The Doctrine of Qualified Immunity

March 9, 2017

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 limited circumstances under the Federal Tort Claims Act and Virginia Tort Claims Act, respectively.[5] Similarly, “[o]fficials performing prosecutorial, judicial, or legislative functions may properly assert absolute immunity as a defense in section 1983 actions. When performing these functions, officials are immune from an award of damages, regardless of their motives for acting.”[6] When a police officer is sued for alleged misconduct in his duties, however, the police officer will assert a different type of immunity: his qualified immunity.

Qualified immunity operates to “protect officers from the sometimes hazy border between excessive and acceptable force.”[7] “As a matter of public policy, qualified immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”[8] “A ruling should be made early in the proceedings so that the cost and expenses of trial are avoided where the defense is dispositive. Such immunity is an entitlement not to stand trial, not a defense from liability.”[9] Put differently, courts favor pretrial resolution of an officer’s plea of qualified immunity, typically on summary judgment.[10] “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[11] In fact, a government official may be shielded from liability for damages even where he violates the plaintiff’s constitutional rights, “as long as their actions reasonably could have been thought consistent with the rights they are alleged to have violated.”[12]

In determining the constitutionality of the seizure of a person—such as shooting a fleeing suspect—, the court weighs “the nature and quality of the intrusions on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”[13] On this principle, it has been held unconstitutional to perform surgery under general anesthesia to obtain evidence, but blood tests of a drunk-driving suspect have been upheld as constitutional.[14] Does the fleeing suspect’s interest in being free of unreasonable and unlawful seizures outweigh the government’s interest in arresting him and prosecuting him? The measure of what force is excessive is what is objectively reasonable under the circumstances[15], which is not necessarily the same as what would constitute a reasonable seizure under the Fourth Amendment.[16] The law tends to favor police officers and “allow[s] for the fact that police officers are often forced to make split-second judgments–in circumstances that are tense, uncertain, and rapidly evolving–about the amount of force that is necessary in a particular situation.”[17]

When it comes to qualified immunity, deadly force has often been found objectively reasonable. In Billington v. Smith, deadly force was justified when the suspect violently resisted arrest, attacking the officer and trying to grab his gun, thereby posing imminent threat of injury.[18] In another case in which deadly force was found reasonable, the suspect was killed after he pointed a gun at officers.[19] Even when the facts appear outsized in favor of the law enforcement officer, however,  “[d]eadly force cases pose a particularly difficult problem . . . because the officer defendant is often the only surviving eyewitness.”[20] But “the court may not simply accept what may be a self-serving account by the police officer. It must also look at the circumstantial evidence that, if believed, would tend to discredit the police officer’s story, and consider whether this evidence could convince a rational factfinder that the officer acted unreasonably.”[21] Obviously, this is a very difficult task for judges, and one that often is not resolved in favor of the deceased suspect’s family.

Even though qualified immunity is not absolute, officers enjoy robust protection from suit under the doctrine. Qualified immunity is not just a defense, but an immunity—the preference is to resolve the officer’s plea of qualified immunity early in the case to spare all parties the expense and inconvenience of trial. The right to be secure in one’s person and of one’s life and not to be shot by a policeman is clearly established, but judicial respect for the vagaries of charged situations can render cold-blooded killing objectively reasonable upon hearing artful testimony from the sole surviving law enforcement witnesses. Perhaps with the wider availability of video footage of violence by police, courts will see fit to deny officers’ pleas of immunity more often and let the jury decide what happened. While some critics have been disappointed by recent notorious refusals by prosecutors and grand juries to indict officers who exceeded their constitutional bounds in the use of force, technological advances may provide increased accountability for law enforcement officers and firmer legal ground for excessive force victims and their families.


[1] 42 U.S.C. § 1983 was originally enacted as part of the Civil Rights Act of 1871 or Ku Klux Klan Act to counter abuses being carried out in the southern states during Reconstruction. An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for Other Purposes, Pub. L. No. 42-22, 17 Stat. 31 (1871).

[2] Monroe v. Pape, 365 U.S. 167 (1961).

[3] Price v. United States, 174 U.S. 373, 375-76 (1899); Messina v. Burden, 228 Va. 301 (1984).

[4] Hinchey v. Ogden, 226 Va. 234, 240 (1983).

[5] 28 U.S.C. § 2674 et seq.; Va. Code § 8.01-195.3.

[6] Kathryn R. Urbonya, Problematic Standards of Reasonableness: Qualified Immunity in Section 1983 Actions for a Police Officer’s Use of Excessive Force, 62 Temple L. Rev. 62, 64 n.9 (1989) (internal citations omitted).

[7] Saucier v. Katz, 533 U.S. 194, 206 (2001).

[8] Malley v. Briggs, 475 U.S. 335, 335 (1986).

[9] Saucier, 533 U.S. at 194.

[10] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[11] Id.

[12] Anderson v. Creighton, 483 U.S. 635, 638 (1987).

[13] Tennessee v. Garner, 471 U.S. 1, 8 (1985) (use of deadly force to seize fleeing felon unreasonable unless necessary to prevent escape and suspect poses a significant threat of death or serious physical injury to the officer or others).

[14] Id.

[15] Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872, 104 L.Ed.2d 443 (1989).

[16] Urbonya, supra note 6, at 66 (“Because the Court has determined there are two standards of reasonableness, conduct may be ‘unreasonable’ within the meaning of the Fourth Amendment, but nevertheless ‘objectively reasonable’ for purposes of qualified immunity.”)

[17] Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872. Be that as it may, there is no qualified immunity for an unlawful search pursuant to invalid warrant. Groh v. Ramirez, 540 us 551 (2004).

[18] Billington v. Smith, 292 F.3d 1177, 1185 (9th Cir. 2002).

[19] Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994).

[20] Id. at 915.

[21] Id.