The doctrine provides that a police officer cannot be put on trial for unlawful conduct, including the use of excessive or deadly force, unless the person suing proves that:

1. the evidence shows that the conduct was unlawful; and
2. the officers should have known they were violating “clearly established” law, because a prior court case had already deemed similar police actions to be illegal.

Even if a person can demonstrate that the police officer acted unlawfully, the officer will not be liable unless both prongs have been satisfied. The second requirement provides an especially powerful shield for officers because courts often require a nearly identical case to use as “clearly established” precedent.

For example, in 2014, Nashville police officers released a police dog on a suspect after he had surrendered and was sitting with his hands raised. The man sued for compensation for his injuries. To satisfy the “clearly established law” requirement, he relied on a decision holding that officers had violated a person’s rights when they released a police dog on a man who had surrendered by lying down. While the facts of the Nashville case were nearly identical to the relied-on precedent, the court held that this precedent did not “clearly establish” that it was unconstitutional to release a police dog on a suspect who had surrendered by sitting with his arms raised. As a result, the officers were granted immunity, which prevented the injured man from being compensated.

In another case, a court granted qualified immunity to an officer who in 2014 used a “takedown maneuver” against a small woman, slamming her to the ground, breaking her collarbone, and knocking her unconscious. The court noted that although past cases were similar, there was no precise set of facts where a “deputy use[d] a takedown maneuver to arrest a suspect who ignored the deputy’s instruction ‘to get back here.’” When the woman sued to hold the officer accountable for his use of excessive force, the court granted the officer qualified immunity, and the badly injured woman was left without a remedy.

In recent years, judges have often ignored altogether the question of whether an officer acted unlawfully. That way, courts avoid setting a precedent for future cases, which allows the same conduct to repeatedly go unpunished. As one federal judge summarized, this is a “Catch-22”:

Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered because no one has answered them before. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability.

Qualified immunity has come to mean that even when officers act illegally and maliciously and cause serious harm, courts refuse to repair the injury, instead allowing officers to get away with misconduct.

During the period of Reconstruction (1865-1876) that followed the Civil War, thousands of recently emancipated Black people were menaced, lynched, and subjected to indiscriminate violence by white police officers and mobs.

To help vindicate the rights of African American victims of racial terrorism, Congress passed the Civil Rights Act of 1871 (also known as the Ku Klux Klan Act), which was codified as 42 U.S.C. § 1983. This law provides a private right of action for individuals whose constitutional rights have been violated by police officers or other state or local officials.

In the 80 years between Reconstruction and the civil rights movement, § 1983 was a critical mechanism for Black people—so often presumed guilty and dangerous—to remedy constitutional violations by law enforcement.

In the Supreme Court case of Monroe v. Pape in 1961, a Black family successfully sued white Chicago police officers who broke into their house without a warrant, rounded them up, made them stand naked in the living room, and looted their home. As the Court explained when holding the officers responsible, the purpose of the Civil Rights Act was to “give a remedy to parties deprived of constitutional rights, privileges, and immunities by an official’s abuse of his position.”

In 1967, at the end of the civil rights movement, the Supreme Court began to retreat from this civil rights remedy by announcing the legal doctrine called qualified immunity.

In 1982, the Court in Harlow v. Fitzgerald dramatically expanded the doctrine to protect public officials from even malicious conduct as long as the “conduct [did] not violate clearly established statutory or constitutional rights.” Harlow dealt with the illegal actions of White House aides, but the Court’s rule was applied broadly to include the conduct of police officers.

Since that time, and throughout the current era of mass incarceration, the Court’s doctrine has served as the basis for denying a remedy to victims of violent and deadly police misconduct, effectively creating a category of injuries without repair.

In April 2013, for example, police officers in Texas fired 17 shots and killed a young mentally impaired Black man whom they had seen riding a bicycle and carrying a toy gun in his belt. In granting the officers qualified immunity, the court opined that it “cannot conclude that [the man’s] right to be free from excessive force was clearly established here.”

In Kisela v. Hughes, an Arizona police officer shot a mentally impaired woman four times as she stood “stationary” in her driveway holding a kitchen knife at her side. The record revealed that the seriously injured woman was “composed and content” and speaking with her roommate from a distance when the officer opened fire. In granting immunity, the Supreme Court held in 2018 that the officer had not violated “clearly established law.”

In dissent, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote that the “one sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers . . . It tells officers that they can shoot first and think later . . . and it tells the public that palpably unreasonable conduct will go unpunished.”

The “shoot first” approach to policing disproportionately harms Black people, who are killed by police in the U.S. at more than three times the rate of white people.^{1 Gabriel L. Schwartz, Jaquelyn L. Jahn, “Mapping fatal police violence across U.S. metropolitan areas: Overall rates and racial/ethnic inequities, 2013-2017,” PLOS ONE (June 24, 2020).} Black people are also stopped and frisked without cause at significantly higher rates.^{2 Christopher Dunn, Michelle Shames, “Stop-and-Frisk in the de Blasio Era,” NYCLU (March 2019).} Section 1983, promulgated to protect Black people and to provide a remedy for racial violence and injustice, remains as needed as ever but has been largely nullified by qualified immunity.

The Supreme Court has the authority to end the doctrine of qualified immunity that it created.

Congress also has the authority to end the doctrine. It can simply amend 42 U.S.C. § 1983 to remove qualified immunity as a defense for police officers who engage in civil rights violations. The House of Representatives has recently proposed H.R. 7085 (the Ending Qualified Immunity Act) to eliminate the doctrine, restore the original intent of § 1983, and ensure that people can pursue a remedy for harm caused by unlawful official conduct.

There’s no federal count of the number of civilians killed or seriously injured by police, but estimates put the number of deaths alone at about 1,000 each year.

Qualified immunity shields police officers—including those who have engaged in excessive force—from even going to trial. Ending qualified immunity doesn’t mean police would automatically be held liable for alleged excessive force. But it would mean that people who are harmed by police could get their day in court.

The prospect of going to trial and having to pay settlements or jury awards would deter individual officers from engaging in excessive force and violating civilians’ rights. And it would provide a financial incentive for departments and elected officials to make the changes needed to eliminate police violence and misconduct.