Qualified Immunity Act (H.R. 7085) has not made it out of committee, the more expansive George Floyd Justice in Policing Act of 2020 (H.R. 7120) submitted on June 8, 2020 by Congresswoman Karen Bass (who is also the leader of the Congressional Black Caucus), passed through the U.S. House of Representatives on June 25, 2020.

On January 5, 2021, two Senate runoffs in the State of Georgia may swing the U.S. Senate away from Republican-dominated leadership. Many police accountability leaders throughout these great United States will look to see if President-elect Biden’s administration will be as progressive in action as it has claimed to be in words. Will it follow the lead of Congress and push this bill through the Senate and into law, thus legislating away the use of the ill-created Jim Crow defense of Qualified Immunity?

Wylie Stecklow, a civil rights lawyer, is past president of the S.D.N.Y. Federal Bar Association, national chair of the FBA Civil Rights Law Section and an adjunct professor at Fordham Law. He is a founding member of the National Action Network’s Legal Rights Nights, a recipient of U.S. Congress Certificate of Special Congressional Recognition for Community Service, the New York City Council Certificate for Outstanding Citizenship and Manhattan Borough President’s Office Certificate of Recognition for Service to the Community. In 2004, he was the general counsel for the Billionaires for Bush, and in September 2011, his firm was retained by the Occupy Wall Street General Assembly. He has litigated First Amendment rights in New York, Maryland and Iowa.

[1]. Pierson v. Ray, 386 U.S. 547 (1967),

[2]. Jamsion v. McClendon, 2020 U.S. Dist. LEXIS 139327. *28-29 (S.D. Miss. 2020).

[3]. Malley v. Briggs, 475 U.S. 335, 339, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)).

[4]. McCoy v. Alamu, 950 F.3d 226, 233 (5th Cir. 2020).

[5]. The Sixth Circuit standard requires that the prior ruling be in a published opinion in that Circuit, making the expanding even more the application of Qualified Immunity, to protect obviously improper and unconstitutional conduct. McCoy v. Alamu, 950 F.3d 226. 233 n6 (5th Cir. 2020).

[6]. https://www.washingtonpost.com/politics/courts_law/supreme-court-asked-to-reconsider-immunity-available-to-police-accused-of-brutality/2020/06/04/99266d2c-a5b0-11ea-b473-04905b1af82b_story.html.

[7]. Gomez v. Toledo, 446 U.S. 635 (1980) (Since Qualified Immunity is a defense, the burden of pleading it rests with the defendant.)

[8]. Pearson v. Callahan, 555 U.S. 223 (2009).

[9]. Daugherty v. Sheer. 891 F.3d 386 (D.C. Cir. 2018); Felarca v. Birgeneau, 891 F.3d 891(9th Cir. 2018); Rivera-Corraliza v. Morales, 794 F.3d 208 (1st Cir. 2015); Becker v. Bateman, 709 F.3d 1019 (10th Cir. 2013); Mannoia v. Farrow, 476 F.3d 453 (7th Cir. 2007); Crosby v. Monroe County, 394 F.3d 1328 (11th Cir. 2004); Gardenhire v. Schubert, 205 F.3d 303 (6th Cir. 2000); Pierce v. Smith, 117 F.3d 866 (5th Cir. 1997).

[10]. Outlaw v. City of Hartford, 884 F.3d 351(2d Cir. 2018); Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014); Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007); Moreno v. Baca, 431 F.3d 633 (9th Cir. 2005); DiMarco-Zappa v. Cabanillas, 238 F.3d 25 (1st Cir. 2001).

[11]. Anderson v. City of Minneapolis, 2020 U.S. LEXIS 3220 (U.S., June 15, 2020); Corbitt v. Vickers, 2020 U.S. LEXIS 3152 (U.S., June 15, 2020).

[12]. Crawford v. Cuomo, 721 Fed. Appx. 57 (2d Cir. 2018) (Even though the officer’s intentional contact with an inmate’s genitalia that served no penological purpose and was undertaken with the intent to gratify the officer’s sexual desire was repugnant and intolerable, because the unconstitutional nature of the officer’s abuse was not clearly established in 2011, Qualified Immunity was properly recognized.) Shannon v. Venettozzi, 749 F. App’x 10, __ (2d Cir. 2018)( Same inappropriate genitalia touching granted Qualified Immunity even though the conduct alleged in the amended complaint is reprehensible both then and now, when it occurred in 2011, our precedent did not establish that such conduct was clearly unconstitutional.)

[13]. Aldaba v. Pickens, 844 F.3d 870 (10th Cir. 2016).

[14]. Sudler v. City of N.Y., 569 U.S. 1018, 133 S. Ct. 2777 (2013).

[15]. De Boise v. Taser Int’l, Inc., 760 F.3d 892 (8th Cir. 2014).

[16]. Berg v. Kelly, 897 F.3d 99 (2d Cir. 2018).

[17]. McCoy v. Alamu, 950 F.3d 226, 228 (5th Cir. 2020).

[18]. Shafer v. Padilla, 868 F.3d 1110 (9th Cir 2017).

[19]. Kisela v. Hughes, 138 S. Ct. 1148 (2018).

[20]. Baxter v. Bracey, 140 S. Ct. 1862 (2020).

[21]. Not surprisingly, two federal members of the judiciary who were not born in, and were not raised in, the ‘bubble’ Justices Sotomayor and Thomas, have articulated positions against qualified immunity (See “The Judiciary Strikes Back” earlier in this article).

[22]. United States v. Weaver, 975 F.3d 94, 109 (2d Cir. 2020).

[23]. https://www.washingtonpost.com/opinions/2020/06/12/judge-i-have-follow-supreme-court-it-should-fix-this-mistake/.

[24]. The law became known as the private attorney general statute because it seeks to incentivize attorneys to file constitutional violations against municipalities, regardless of the dollar amount of damages. If the attorney proves the constitutional violation, the client recovers the damages and the attorney recovers attorney fees for all of the hours expended in winning the case at the normal and customary hourly rate in the community. If qualified immunity means that these cases become unwinnable, the intent of the legislation is defeated.

[25]. Jamison v. McClendon, 2020 U.S. Dist. LEXIS 139327 (S.D. Miss. 2020)(Much of the historical information of this article was taken from this opinion).

[26]. https://innocenceproject.org/in-a-historic-victory-the-new-york-legislature-repeals-50-a-requiring-full-disclosure-of-police-disciplinary-records/.

[27]. New York Civ. Liberties Union v. New York City Police Dept., 32 N.Y.3d 556, 564 (2018).

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