• Rebecca Schneider


In this journey of un-learning and active ally-ship, we will be encountering unfamiliar terms and policies that have been enacted for YEARS, terms and policies that greatly impact every single American's life, more than we even know. This alone debunks the statement "I'm just not a political person."By existing in this country and world, we follow certain norms and laws that makes us all political - regardless of your political views.

QUALIFIED IMMUNITY is a trending term in this racial and social justice revolution and fight towards police reformation. All it really is an official doctrine that protects government officials (police officers) when they violate someone’s constitutional right.. Keep scrolling to learn more.


The Supreme Court invented qualified immunity in 1967, describing it as a modest exception for public officials who had acted in “good faith” and believed that their conduct was authorized by law.

Fifteen years later, in Harlow v. Fitzgerald, the Court drastically expanded the defense. The protection afforded to public officials would no longer turn on whether the official acted in “good faith.”

  • Instead, even officials who violate peoples’ rights maliciously will be immune unless the victim can show that his or her right was “clearly established.”

  • Since the Harlow decision, the Court has made it exceedingly difficult for victims to satisfy this standard.

  • To show that the law is “clearly established,” the Court has said, a victim must point to a previously decided case that involves the same “specific context” and “particular conduct.

An officer who knowingly violates someone’s constitutional rights will generally be protected from suit unless the victim can identify previous judicial opinions that addressed the specific context and conduct.

This doctrine has become one of the chief ways in which law enforcement avoids accountability for misconduct and, in some cases, even proven constitutional violations.

Ordinary people—whether they’re doctors, lawyers, or construction workers—are expected to follow the law. If they violate someone else’s legal rights, they can be sued and required to pay for the injuries they’ve caused.

Under the doctrine of qualified immunity, public officials are held to a much lower standard. They can be held accountable only insofar as they violate rights that are “clearly established” in light of existing case law. This standard shields law enforcement, in particular, from innumerable constitutional violations each year. In the Supreme Court’s own words, it protects “all but the plainly incompetent or those who knowingly violate the law.”

  • Qualified immunity is a type of legal immunity. Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all.

  • Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions. Although qualified immunity frequently appears in cases involving police officers, it also applies to most other executive branch officials. While judges, prosecutors, legislators, and some other government officials do not receive qualified immunity, most are protected by other immunity doctrines.

Under qualified immunity, government officials can only be held accountable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or it exists, but just in another jurisdiction—the official is immune, even if the official intentionally violated the law.

By default, all government officials are immune from liability if they violate your rights. Whether your rights were actually violated doesn’t necessarily matter.

Unless the victim can point to a judicial decision that happened to involve the same context and conduct, the officer will be shielded from liability.

For example, a Texas appeals court recently held that a prison guard who pepper sprayed an inmate in his locked cell “for no reason” did not violate a clearly-established right because similar cited cases involved guards who had hit and tased inmates for no reason, rather than pepper spraying them for no reason.

Do courts need to decide whether the Constitution was violated before granting qualified immunity?

No. As explained above, the clearly-established test requires a victim to identify a nearly identical earlier decision by the U.S. Supreme Court or a federal appeals court in the same jurisdiction. But thanks to the Supreme Court’s 2009 decision in Pearson v. Callahan, courts may—and frequently do—decide cases without addressing whether the actions at issue violate the Constitution. Such a system fosters what some scholars call “constitutional stagnation” since courts may simply ignore the underlying constitutional issues and decide cases under qualified immunity.

For instance, when a police officer shot a 10-year-old child while trying to shoot a non-threatening family dog, the Eleventh Circuit U.S. Court of Appeals held that the officer was entitled to qualified immunity because no earlier case held it was unconstitutional for a police officer to recklessly fire his gun into a group of children without justification. The Court also declined to establish that rule. Not only was the officer let off the hook in that case, but the very same officer could act the same way again, and would still be entitled to qualified immunity.

Does qualified immunity apply in criminal cases?

No. Qualified immunity applies only in civil lawsuits, not criminal prosecutions. Yet such civil suits are the only means by which individuals or families can get compensation for the violation of their constitutional or civil rights. And in practice, civil lawsuits are often the only means to seek justice at all because prosecutors—themselves government officials—are typically reluctant to bring criminal charges against their government colleagues, especially police officers who are crucial to the work prosecutors do on a daily basis.

Does qualified immunity apply when government officials intentionally violate the law?

Yes. Qualified immunity applies even when officials intentionally violate the law. The primary consideration in a qualified immunity analysis is whether there is an earlier court case specifically stating that the particular actions of an official are unconstitutional.

So, for example, the Ninth Circuit U.S Court of Appeals recently held that police accused of stealing $225,000 while executing a search warrant were entitled to qualified immunity because that court had “never addressed whether the theft of property covered by the terms of a search warrant…violates the Fourth Amendment.” It did not matter “that virtually every human society teaches that theft generally is morally wrong.”

Does qualified immunity apply when government officials do something obviously wrong?

Yes. Incompetence is not an exception to qualified immunity.

The Fifth Circuit U.S Court of Appeals recently granted an officer qualified immunity after he picked up a “mentally infirmed” man and, per an unwritten custom of dropping vagrants into other jurisdictions, drove the man to the county line and dropped him off along the highway at dusk, where he was later struck and killed by a motorist.

Who has the burden to establish qualified immunity?

Unlike most typical defenses, a victim or the victim’s family has to convince a court that qualified immunity doesn’t apply. All a government officer has to do is invoke the doctrine. If the victim can’t persuade a court qualified immunity shouldn’t apply—by pointing to a specific earlier case—the victim’s case is thrown out. And if the case is not thrown out the first time around, the government official has several more opportunities to invoke the doctrine.

Although ending qualified immunity wouldn’t solve all problems of police abuse, it would unquestionably be an improvement. And unlike other proposals for police reform, eliminating qualified immunity would immediately apply to all government officials and could be accomplished either by the U.S. Supreme Court or Congress.

More resources:

FAQs about Qualified Immunity (Institute for Justice)

Supreme Court Weighs Qualified Immunity For Police Accused Of Misconduct (NPR)

What is Qualified Immunity? (Vox)

What Is Qualified Immunity, and What Does It Have to Do With Police Reform? (Lawfare)

Qualified immunity (Cornell Law School)

Harlow v. Fitzgerald :: 457 US 800 (1982) :: Justia US Supreme Court Center

What Is Qualified Immunity and Why Do Some Want To End It? (Snopes)

Is Qualified Immunity Unlawful? (Chicago U)

Qualified Immunity for Civil Rights Violations: Refining the Standard (Cornell Law)


Qualified Immunity In Civil Rights Lawsuits (Shouse California Law Group)