The Doctrine of Qualified Immunity

Recent well-publicized reports of citizens being injured or killed by police officers have produced public discourse on what civil liability law enforcement officers face for the use of excessive force. The pattern of grievous personal injury followed by administrative leave, no criminal charges, and an eventual return to employment has left the families of Eric Garner, Philando Castile, and Alton Sterling asking what civil remedies are available against law enforcement officers. The chief source of tort liability for excessive force cases is 42 U.S.C. § 1983, which provides a civil action for money damages “to any citizen of the United States or other person within the jurisdiction thereof [for] the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. . . .”[1] The United States Supreme Court has interpreted 42 U.S.C. § 1983 to create tort liability for police officers acting outside the scope of their lawful authority.[2] But even though police officers can be sued for violating civil rights, victims and their families seeking monetary compensation must still overcome a high hurdle before their cases will be heard: the doctrine of qualified immunity. There are various kinds of governmental immunity under the law. Federal and state governments, for example, are protected by what is called sovereign immunity, which protects them from suit unless they have passed legislation specifically allowing them to be sued.[3] “The doctrine of sovereign immunity from suit, rooted in the ancient common law, was originally based on the monarchical, semireligious tenet that ‘the King can do no wrong.’”[4] Both the federal government and the Commonwealth of Virginia have waived their sovereign immunity in...