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There is a growing movement to eliminate qualified immunity for Police officers in the United States.

What would happen from a legal perspective if this actually happened? Can officers be personally sued? Can officers be personally sued for cases prior to the elimination of the QI? Would police be required to have liability insurance in case they violate someones rights? How does this affect case law moving forward?

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    The title and body ask different questions. Do you mean "end qualified immunity", or "end qualified immunity but only for police officers"? Judges enjoy qualified immunity as well.
    – user6726
    Aug 2 at 16:58
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    @user6726: Judges enjoy judicial immunity, which is a form of absolute immunity. It is not "qualified" - a judge is not liable for their official judicial actions, regardless of how wrong those actions may be.
    – Kevin
    Aug 3 at 15:46
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    Randall v. Brigham, 74 U.S. 523 "unless perhaps where the acts in excess of their jurisdiction are done maliciously or corruptly"
    – user6726
    Aug 3 at 16:34
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    @user6726 A fair reading of the question is that it is intended to apply to the U.S. Supreme Court created doctrine of qualified immunity in response to 42 USC § 1983 suits, and not to so called "absolute" immunity doctrines applicable to judges, legislators, and prosecuting attorneys for discretionary decisions.
    – ohwilleke
    Aug 3 at 22:53

5 Answers 5

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As a legal matter, very little would change, other than the fact that more cases would proceed through the normal stages of civil litigation. Many cases that would have been dismissed at the Rule 12 or Rule 56 stage would instead proceed to discovery or trial.

This also means that the body of civil-rights case law would grow considerably. Right now, because courts already know that a right is not "clearly established" (the second prong of the QI inquiry), they will often refuse to consider whether an officer's actions were unconstitutional (the first prong of the QI inquiry). This has retarded the development of case law in these areas, but that problem could largely be cured with the end of qualified immunity.

The end of qualified immunity wouldn't change a plaintiff's ability to sue officers personally. Even with qualified immunity, plaintiffs can and do sue officers personally. Qualified immunity lets some officers off the hook, but many officers nonetheless remain exposed to liability even after attempting to invoke it. Ending qualified immunity would merely increase -- albeit substantially -- the number of officers who can be held personally liable.

That wouldn't mean that the officers would personally be required to carry insurance, though. A state or city could impose that requirement, but generally speaking, there's no such obligation. Instead, their employers typically carry their own insurance policies or are self-insured, and those policies cover claims against the officers working for the employer.

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    "Qualified immunity lets some officers off the hook, but many officers nonetheless remain exposed to liability even after attempting to invoke it." Any idea what the % split is?
    – RetiredATC
    Aug 4 at 2:21
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    Qualified immunity could have been raised in 979 of those cases, Schwartz found. And just 3.9% of those cases were dismissed based on qualified immunity. Of all the 1,183 cases Schwartz studied, 0.6% were dismissed at the motion-to-dismiss stage — usually an early stage in civil litigation — and 2.6% were dismissed at summary judgment. journalistsresource.org/politics-and-government/….
    – bdb484
    Aug 4 at 12:47
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    @bdb484 Of course, those statistics are mediated by knowledge on the part of civil rights lawyers, of the case law governing when qualified immunity will and will not afford a defense to an officer. We presume that in cases where the qualified immunity defense is strong that claims will not be brought at all and that only edge cases and cases by pro se parties ignorant of qualified immunity law will be filed and then dismissed. My intuition is that significantly more civil rights cases would be filed but for qualified immunity especially in "edge cases" seeking to expand existing civil rights.
    – ohwilleke
    Aug 4 at 16:55
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    Yes. I think there are quite a few possible confounding factors here. They're starting with cases where QI "could have" been raised, which suggests that perhaps it would have been successful if it had been raised. In my experience, QI is a much stronger defense than these statistics suggest.
    – bdb484
    Aug 4 at 18:27
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Can officers be personally sued?

Yes. This is true now as well. The only difference is that officers would have personal liability in all cases in which they intentionally violated someone's constitutional rights, rather than only in cases in which they intentionally violated someone's clearly established constitutional rights.

Can officers be personally sued for cases prior to the elimination of the QI?

Definitely for violations of someone's clearly established constitutional rights, possibly in other cases of intentional violations of constitutional rights that are not clearly established. It depends to some extent on the exact mechanism by which qualified immunity is abolished.

Would police be required to have liability insurance in case they violate someones rights?

No. But, police departments, as a matter of course, almost always have insurance for the governmental entity, and often have a collective bargaining agreement that indemnifies police officers in some cases.

How does this affect case law moving forward?

Qualified immunity cases would be irrelevant. Creating new constitutional rights or expanding existing ones would be easier (since QI allows cases to be resolved without determining if the conduct was actually constitutional or not when it isn't a clearly established constitutional right).

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Yes, qualified immunity does have exceptions.

Qualified immunity is a type of legal immunity. “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan .

When a court has to decide whether to uphold qualified immunity, they consider the following.

Specifically, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

Qualified Immunity is not intended to be a get-out-of-jail-free card. It does not excuse any irresponsible conduct by police nor does it absolve any guilt. The gross civil rights violations that you hear about are still perfectly able to be tried.

42 U.S. Code § 1983 - Civil action for deprivation of rights

The main law under which civil rights violations are upheld says the following.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

You may still have the rhetorical hurdle of proving that the government official must have or reasonably should have known about the right you contest he violated but even though this is a hurdle not present in civil actions not involving public servants it is by no means insurmountable.

There is also the very real possibility that the abolishment of it would probably force the already strained justice system to hear thousands upon thousands of frivolous cases that could have been avoided if the statute remained.

One may also make the case that more professions should have qualified immunity. If for instance, surgeons had qualified immunity then they probably would not have to spend 80K of the 300K they make in a year on liability insurance.

As with all things in life the issue is not clear-cut but certainly is a concept worthy of some more good debate.

source

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    As I understand it, QI cases are found in favor of law enforcement unless they are very similar or identical to previous cases that have been allowed to proceed. This leads to LE arguing that this case is not like that case and some bizarre outcomes have occurred. Am I incorrect?
    – RetiredATC
    Aug 2 at 15:52
  • I have added some of my own thought to make this less copy-pasta. I just wish I could complete the edits of my answer before I get down-voted.
    – Neil Meyer
    Aug 2 at 16:04
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    As somebody opposed to QI, I think most people don't necessarily believe it needs to be abolished entirely, just that the standard of "knew or reasonably should have known" as it has been set by the courts is way too narrow. For example, a police officer who was required to sit through a civil rights training course was adjudicated to not know nor reasonably be expected to know the contents of the course.
    – Andrew Ray
    Aug 2 at 16:41
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    @RetiredATC the big problem is QI is circular. You can't overcome QI without citing precedent, but there's no/few precedents to cite since QI prevented them.
    – Ryan_L
    Aug 2 at 21:00
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    "Qualified Immunity...does not excuse any irresponsible conduct by police nor does it absolve any guilt." Unfortunately yes it does, thus the debate. Aug 3 at 1:24
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Emergency response personnel (including police, but also including fire fighters and emergency medical technicians) are often forced into situations requiring that they quickly select a course of action make quick decisions based upon incomplete information. In many cases, the course of action that would be most likely to prevent severe harm to people or property will be likely to cause lesser harm. If e.g. a fire fighter arrives at a house with smoke pouring out a window, bashes down the front door, and then upon entering discovers that an occupant had just finished suppressing a fire, it would be easy to prove that damage to the property was more severe than would have occurred in the fire fighter's absence. If instead the officer were to delay entry unless or until flames started pouring out the window, such a delay might result in the complete destruction of a property that could have been saved with prompt action, but it would likely be impossible to prove that anything the fire fighter could have done would have saved the property.

Making emergency responders bear the costs of defending themselves against lawsuits any time they make decisions which result in needless harm to someone would encourage them to focus more on ensuring that any harm which occurred couldn't be pinned on them, than in preventing harm from occurring in the first place. Removing or excessively weakening qualified immunity would likely have this effect.

On the other hand, reforming qualified immunity by making clear that it only protects actions taken in good faith, and limiting protections in cases where plaintiffs who can present a prima facie case that actions were conducted in bad faith, would counter the abuses that result from its present over-application without having such an undue chilling effect on personnel's willingness to take swift action when appropriate.

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  • The qualified immunity afforded to EMTs from state tort law claims (usually be state statute but sometimes pursuant to state common law case law) is different from the qualified immunity defense to claims under 42 USC § 1983 which authorizes a private cause of action for violations of civil rights violations by people acting under color of state or local laws that was created by the U.S. Supreme Court and is what the question is asking about. It isn't the only kind of qualified immunity out there but in context, it is clearly what is being referred to and is a controversial topic.
    – ohwilleke
    Aug 3 at 22:51
  • @ohwilleke: The legal motivations for both kinds of immunity are essentially the same: to encourage people to be willing to make good faith judgments even if the blame, if judgments are mistaken, would fall squarely on their shoulders. Having cops leave criminals to their business for fear of being accused of violating the criminals' rights would have similar effects to having a fireman ignore smoke pouring out from a window. And qualified imminity shouldn't be a particularly controversial subject *in cases where people who might be accused of misconduct are widely recognized...
    – supercat
    Aug 4 at 6:10
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    ...as having been acted in good faith*. The real problem with QI is that it is used to shelter even people whose actions are inconsistent with good faith intentions.
    – supercat
    Aug 4 at 6:11
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    Making emergency responders bear the costs of defending themselves against lawsuits any time they make decisions which result in needless harm to someone would encourage them to focus more on ensuring that any harm which occurred couldn't be pinned on them, than in preventing harm from occurring in the first place — probably it would result in nobody wanting to be an emergency responder anymore.
    – gerrit
    Aug 4 at 6:45
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    @gerrit More likely it would result in more expensive malpractice insurance for EMTs paid by the firms that employ them and stronger indemnification agreements for EMTs between themselves and their employers. EMT work is a major profit centers for the entities that have them, so it would be worth the money to pay for more insurance and indemnify the EMTs themselves (who aren't personally attractive to sue for personal assets since they are typically merely middle class with few assets not exempt from creditor's claims).
    – ohwilleke
    Aug 4 at 16:59
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It's impossible to say anything about Qualified Immunity other than it has been a major contributing factor to systematic abuse & corruption within our legal system since the legislative intent has never been regulated, monitored or adhered to. Immunity itself, qualified or unqualified, is never a good idea for anyone, most especially authority figures, because a lack of accountability is a lack of incentive.

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