It Is Time to Revisit Qualified Immunity. With recent incidents of police misconduct and a renewed debate on the role of policing and police tactics, the doctrine of qualified immunity for police officers has come under scrutiny

• Author: David Coyle
• Pages: 5-10

Appellate Practice

Summer 2020, Vol. 39 No. 4

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September 03, 2020

It Is Time to Revisit Qualified Immunity

With recent incidents of police misconduct and a renewed

debate on the role of policing and police tactics, the doctrine

of qualified immunity for police officers has come under

scrutiny.

By David Coyle

With recent incidents of police misconduct rocking the nation and a renewed debate on the role

of policing and police tactics, the doctrine of qualified immunity for police officers has come

under scrutiny. Under section 1 of the Civil Rights Act of 1871, individuals can sue police

officers and other government officials for monetary damages when their federally protected

civil rights are violated. Pub. L. No. 42-22, 17 Stat. 13 (1871) (codified as amended at 42 U.S.C.

§ 1983). The doctrine of qualified immunity shields officers and other government officials from

these suits when their conduct does not violate “clearly established” rights. The issue, though,

often becomes this: At what level of specificity should “clearly established” law be defined?

On June 15, 2020, over a dissent from Justice Clarence Thomas, the U.S. Supreme Court decided

not to grant certiorari on several cases asking them to revisit the qualified immunity doctrine.

Baxter v. Bracey, 140 S. Ct. 1862 (2020) (Thomas, J., dissenting from the denial of certiorari).

The ball has now been passed to Congress, where some members are eager to take up a debate

on changes to the doctrine. If Congress does not act, the Supreme Court should revisit qualified

immunity, as it has diverged significantly from Congress’s intent in enacting the Civil Rights Act

of 1871.

The Problem with Qualified Immunity

A recent case before the U.S. Court of Appeals for the Fourth Circuit highlights part of the

problem. As the nation reeled from the death of George Floyd at the hands of the police, the

Fourth Circuit was confronted with the question of whether five officers should be entitled to

qualified immunity for “shoot[ing] a man 22 times as he lay motionless on the ground.” Estate of

Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th Cir. 2020). The district court had granted

summary judgment for the officers on qualified immunity grounds, reasoning that the officers’

conduct did not violate “clearly established law.” Id. at 667. If you think the district court’s

conclusion cannot possibly be correct, you are not alone. The Fourth Circuit reversed the district

court’s ruling, finding that viewing the evidence in the light most favorable to the plaintiff, the

officers were not entitled to qualified immunity. Id. at 668. The Fourth Circuit explained its

reasoning, noting that at the time of the incident, “it was clearly established that law enforcement