Qualified immunity: What police, protesters and lawyers say about controversial standard

Elizabeth DePompei
Indianapolis Star

As the public debate over reforming American policing rages, a controversial and complex legal standard that shields police officers from civil action is taking center stage. 

Qualified immunity is a defense often invoked by government employees, including police officers, accused of violating a person's constitutional rights. Critics say the standard makes it nearly impossible to hold officers accountable in civil court. Proponents argue it's a needed protection for officers who have to make snap judgments in the line of duty. 

And while it's an issue that's been debated before, one expert says this time might be different. 

"It's gotten so extreme that you're seeing push back from all areas of the political spectrum," said Jennifer Mason McAward, associate law professor at University of Notre Dame. "So I think this is a new moment in terms of how people are thinking about qualified immunity."

The origins of the standard

Qualified immunity stems from the Civil Rights Act of 1871. Known then as the Ku Klux Klan Act, it "was designed to eliminate extralegal violence and protect the civil and political rights of four million freed slaves" at a time when racist vigilante groups like the KKK were powerful, according to U.S. House history archives

Part of the problem, McAward said, was that some police officers and public officials were either members of the KKK or turned a blind eye to the Klan. 

"So you had government action that was complicit in all the violence against freed slaves," she said. 

The act included a measure giving Americans the ability to sue public officials who violated their rights. That right is now included in Section 1983 of U.S. Code. Lawsuits invoking that right are often called "1983 lawsuits," McAward said.

In 1967 in a case involving the arrest protesters, the Supreme Court set the qualified immunity standard to protect officers and other government officials who had acted in "good faith." That standard morphed over the years, expanding those protections with a 1974 case. One local attorney described it as the standard "put on steroids." 

How it works today 

Government employees today can invoke qualified immunity as a defense so long as the alleged behavior doesn't violate a person's "clearly established" right. Intent and negligence are irrelevant, McAward said. 

In order to successfully fight a qualified immunity defense, McAward said plaintiffs essentially have to point to a published court case "where the facts are virtually identical" and where the alleged violation was indeed found to be a violation of a person's rights. 

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A defense attorney files a motion invoking the qualified immunity defense and it's up to the plaintiff to dispute it. If a judge accepts the defense, the case is dismissed, McAward said.

"So to put it the other way, it's very easy for government employees to prevail on qualified immunity claims because there are very few published court cases where the facts are identical," McAward said. "And that's particularly true in police violence cases where every case is going to have its own set of facts."

U.S. House Democrats want to eliminate qualified immunity for that reason. Republicans, for the most part, won't touch the standard. Sen. Mike Braun, R-Ind., tried to stir a bipartisan debate when he introduced his Reforming Qualified Immunity Act earlier this week. The bill would narrow the standard's scope, making it harder to invoke.

Braun hoped his bill could be debated in the Senate and attached to Republicans' proposed comprehensive reform bill. But on Wednesday, Democrats blocked that bill from moving forward, putting a halt to any bipartisan debate over qualified immunity.

What critics say 

Indianapolis attorney Craig Karpe represented the family of Aaron Bailey, who was killed in 2017 by two Indianapolis Metropolitan Police Department officers following a brief vehicle pursuit.

The officers fired 11 shots into the vehicle. They said they saw Bailey reaching toward the center console, where they feared a gun may have been stored. Four of the rounds struck Bailey in the back. No gun was found. 

A settlement was reached in the civil case before a qualified immunity defense was ever invoked. But "that probably would've been the next step," Karpe said. 

"I'd suggest that qualified immunity has become so fact-specific in its application by the courts that 90% of cases are eligible to be bounced on qualified immunity," Karpe said. "It’s too high a standard, to me." 

Destiny Brown has been on the front line of recent demonstrations protesting police brutality in Indianapolis. Eliminating qualified immunity is high on her demand list. Reforming it isn't enough, she said. 

"Because (reforming) it doesn’t truly encompass the systemic change that we need in this country especially around excessive police violence," she said. 

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Under Braun's proposal, the standard could only be used as a defense if the officer's conduct is already protected by law or a previous court ruling. Brown said she's happy to see a Republican moving the conversation forward, but that Braun's proposal falls short. 

"It basically is saying that if you are consistent with the laws in place right now... then you get this immunity," she said, pointing out that slavery was once protected by law. 

"Just because things are in the law does not mean that it's right... especially for Black people."

What the other side says 

Indiana Fraternal Order of Police President William Owensby previously told IndyStar he thought Braun "was under the assumption that qualified immunity is unqualified immunity.

"And that isn't the case," Owensby said, adding that "nothing prevents" an officer from being internally disciplined, fired or criminally charged.

U.S. Sen. James Lankford, R-OK, who worked on the GOP bill, echoed that idea in an interview with PBS Newshour on Wednesday. The Republican proposal does not address qualified immunity. 

If police officers "do something criminal they end up in prison just like anyone else who violates a crime," Lankford said. "The whole issue about qualified immunity is after they’ve had a criminal offense, they were also going to go back to their family to take away their home and take away their pension" through a civil suit. 

Sen. Tim Scott, R-SC, who authored the bill, has said the issue of modifying the standard is a non-starter. In a June 19 statement, Scott said,“The White House has said removing qualified immunity is a red line, and I want to see something that can be signed into law.”

The future of qualified immunity 

Republicans have lambasted Democrats for not allowing their bill to go to the floor for debate. Lankford told PBS it was a missed opportunity for bipartisanship and noted that up to 20 amendments could have been added to the bill. 

Braun told IndyStar on Thursday that he's "certain" his qualified immunity proposal would have been one of those amendments. 

"So sadly it's on the back burner," he said. 

Even if qualified immunity were to be modified or eliminated, Indianapolis attorney Jon Little said barriers to holding officers accountable in civil court would still exist. Little represented Mara Mancini, who in 2015 was standing on her front porch when she was mauled by a police K9 in pursuit of a man who had fled police on foot through her west-side neighborhood. 

A judge ruled that although Mancini "suffered horrendous injuries and a grievous lack of discretion by the officers," the actions did not violate Mancini's constitutional rights.

"It's a great example of how even if we fixed qualified immunity, somebody as innocent as a pregnant woman on her front porch can be violated by the police and have no redress," he said.

Little said it shows that "the judiciary has lost touch with what it's like to be a regular person." 

"They don’t know what it's like to have interactions with the police."

Contact IndyStar reporter Elizabeth DePompei at 317-444-6196 or edepompei@indystar.com. Follow her on Twitter: @edepompei.