Legal Barriers to Challenging Excessive Force by Police


Reuters investigative reporters examined over 500 cases to test whether Supreme Court precedent has effectively created, as Justice Sonia Sotomayor put it, “an absolute shield” against accountability for police officers accused of using excessive force.

Americans first got the right to sue police officers in 1871, when Congress passed a law allowing lawsuits against state and local authorities who refused to protect African Americans from—or even participated in—racial terror lynchings and other acts of racial violence by groups like the Ku Klux Klan.

In 1967, the Supreme Court limited that right by announcing a legal doctrine called qualified immunity, ostensibly to protect government employees from frivolous lawsuits.

Instead, Reuters found that “qualified immunity, under the careful stewardship of the Supreme Court, is making it easier for officers to kill or injure civilians with impunity.”

What is qualified immunity?

The doctrine provides that a police officer can’t even be put on trial for using excessive force unless the person suing proves that:

  1. the evidence shows or could convince a jury that the officer used excessive force; 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.

This two-part test means that even if a court finds that the officer used excessive force, it will grant immunity if the facts don’t match an earlier case finding the same conduct to be illegal.

The “clearly established” law requirement makes it hard to win against the police, Reuters found, because courts are increasingly requiring a nearly identical case to use as precedent—and a court can almost always find or make up a factual difference between the case it’s reviewing and an earlier case.

Since 2009, judges have been allowed to ignore altogether the question of whether an officer used excessive force. That way, they avoid setting a precedent for future cases, which allows the same conduct to repeatedly go unpunished, Reuters found.

An Absolute Shield

Reuters found that since 2005, the courts have shown an increasing tendency to grant immunity in excessive force cases. Reuters identified more than three dozen cases in which qualified immunity protected officers whose actions had been deemed unlawful:

Outside of Dallas, Texas, five officers fired 17 shots at a bicyclist who was 100 yards away, killing him, in a case of mistaken identity. In Heber City, Utah, an officer threw to the ground an unarmed man he had pulled over for a cracked windshield, leaving the man with brain damage. In Prince George’s County, Maryland, an officer shot a man in a mental health crisis who was stabbing himself and trying to slit his own throat.

The increasing frequency of these cases has led to growing criticism from a broad coalition of lawyers, legal scholars, civil rights groups, politicians, and judges that spans the political spectrum. They say qualified immunity lets police brutality go unpunished and denies victims their constitutional rights, Reuters reports.

Reuters found that the Supreme Court itself intervenes more often on behalf of police officers than civilians—an officer was 3.5 times more likely than a civilian to have a petition for review accepted by the Court. And in the cases it accepts, the analysis revealed, the Court nearly always decides in favor of police.

As Justice Sonia Sotomayor wrote in a 2018 dissent, this “one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”

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

“Why are there so many police shootings?” Dale Galipo, a prominent California civil rights attorney, told Reuters. “I would say one of the reasons is there’s no accountability, there’s no deterrent.”

Indeed, decisions like Kisela v. Hughes, in which the Court reversed a lower court’s denial of immunity to a Tucson, Arizona, officer who shot a mentally ill woman four times as she walked down her driveway while holding a large kitchen knife, send “an alarming signal to law enforcement officers and the public.”

“It tells officers that they can shoot first and think later,” Justice Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote in dissent, “and it tells the public that palpably unreasonable conduct will go unpunished.”