The doctrine of qualified immunity protects state and local officials, including law enforcement officers, from individual liability unless the official violated a clearly established constitutional right.
The evolution of qualified immunity began in 1871 when Congress adopted 42 U.S.C. § 1983, which makes government employees and officials personally liable for money damages if they violate a person’s federal constitutional rights. State and local police officers may be sued under § 1983. Until the 1960s, few § 1983 lawsuits were successfully brought. In 1967, the Supreme Court recognized qualified immunity as a defense to § 1983 claims. In 1982, the Supreme Court adopted the current test for the doctrine. Qualified immunity is generally available if the law a government official violated isn’t “clearly established.”
If qualified immunity applies, money damages aren’t available even if a constitutional violation has occurred. If qualified immunity doesn’t apply, while the government employee or official technically is responsible for money damages, the government entity virtually always pays. So qualified immunity protects states and local governments from having to pay money damages for actions not yet deemed unconstitutional by a court.
The qualified immunity doctrine is very favorable to states and local governments. “Clearly established” means that, at the time of the official’s conduct, the law was sufficiently clear that every reasonable official would understand that what he or she is doing is unconstitutional. According to the Supreme Court, qualified immunity protects all except the plainly incompetent or those who knowingly violate the law.
The Supreme Court has offered multiple justifications for qualified immunity, including that it encourages government officials to “unflinching[ly] discharge . . . their duties” without worrying about being sued for actions a court has not yet held violate the constitution.
The Supreme Court has held that use of force by police and correctional officers violates the Fourth Amendment when it is “excessive.” Police and correctional officers receive qualified immunity if it isn’t clearly established that their use of force was excessive. According to the Supreme Court, while qualified immunity “do[es] not require a case directly on point,” it does require that “existing precedent must have placed the statutory or constitutional question beyond debate.”
For example, in 2014, the Supreme Court held in Plumhoff v. Rickard that police officers didn’t use excessive force in violation of the Fourth Amendment when they shot and killed the driver of a fleeing vehicle to end a dangerous car chase. The court also held that even if the officers used excessive force, they were entitled to qualified immunity because it wasn’t clearly established that shooting the driver in these circumstances amounted to excessive force.
Proposed federal legislation was put forward to modify or eliminate qualified immunity in 2020, but states also took action to address the legal liability of law enforcement officers for excessive force and other unlawful actions through state law.
Colorado is the first state to statutorily limit the use of qualified immunity as a defense in law enforcement cases at the state level. SB 217 (2020) created a new civil action for deprivation of rights by law enforcement officers. The law specifically states that qualified immunity is not a defense and limits the applicability of the Colorado Governmental Immunity Act.
Successful plaintiffs are entitled to reasonable attorney fees and the jurisdiction employing the officer is required to indemnify its employee unless it determines the officer acted without a good faith and reasonable belief that his or her actions were lawful.
In that instance, the officer is personally liable for 5% of the judgment or $25,000, whichever is less. In the event the officer is unable to pay, the jurisdiction is responsible for the entire judgment. Indemnification is not required if the officer is convicted of a crime arising from the same conduct.
Connecticut, via HB 6004, also created a new state civil cause of action for people to seek recourse when an officer deprives them or a class of individuals of the equal protection or privileges and immunities of state law. The law also eliminates governmental immunity as a defense but does not explicitly address qualified immunity in the same way the Colorado law does.
Lisa Soronen, executive director of the State and Local Legal Center contributed to this page.