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It’s time to reform qualified immunity

What is qualified immunity and why is it important?

The doctrine of qualified immunity has been at the forefront of recent legal debate, sparked by the recent injustices in the US accelerating the development and impact of the Black Lives Matter movement. Qualified immunity allows members of the police force to avoid liability for acts which violate civilians’ constitutional rights. The test for qualified immunity currently stands as a two-limbed test but is rarely successfully challenged. 

Qualified immunity exploits the true nature of the inherently broken US legal system: those who are appointed to protect citizens are able to avoid punishment merely by the job they hold, even if done through excessive, unlawful force. The original need for qualified immunity has been abused. It is, therefore, time for real systemic change to protect all citizens equally. Qualified immunity should be abolished in order to enable justice to rightly prevail.

Police car

The history of qualified immunity

The right to sue public officials for violating one’s legal rights was first established in section 1983 of the Civil Rights Act of 1871. However, it wasn’t until 1967 in the case of Pierson v Ray where qualified immunity was first introduced and justified as a defence. Pierson v Ray concerned an incident in Mississippi where both white and black priests were on a prayer pilgrimage to promote racial integration and attempted to use a terminal waiting room which was segregated. This group was arrested for ‘breach of peace’. The Supreme Court considered the conflict between a police official choosing between ‘being charged for dereliction of duty if he does not arrest…being mulcted in damages if he does’. The Court emphasised the importance of protecting the officials potential financial burden as a justification for qualified immunity where an act was done in good faith. Therefore, it was held the policemen had immunity for their acts under section 1983 for arrest with probable cause and in good faith. 

Pierson v Ray was a major turning point and has led to further controversial cases where qualified immunity applies. In 2013, Gabriel Winzer was wrongfully shot by Texan police following reports of a black man in a brown shirt brandishing a pistol. Winzer was riding a bicycle nearby wearing a blue jacket and had been holding a toy gun. As they shot at Winzer 17 times, the police officials claimed they ‘feared for their lives’ and were able to invoke immunity. The recent murder of George Floyd has since exacerbated this entrenched problem of police brutality in the US and brought qualified immunity to the public eye. 

The questionable justification of qualified immunity

Qualified immunity has been supported to ensure police efficiency; the doctrine aims to allow the police force to perform their discretionary functions without fear of prosecution. Furthermore, there is an argument that the doctrine protects police from bankruptcy. In reality, a study by Schwartz showed that it was rare for individual officials to pay costs. Nevertheless, prioritising the financial burdens of police undoubtedly ignores the injustice felt by the victims and their families. Additionally, the offenders have no incentives to better and improve their practices. It is a broken system which essentially undermines the principle of justice and fails to protect civilians’ fundamental constitutional rights.  

The problem with the current test

The current test for qualified immunity was established in Saucier v Katz and is heavily controversial. As it stands, officials escape liability if they can prove a violation of rights was not ‘clearly established’. This means that if a Court cannot point to any precedent which is sufficiently similar, immunity can be invoked, completely undermining the tool of public accountability. If an official can distinguish a set of case facts from another incident merely by a small difference such as shooting distance or location of incident, immunity will apply. A recent case which demonstrates the abhorrence of the ‘clearly established’ step was the 2019 case of Jessop v City of Fresno where officers had stolen over $225,000. It was held since there was no ‘clearly established’ precedent that stealing property seized from a warrant violated any constitutional rights, the officers could claim immunity. This clearly illustrates a barrier to justice exists and must be knocked down.

A graph indicating how there is progressive movement towards favouring the police where the element of ‘prior precedent’ is becoming a bigger hurdle for plaintiffs.

Another problem is establishing precedent. Currently, it is rather unclear as lower courts need not  consider the first element of the qualified immunity test, following Pearson v Callahan. This case allowed judges to focus on the second element of ‘clearly established’. This has been heavily criticised for creating a ‘loop’ where case law is essentially frozen, according to Farmer. It is now much harder for cases to satisfy both test requirements as there is not existing case precedent. This hurdle must be eradicated.

Reforming qualified immunity

The need for ‘clearly established’ precedent introduces various problems. Not only does a ‘sufficiently similar’ case need to be identified but cases can be distinguished with even the smallest of differences. It’s hard to understand how courts can be so dismissive when it comes to violations of constitutional rights. Without precedent, officials will be immune. Therefore, it’s crucial that the second element of the test is challenged and reformed. Case law must reflect societal developments, in order to best protect citizens and their rights. If not, the US legal system will forever favour state officials, even when they have clearly violated the law. Aptly described by Willett as ‘Heads defendants win, tails plaintiffs lose’, change must happen.

US Capital building

 At the time of writing, representatives in the Senate and Congress have proposed the Ending Qualified Immunity Act calling for the elimination of immunity for law enforcement. Meanwhile, on the 19th June, Colorado governor Jared Polis signed a reform bill which ended qualified immunity for officers. It is clear that reform is happening, albeit a little too late.

By Beth Zheng

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