Qualified Immunity

Colorado has passed a sweeping police reform bill that bans choke-holds, and makes officers personally liable if they are found guilty of violating an individual’s civil rights. The bill states that “qualified immunity is not a defense to liability”, thus ending a recurrent practice in the country.

What is qualified immunity?

First introduced in 1967 by the U.S. Supreme Court. This doctrine was originally created with the rationale of protecting law enforcement and government officials performing discretionary functions from frivolous lawsuits unless the plaintiff shows that the official violated statutory rights. A discretionary function requires an official to determine “whether an act should be done or a course pursued” and to decide the best means of achieving the chosen objective.

It’s a form of sovereign immunity that balances two important interests- the need to shield officials from harassment, distraction, and liability when they act in good faith in unclear situations and the need to hold public officials accountable. Which means, this doctrine only applies to suits against government officials as individuals, not against the whole organization. 

In-depth Look

To be clear, qualified immunity is not immunity from having to pay money damages, but rather an exemption from trial. Most courts will try to resolve qualified immunity issues as early as possible in a case, preferably before discovery. 

In order to show that the law was “clearly established”, the court will require plaintiffs to point to an already existing judicial decision with similar facts. Essentially, the first person to litigate a specific harm is out of luck since the right violated won’t be “clearly established” at that time. Even if the officers violated the plaintiff’s fourth amendment rights, they’re nonetheless granted qualified immunity because the plaintiff did not clearly establish a violation at the appropriate level of specificity.

For that reason, qualified immunity has been cited in many cases involving the use of excessive or deadly force by police, and also applies to other executive branch officials. Critics have argued that qualified immunity makes it extremely difficult to sue public officials for misconduct. Justice Sonia Sotomayor has called qualified immunity a “one-sided approach”

Do you need a Motion to Dismiss Qualified Immunity?

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“Does it send a message to officers that they can shoot first and think later?”

Such reasoning has divided American advocates, causing the political right to emphasize values of law enforcement “accountability” and defense of private property; while the arguments from the left focus on racial justice and broader police reform efforts—but there is overlap.

What are your thoughts?