Qualified Immunity is Bad for Communities & Police
A Retired Police Leader Reflects on a Murky Legal Doctrine
By Major Neill Franklin (Ret.), executive director of the Law Enforcement Action Partnership (LEAP)
Civil unrest after the killing of George Floyd by Minneapolis police officers has ignited action to change policies surrounding policing. Experts across the country are now working to weaken a problematic legal doctrine known as qualified immunity, which inhibits police accountability. As a retired Chief of the Albany Police Department, I’m all too familiar with how qualified immunity has protected officers from being held accountable and can see why criminal justice professionals and legislators recommend that we reign it in.
First established by the Supreme Court in the ruling of Pierson v. Ray (1967), qualified immunity was formulated to protect public officials, including police officers, from superfluous lawsuits. The rationale was that police should not be afraid to make an arrest or use force when necessary to protect public safety out of fear of being sued.
Our modern understanding of qualified immunity is largely drawn from Harlow v. Fitzgerald (1982). The Supreme Court determined that government officials performing their duties would be shielded from liability for civil damages so long as they did not violate established laws or constitutional rights. This legal precedent sets forth two tests before a police officer can be denied immunity from civil suits:
1. Did the officer violate constitutional rights?
2. Did the officer violate a right clearly established by legal precedent?
In practice, this means a person cannot sue a police officer for civil damages unless the officer violates a constitutional protection, such as the Fourth Amendment right against unreasonable search and seizure, through the use of excessive force. The second test requires precedent to clearly outline such behavior as unlawful before the officer can be found guilty. In 2009, qualified immunity protections were further strengthened by the Supreme Court in Pearson v. Callahan (2009), which allowed lower courts to skip over the first portion of the test. Under this new guideline, few courts evaluate whether officers have used excessive force, let alone whether it was necessary. This narrows the grounds under which an officer can be denied immunity and sued for civil damages to such an extent that it makes misconduct accusations practically unchallengeable, even in extreme circumstances.
The recent killing of Breonna Taylor is a perfect example of how qualified immunity can be used to shield officers accused of misconduct. Earlier this year, Taylor was asleep in bed when Louisville police officers executed a no-knock search warrant and entered her apartment shortly before firing 20 shots, eight of which hit Taylor and killed her. Louisville police justified their actions by stating that they suspected Taylor’s home was being used to smuggle drugs for individuals who didn’t live nearby. No drugs were found in the home. Despite the officers’ blatant negligence, none were charged with any crime. In cases like this, the only avenue left for justice is through the civil courts, and even then, the path is unclear because of legal precedent established by prior court decisions on qualified immunity.
Cases like Breonna Taylor’s and the lack of tools available to the public to hold officers accountable for their actions has exacerbated deep mistrust between the community and law enforcement. The loss of trust means crimes are often unreported and community members refrain from stepping forward to assist officers with solving crimes, even if they’ve been victims of violence themselves. Legal tools like qualified immunity teach the community to see police departments not as public institutions designed to protect them, but as forces to be feared and distrusted. In the long term, this discourages members of the community from joining local police departments and further distances agencies from the people we serve and their needs. When officers are held accountable, people are more likely to trust that the system is really working in everyone’s best interests, not just the interests of officers.
This is why the Law Enforcement Action Partnership recommends fixing qualified immunity, a key component of our recommendations on how to repair policing and improve accountability. While changing this doctrine won’t ensure accountability in law enforcement on its own, it will help repair some of the damage done to police-community relations.
Major Neill Franklin (Ret.) spent 34 years with the Baltimore Police Department and the Maryland State Police. He is now the executive director of the Law Enforcement Action Partnership (LEAP) and lives in Baltimore, Maryland.
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