Qualified immunity must be ended across the board

In July 2016, Cleveland police officers stopped a 20-year-old Black man named Shase Howse. According to Howse, police slammed him to the ground, struck him twice in the back of his neck while he was trying to enter his own home, and took him to jail. Howse subsequently sued the police officers for using excessive force. But because of a judicially created doctrine called qualified immunity, the officers were not held accountable. In all too many cases like these, justice could have been served, if it were not for qualified immunity.

In 1967, the Supreme Court created from whole cloth the legal doctrine of qualified immunity, and it has repeatedly expanded the defense ever since. As the doctrine currently exists, government officials, including police officers, cannot be held personally liable for their official misconduct unless they have violated a constitutional right that was “clearly established” at the time of the violation. In practice, this has become very difficult because plaintiffs are practically always required to identify prior case law involving nearly identical fact patterns. Even in cases in which the defendant’s actions were obviously unconstitutional, the plaintiff is often denied relief and the government official escapes accountability.

Unfortunately, that’s exactly what happened in Howse’s case. In 2020, the U.S. Court of Appeals for the Sixth Circuit refused to consider whether the police violated Howse’s rights and held that the police officers were entitled to qualified immunity because there was no prior case exactly like Howse’s. And earlier this year, the U.S. Supreme Court declined to review this case, thereby letting the Sixth Circuit’s decision stand. This pattern repeats itself again and again, enabling the cycle of police violence to continue without accountability.

In March, the U.S. House of Representatives passed the George Floyd Justice in Policing Act, which would eliminate qualified immunity as a defense for law enforcement officers, therefore allowing victims of the kind of police violence Howse and others have experienced to hold law enforcement officers accountable. While some argue that it’s not fair to hold police officers liable if they didn’t know that they violated the Constitution, in many cases, this concern is irrelevant because indemnification arrangements — processes of compensating for injuries — practically always shift financial liability away from those individual officers to their employers. Furthermore, constitutional doctrines that govern the use of force already give police leeway to make reasonable mistakes. Qualified immunity, however, shields officers from suit even when they trample on constitutional rights.

Even still, the Justice in Policing Act does not go far enough. While there are countless qualified immunity cases dealing with law enforcement officers, qualified immunity reaches further than the realm of policing. It applies to a wide variety of government action and has thwarted justice for constitutional violations that take place in schools, child protective contexts, state prisons, and more.

For example, an Arizona school nurse and administrative assistant subjected a 13-year-old girl to a strip search of her bra and underpants because they believed she had pain relief pills. This was an apparent violation of the girl’s Fourth Amendment rights; the girl’s mother sued, arguing school officials had no reason to believe the girl was hiding a pain reliever in her underpants. The Supreme Court held that the school officials could not be held accountable in a court of law for their misconduct because of the impossibly high threshold created by the Supreme Court’s qualified immunity doctrine.

In another case, the Second Circuit granted qualified immunity to prison officials who had kept a pretrial detainee in solitary confinement for more than a year simply because the detainee asked a question about commissary access. While the Second Circuit held that the prison officials had violated the Constitution, the court granted qualified immunity, even though as the dissent observed, the prison official’s actions were no different from “loading [him] with chains and shackles and throwing him in a dungeon.” Once again, because there wasn’t a case with a similar enough fact pattern, justice was not delivered.

Qualified immunity cases like these, which do not involve police officers, are not covered by the Justice in Policing Act. Given that, several members of Congress — led by Sen. Ed Markey (D-Mass.) and Rep. Ayanna Pressley (D-Mass.) — have proposed the Ending Qualified Immunity Act, which would eliminate qualified immunity across the board, not just in the context of policing.

Congress should make clear that all government officials should be held accountable when they violate people’s constitutional rights. The doctrine of qualified immunity must be ended completely.

Elizabeth Wydra is president of Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution’s text and history. She previously served as clerk at the U.S. Court of Appeals for the Ninth Circuit, Follow her on Twitter @ElizabethWydra.