1889 Institute: qualified immunity contributes to policing problem, must be fixed

Breaking the Unjust Shield: Fix Qualified Immunity

By Spencer Cadavero

The manner of George Floyd’s death, along with any number of other examples, is proof that the United States has a policing problem. Qualified immunity, the judicial doctrine that usually prevents police officers acting in the line of duty from being held accountable in court, undoubtedly contributes to the problem.

Qualified immunity is a legal doctrine created by the Supreme Court. It protects government officials who have violated a citizen's constitutional rights unless a “clearly established” right has been violated. To show that a right was “clearly established,” the victim must point to a previously decided case involving the same “specific context” and “particular conduct” as their current case. If he fails to do so, the offending officer is granted qualified immunity. In George Floyd's case, his family would have to point to a case where a cop suffocated someone with his knee in the street, went to trial for it, and a judge said it was bad. If no case like that exists, then Floyd's family cannot recover damages.


This leads to outrageous results. In 2013, Fresno police served a search warrant where they reported that they seized $50,000 from two men, Micah Jessop and Brittan Ashjian, suspected of illegal gambling. Despite reporting they confiscated $50,000, the two men reported that officers stole over $275,000 in cash and rare coins. Jessop and Ashjian elected to sue the officers involved over the stolen coins. It sounds like a straightforward case; after all, the 4th amendment prohibits unreasonable searches and seizures. However, the 9th Circuit ruled the officers were entitled to qualified immunity since it would not be "clear to a reasonable officer" that stealing $225,000 violated Jessop and Ashjian’s constitutional rights.

This is not to say police should have zero protections while performing their duties, but the protection should be narrow. Would a reasonable person, put in the same circumstances (including time pressure and safety concerns) have known the conduct was wrong at the time they were doing it? Certainly a reasonable person would know that stealing $250,000 or kneeling on a handcuffed suspect’s neck was wrong. In those cases, the plaintiffs should be free to proceed. In the case of a belligerent drunk who sustained a sprained wrist resisting handcuffs, the judge would still be free to dismiss it.

America’s policing problem will not be cured by fixing qualified immunity. There will still be cops who wish their life was a Quinten Tarantino movie and act as if it were. But it will allow the victims of police abuse and their families to get compensation. Requiring cops to be civilly liable for their actions will also force many of the worst actors out of the profession. This is an opportunity for Congress to take back its policymaking role from the Supreme Court.

Spencer Cadavero is Research Associate for 1889 Institute.