Qualified immunity, And Other Legal Doctrines That Deny Justice When Civil Rights Are Violated

Qualified Immunity (QI) and its derivatives are problematic, and the key to judicial reform required to restore Constitutional civil rights.

Yes, QI needs to exist, but its practical application must be limited. And everyone has known this for some time.

"I write separately, however, to note my growing concerns with our qualified immunity jurisprudence."

"Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence."

   - Justice Clarence Thomas, opinion in Ziglar v Abbasi, 137 US 1843 (2017)


Good officers who respect civil rights don't need QI to do the job. Lawful conduct in stopping crimes and keeping communities safe does not violate civil rights. And that is what the majority of our officers do every day.

There are exceptions. And when those exceptions violate civil rights, most are aware that officers are rarely held liable for civil rights violations by our courts, often because judges allow that officers nearly always have "qualified immunity" from liability. In an era where everyone can see the videos, and rights violations are painfully obvious, that notion seems to seriously fail the American people.

The Constitutional civil rights that the Federal courts exist to protect stem from the US Constitution, the highest law of the land. Nothing supersedes it. No law, and no court ruling can take priority over the Constitution, or diminish the rights enshrined there. That is where we started.

In 1804 in Little v Barreme, Justice John Marshall said (of civil rights violations), "A violation is a violation...and (when rights are violated) restitution is due..." He was weighing the matter before him in the scales of justice, and he focused on the perspective of the violated. He wrote that he struggled as he considered the perspective of the naval officer "following orders" and observed that officers are expected to follow orders. However, a violation had occurred, someone was harmed, and the damaged party must be made whole. The rights violator was before him, so the violator was held liable.

Through most of American history, our courts held that view.


In 1967 the Supreme Court (SCOTUS) ruled in Pierson v Ray in 1967, that police officers were merely "acting lawfully...in good faith reliance upon a (local, anti-loitering) law" when they arrested ministers protesting the civil rights violations of that era, and that the officers had "qualified immunity" from liability for the rights violations. The court was worried that officers might be hesitant to do the job if they had to make decisions between [a] doing nothing, and [b] enforcing a law that might put them in position to risk being financially decimated to personally make restitution for damage a rights violation can inflict. So the officers were granted a new creation: "qualified immunity".


That QI notion has expanded over time ("reasonable person", "clearly established law", "clear precedent", even to the point that "no allegation of malice need be alleged or proved", etc.; see the "Relevant Laws" page). Today, QI absolves officers of liability in nearly every conceivable situation. And SCOTUS has recently even said 'it is not necessary to determine if rights were violated, first focus on whether the officer (or other government official) accused of a civil rights violation can be absolved of liability.'


It is grave error for SCOTUS to say to citizens, "Your civil rights were violated, the Constitution was violated, but you shall have no restitution for the damages inflicted upon you." Especially true in the era of abundant video...

SCOTUS error is laid bare when it tries to justify the lack of justice with manipulations of language like "it's only a violation of civil rights if a reasonable person/officer would have known it was a violation". That denies that officers were trained specifically in the law at a sanctioned law enforcement training academy...after being selected and vetted from among a pool of applicants...and officers using police powers on citizens must be required to demonstrate some level of proficiency in the law in order to graduate from that law enforcement training academy. How else could officers enforce any law?! And "reasonable officers" might include every high school student who studies "US Government" and learned what the Bill of Rights is. So, every "reasonable officer" always knows, and must respect, the Bill of Rights.

SCOTUS errs greatly when it claims citizens must show "clearly established law" was violated...as if the Constitution's "shall not be violated" was not the most clearly established of all laws.

SCOTUS has certainly lost sight of its job of upholding and protecting the rights of citizens enshrined in the Constitution.

Legitimate Use

There are some cases where "officers are just doing the job, following orders" at the direction of superiors or department, or "relying in good faith upon a law", and actions of officers violate civil rights. In Pierson v Ray "qualified immunity" was created to shield officers from liability for violations that were not their fault. The Breonna Taylor case is similar (Louisville, KY, 2020, see "Errors with Warrants"). Officers were told to serve a warrant, and the officers followed department procedures in serving that warrant. Officers returned fire when fired upon. Officers did what officers do. Granted, the civil rights violations that caused Ms. Taylor's tragic death are outrageous, and there is plenty of liability, but liability does not belong primarily to those officers who arrived at her residence, and whose actions were directed by others.

The Cure

SCOTUS can and must fix the mess it created.

This is not hard. When civil rights are violated, restitution is due. Someone is responsible. Who is...? Think about it.


The end of The Qualified Immunity Era is here now.