Skip to main content

What Would Eliminating Qualified Immunity Mean for States and Local Governments?

June 17, 2020

The doctrine of qualified immunity protects state and local officials from individual liability unless the official violated a clearly established constitutional right. Some of the police reform bills Congress is considering eliminate qualified immunity for state and local police and correctional officers.

What does it mean for a state or local official to have qualified immunity and what would the impact be if it was eliminated?

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 U.S. 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 against the government employee or official 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 police and correctional officer use of force 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.” 

Currently, the Supreme Court has been asked to review nine cases involving some aspect of qualified immunity including at least one which asks the court to “recalibrate or reverse” the doctrine of qualified immunity entirely.

One piece of proposed federal legislation eliminates qualified immunity for state and local police and correctional officers. It states that for these officers, acting in good faith or with a belief that conduct was lawful is no longer a defense to a § 1983 lawsuit. Neither is the fact that the law wasn’t clearly established nor that the “state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was unlawful.”

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

  • Contact NCSL

  • For more information on this topic, use this form to reach NCSL staff.