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?
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.
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).
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 .
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.
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.
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.
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.
