Qualified Immunity: How It Started vs. How It’s Going


By Adam Cable

Photo by Gayatri Malhotra on Unsplash

Just over a year ago, my roommate and I were driving down a quiet, two-lane road in Heber, Utah, on our way back from paddleboarding at Deer Creek Reservoir. After a few minutes, a cop came up behind us and pulled us over. It was a quick and painless experience. He asked us a few questions, ensured we were not intoxicated, and let us go on our way. Not once did I think of the possibility of harm coming my way during that traffic stop. But for millions of Americans, that’s not the reality they get to live in.

The Cornell School of Law describes qualified immunity as legal protection for government officials from lawsuits “alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a ‘clearly established statutory or constitutional right.” Police advocates often justify the need for qualified immunity through the need for officers to do their job without fear of “frivolous lawsuits,” as Becky Sullivan noted in a recent article for NPR.

Since its inception, the Supreme Court’s upholding of the doctrine has strengthened its precedence, and there hasn’t been any sort of rebuttal to its justification. We all know how powerful Supreme Court precedent is. In this particular case, it’s been powerful enough that police officers now think less about the consequences of their actions. The police are not the problem, and criminals are not the problem: no individual with a stake in this issue is the problem. The legal institution is the problem, and it’s created an ugly elephant in the courtroom that it’s not capable of confronting.

When qualified immunity came into existence, no necessary clarification could give an idea as to what a “clearly established” constitutional right was. Two hundred years later, we’re still trying to figure out how many of the rights enumerated in the Constitution apply. Unfortunately, their definitions are blurrier than we’re willing to admit, which doesn’t fit well in a judicial system that relies on precise definitions.

The members of the Court have done the best they can to make something out of the nebulous ideas of free speech, right to life, excessive force, etc. Still, the judicial branch cannot change the definition or implementation of qualified immunity after establishing a strong precedent. It would take a judicial about-face for that to occur.

The legislative branch, however, has the tools necessary to enact change. In New York, Senate Bill S1991 is currently in committee and proposes an end to qualified immunity. This would require government and law enforcement officials to find an alternative defense that doesn’t rely on qualified immunity when they are on trial for their actions. This encourages cops to perform their duties more carefully and encourages people of color to feel more at ease during interactions with law enforcement.

While it initially may seem like a slap in the face for law enforcement officials, S1991 equips law enforcement with the only mechanism that will unequivocally improve their job performance: accountability. It’s what drives parents’ involvement in their children’s lives. It’s what increases the productivity of large, powerful organizations. It’s what can potentially save thousands of black lives that matter now more than ever.

It’s rare to find a policy that can be “the tide that lifts all boats,” but ending qualified immunity is one of those magnificent tides that can raise the bar for policing and raise African-Americans’ confidence in the people who protect their communities. The time has come for us to let that tide roll in.



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