Qualified Immunity
- Karen McGinnis
- Jun 1, 2021
- 4 min read
Qualified Immunity
There are many complicated terms in the news today. Understanding them is critical in determining whether our elected officials are representing our wishes and opinions. This knowledge is essential to understanding whether or not the news media is accurately reporting the details of current events.
Opinions and votes of lawmakers influence the formulation of laws that will affect not only ourselves, but our children and grandchildren. Understanding and communicating your position is critical whether it be in text or letters to representatives, discussions with friends, and family, or influences in the voting booth.
We have seen in previous discussions how “fear and hate” have created headlines and changes in our view of current events. Critical Race Theory affects our views on education, zoning, legal positions and everyday life. Another major current issue under scrutiny is Qualified Immunity.
For good or for ill, the concepts of fear and hate, critical race theory and qualified immunity have given rise to many of the social movements that are in the news today. An objective analysis of the terms is important in formulating an opinion. You may review previous discussions of these terms at: https://karenmac1999.wixsite.com/website-1 click BLOG and do further research at the referenced locations listed for each topic.
What is qualified immunity?
Simply put, qualified immunity is a legal doctrine that allows federal police officials and other government officials to avoid CIVIL legal liability for actions they have engaged in IN GOOD FAITH. It is a type of legal immunity. They can still be sued but can defend themselves or excuse their actions based on “qualified immunity.”
Where was the idea of qualified immunity originated?
The Supreme Court of the United States in a landmark decision in 1982 held that “federal government officials” were exempt from responsibility for violation of Constitutional Rights in certain circumstances. Money damages were not included in this ruling. Because non-federal individuals involved were not really included in this Supreme Court ruling, there were conditions which would apply and only federal government officials were named as having qualified immunity. This last point is often lost on the population and the waters around qualified immunity are muddied.
What specific circumstances apply to qualified immunity?
The Supreme Court case in 1982 applied to federal government employees as individuals. Exceptions of responsibility relate to other current findings that the Court handed down. It clarifies that officials must 1) show that his/her job requires immunity in order to preserve its function. And 2) the official must show that he/she was performing their duty at the moment in question.
These requirements were still not restrictive enough. Further rules were handed down in 1986, 1987, 2001 and 2009 as the Supreme Court further clarified the application of qualified immunity.
These findings added the following conditions:
1)Plaintiffs (those seeking damages or justice) must show that their Constitutional Rights were violated.
And
2) the Constitutional Rights being violated were “clearly established” by a precedent ( or a prior case, by definition)
These two findings were to be critical.
The burden of proof to show the violation of a Constitutional Right would have to be established by a prior legal opinion in a prior case. Does that make this requirement a Catch 22? How can there be a prior case if the claim has to be based on a prior case in the first place?
Cases could be thrown out based on no exact case ever having been tried, heard, or an opinion given. Now not only would there have had to be a “prior case” but it would have had to be an “exact case” in order for the civil rights to be “clearly established.”
So now in order to use the qualified immunity on either side, there had to be an exact precedent, and a Constitutional Right that was clearly established. Suddenly things are way too complicated!
These rulings alone narrow the field of cases. It gives a wider path to what may be seen as “unqualified immunity.” In other words, it was so hard to prove, that often no attempt was even made. It began to be applied to cases where the definition of qualified immunity did not exist. It was thrown around without anyone really understanding it except legal experts, and applied to situations which were not initially intended.
So, if “anything goes” and no one could expect to be called upon for violating Constitutional Rights, they then added the complication of explaining behavior based on acting in “good faith” and the assumption that actions and behaviors were acceptable. Those perpetrating violation of Constitutional Rights did so assuming they were acting correctly, doing the right thing, and were within the law. Obviously, these situations became circumstantial and subjective. Its muddy waters all over again!
Recent state legislatures have sought to address qualified immunity. Since it was defined by the Supreme Court as applying to federal employees, state law did not really change Supreme Court rulings. Federal Law remained Federal Law. Changes by state legislatures did not address Federal Law. These state laws really were labeled as actions toward “police reform”.
In addition to the question of application to other than federal employees, there is another underlying question. Some wonder if state legislation will limit the employee pool for some positions. If the threat of violating Constitutional Rights looms large and is menacing, it may affect the quality and quantity of applicants for certain jobs. In contrast, the opinion of others is that if this is a deterrent, so much the better for the professions impacted.
In conclusion, qualified immunity is a manufactured doctrine with limited and specific applications. It is NOT unqualified immunity. It is NOT absolute immunity.
In this light there is room for debate. The debate will occur in courtrooms, legislatures and gatherings. The discussion may be partisan as there are considerations of the people involved, and regarding the futures of the people involved, on either side of the discussion. Disagreement can be useful in finding solutions. The goal is to find a solution that works to the benefit of all involved.
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As always this is a consciousness raising discussion, not particularly pointed to supporting one position over another. Comments are appreciated at karenmac1999@hotmail.com
Further research should take place on an individual basis. Here are some sites to be considered:
and many other articles and books on the subject of qualified immunity.
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