The Truth About Qualified Immunity

If you follow the news these days, chances are that you’ve heard about a contentious debate regarding immunity. In 2020, this has often come up in the context of immunity for law enforcement officers in the wake of allegations of police brutality. This is usually described as a “controversial” topic. However, I believe that if average citizens looked at this closer, there would be overwhelming support for doing away with or severely limiting immunity for law enforcement.

What Is It?

Qualified immunity for law enforcement is a legal doctrine that protects law enforcement from civil lawsuits even when they break the law. The idea was essentially that police cannot enforce the law if they had to worry about getting sued for everything they did.

In theory, this makes sense. I get it. Law enforcement is not an easy job. It’s stressful, and officers put their lives on the line. The concern was that frivolous lawsuits would bankrupt towns and cities and that law enforcement would be hesitant to carry out their duties.

The concept of qualified immunity is traced back to the Civil Rights Act of 1871. That Act allowed citizens to sue the Government civilly for violations of federal law. Interestingly, the Act made no mention of immunity. Despite that, since the 1960s, various courts, and most importantly, the US Supreme Court, have read in the concept of immunity into the Act. The law regarding qualified immunity, as it currently stands, is a judicial creation rather than based on legislation. The Supreme Court had repeatedly strengthened the doctrine of qualified immunity over time by using the backward reasoning that the legislature has not acted to abolish the immunity. In other words, the legislature should have explicitly prohibited the immunity, which they didn’t authorize in the first place! The argument makes no sense, but the doctrine of qualified immunity is as strong now as it has ever been.

It’s important to understand that it is called qualified immunity rather than absolute immunity. Under absolute immunity, under no circumstances could law enforcement be sued in civil court; regardless of the facts.

On the other hand, qualified immunity provides some exceptions where law enforcement can be sued. Currently, for law enforcement not to be shielded by qualified immunity, a plaintiff must show that law enforcement violated “clearly established law.” In reality, this creates an almost impossible hurdle for plaintiffs to overcome. The Supreme Court has required nearly identical facts in a previous case to find that a law was clearly established. As a result, this immunity is very rarely able to be pierced, meaning very few lawsuits against law enforcement are able to go forward.

Why It Matters

I’ve heard many of the arguments in favor of qualified immunity. For many people, there is a belief that if you don’t support qualified immunity for law enforcement, you don’t support law enforcement.

Many others believe that there will be too many frivolous cases against police if qualified immunity is abolished or weakened. While I can understand and appreciate these concerns, I don’t think that either is valid.

First, it’s essential to keep in mind what immunity does and doesn’t do. It doesn’t mean that someone who sues law enforcement will automatically be successful. Just because you are against qualified immunity for the police doesn’t mean you are anti-police. I believe that if police perform their duties within the law, they have nothing to worry about from a lawsuit. Will there be some lawsuits that shouldn’t have been brought? Absolutely. But that’s no different than any other business or line of employment. Keep in mind that immunity just means plaintiffs can’t bring the lawsuit at all.

Under our legal system, law enforcement would have the same opportunities to defend themselves as any other defendant. As a result, most frivolous cases would get dismissed before ever getting to a jury, and most juries would never award money to a plaintiff who did not have a legitimate case. I know the myths about juries handing out big awards to people who weren’t even injured, but in reality, at least in the Carolinas, that rarely if ever, happens.

This ties into the second concern, frivolous lawsuits. Proponents of qualified immunity frequently argue that doing away with qualified immunity will open the floodgates to frivolous litigation. I find this argument to be completely without merit. There will undoubtedly be more litigation than there is now, just based on the fact that immunity doesn’t preclude it. But I find it disingenuous to assume that much of it will be frivolous. That’s because, in reality, few attorneys would want to bring frivolous claims. Bear in mind that most plaintiff’s attorneys work on a contingency basis, meaning they don’t get paid if their client doesn’t get awarded money or settle.

As a result, there is little appetite for a civil plaintiff’s lawyer to want to spend the time and money to litigate a frivolous case. Are there exceptions? Sure, I don’t doubt that a few bad apples would file frivolous lawsuits, but I firmly believe they would be a tiny minority. In addition to the plaintiff’s attorneys not wanting to waste their time on a frivolous lawsuit, there are mechanisms that allow courts to punish lawyers and plaintiffs for bringing frivolous actions. Therefore, a lawyer who brings a frivolous case might not only not get paid but could be looking at fines or paying the defendant’s fees.


There is a great degree of irony in the fact that our Supreme Court has taken a law that was designed to protect citizens against the Government and turned it into a shield that essentially allows governmental entities, including law enforcement, to act without any concern for a civil recourse. As a result, countless victims of unlawful acts by law enforcement never get their day in court or any justice.

Supporting the abolition of qualified immunity for law enforcement doesn’t mean that you don’t support law enforcement, it means that you support justice, accountability, and the foundations that our country was built upon. Contact the law offices of Jason E. Taylor today.



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