In the recent discussions about changes to police practices, there have been suggestions to abolish a judicial doctrine known as “qualified immunity.” That is a legitimate conversation to have. Unfortunately, I have also seen a lot of misinformation about exactly what qualified immunity is and how it applies.
Qualified immunity is a limited defense to civil lawsuits under a specific federal civil rights law: Chapter 42 of the U.S. Code, section 1983. This statute gives people a private right of action in court to sue a government official for an alleged violation of a federal constitutional or statutory right. However, that right must have been clearly established at the time, meaning a reasonable official would have been aware that the conduct would violate the person’s rights. This test essentially incorporates a notice requirement so that officials are not held responsible for changes in the law after the fact or conduct falling within a gray area. It is also an acknowledgment that many government employees have to exercise considerable discretion in their jobs and, as a matter of policy, should not be held personally liable for those decisions unless they are outside the entire range of acceptable conduct.
Abolishing qualified immunity might have unintended consequences well beyond the realm of law enforcement. Although the recent focus is on police, qualified immunity is not just applicable to law enforcement. I have seen probation officers, social workers, and jail staff all sued under section 1983 in my career. I defended a few 1983 suits as an assistant county attorney, and qualified immunity was a valuable tool to dismiss weak lawsuits. These cases are a huge amount of work to litigate and take significant time and resources for not just the officers involved but usually their supervisors, human resources personnel, and clerical staff — all of whom are paid with taxpayer dollars. Because qualified immunity is usually litigated as a pretrial motion, its wholesale elimination would likely lead to more jury trials and higher settlements, which would increase those local litigation costs exponentially.
It’s also important to know what qualified immunity is not. Qualified immunity is not a defense to criminal charges. It has no applicability in criminal court and is not a bar to either referring charges or prosecution. Qualified immunity is also not a defense to adverse employment actions, like suspension or termination. Those hearings are typically governed by union contract rules and separate state laws governing public employment. Qualified immunity has no bearing on whether a police officer keeps his or her job after an incident.
Qualified immunity also is not a defense to lawsuits based on violations of state law. Minnesota, like most states, has recognized other types of limited immunity as a defense to state claims. Although the policies underlying those laws are similar, abolishing qualified immunity at the federal level would not affect any of those state laws.
The discussion about police accountability is going to be a hot topic in the months and years to come, and there might be proposed legislative changes to qualified immunity as a result. However, it is important to understand the reasons for the defense and the consequences flowing from any changes to it.
Dale Harris is a 6th Judicial District judge in the St. Louis County Courthouse in Duluth.