Imagine there is a children’s birthday party in your backyard, and officers enter and shoot a child while trying to kill your dog. Imagine you’re in your bathing suit at a public pool, and, as you walk away from a police officer, he body slams you so hard it breaks your clavicle and renders you unconscious. Imagine you’re on your front porch, searching for a misplaced set of house keys, when several police officers suddenly attack and arrest you.
Imagine these police officers all get away with these horrific acts because of qualified immunity, which shields them from personal liability for their actions — even if those actions are unconstitutional. And then realize that you don’t have to imagine anything. All these incidents, and the lack of accountability that came along with them, actually unfolded in reality. And similar circumstances will continue to occur if the qualified immunity doctrine remains in place.
The myths that are used to justify qualified immunity are numerous and egregious. And the dangers of this doctrine are also abundantly clear. It’s critical to explore both in order to raise awareness about qualified immunity’s detrimental impacts, particularly on communities of color, and demonstrate why it is deeply hazardous to public safety and fundamentally unnecessary for law enforcement.
The Ku Klux Klan Act of 1871 — part of a series of Enforcement Acts established to protect Black people’s rights — allows people to sue government officials for civil rights violations. But the Supreme Court has determined that, even though this act’s provisions say nothing about officials being granted immunity, common law at the time the act was passed dictated that government officials did in fact have immunities that protected them from lawsuits. Qualified immunity is a judicial doctrine that has evolved from this reasoning. The doctrine protects government officials, including law enforcement and prison officials, from being sued unless they are found to have violated “clearly established law” — an unreasonable and deeply stringent standard that requires victims to point to a nearly identical case of unconstitutional conduct in their attempts to obtain justice.
While qualified immunity does not apply to criminal charges or prosecutions, it does impede one of the only ways civilians can hold government officials accountable: by suing them in civil court. Furthermore, it creates protections for government officials who have a long history of inflicting violence and abuse on Black and Brown communities. However, defenders of qualified immunity typically ignore this fact — and deploy a number of myths to defend a doctrine that is indefensible.
The playbook of myths perpetuated by qualified immunity’s defenders is rooted in fearmongering and a mistaken belief that state government officials somehow need more protections than they already have. And it is filled with the same tired arguments that have long been debunked.
It is increasingly common to hear the bankruptcy myth being touted as one of the foundational reasons justifying qualified immunity. But, it’s not actually true. Law enforcement officers are virtually always indemnified — a practice that shields officials from financial liability — regardless of qualified immunity, and rarely pay damages even when found guilty of unconstitutional conduct. Police officers do not pay for the lawyers defending them, either. The city an officer is affiliated with typically pays for police misconduct settlements, using taxpayer money.
This myth is rooted in pure fearmongering. The current legal reality and plain common sense convincingly debunk the notion that myriad frivolous cases will flood the courts the moment qualified immunity is limited or otherwise abolished. For one, various procedural safeguards exist that allow courts to toss frivolous lawsuits in early stages. These safeguards, coupled with the challenges and expenses that come with filing lawsuits — both generally and particularly against law enforcement — it’s incredibly unlikely that people will start filing frivolous lawsuits if qualified immunity is abolished. There is also no reason to believe that lawyers would accept frivolous cases, given the time and money that would be spent on a losing effort. And, of course, even if a frivolous lawsuit were filed, a case where officers did not violate anyone’s rights would fail in court with or without qualified immunity.
This is simply not true. For one, qualified immunity only protects government officials who break the law — something that should alarm everyone. Second, there’s also an often-repeated and inaccurate myth that officers need qualified immunity so they won’t have to pay out-of-pocket if they are sued for their conduct while on the job. However, indemnification means officers are already protected from paying anything regardless.
In fact, the idea that officials somehow need more protections ignores reality. Officials retain expansive protections and wide deference in the civil and criminal legal systems. For example, officers have been granted incredible latitude when they harm and harass people through pretextual stops or uses of force. And law enforcement officers are not only given unbelievable discretion — they also routinely face little accountability across our public safety system.
These examples only reflect a small part of the expansive protections afforded to government officials. There is no evidence that law enforcement officers need an additional layer of enablement in qualified immunity to do their jobs.
If officers aren’t breaking the law, there is no reason to expect that they will be penalized for their conduct. And, if they are breaking the law, they rightly should have something to worry about. Abolishing qualified immunity will help hold law enforcement accountable — at least in civil courts.
These myths are problematic precisely because they conjure an exaggerated alternate reality that is not based in fact and interprets any rollback of draconian police protections as an “attack.” And, even more concerningly, these myths ignore the very real dangers of qualified immunity. This doctrine harms actual people, erodes trust in police, and contributes to the view that law enforcement is mired in unaccountability, lawlessness, and violence.
The reality of qualified immunity is that there are clear dangers to keeping it in place.
Even if someone is the victim of police abuse, qualified immunity can dissuade them from filing lawsuits. Qualified immunity cases allow officers multiple opportunities to appeal before a case goes to trial, each of which can greatly delay a proceeding for up to a year or longer. This places a huge financial burden on victims seeking justice, and in turn may lead to officers escaping accountability simply because a victim cannot financially afford to go through the litigation process. The doctrine further dissuades victims because it makes it harder for them to find lawyers to take their cases, given the doctrine’s complexity and the ensuing financial burden.
Qualified immunity operates in a way divorced from actual reality. The Supreme Court has directed courts to evaluate qualified immunity cases through what it calls “clearly established law.” What this means is that, even if an officer violated a law, as long as there was no factually similar case in the past where an officer was found guilty, that officer will be protected by qualified immunity.
This creates an unreasonable burden of proof for victims of police misconduct. Courts no longer have to determine if a government official acted unconstitutionally when ruling on qualified immunity, but victims somehow still need to point to cases where an official acted unconstitutionally in order to overcome a qualified immunity defense.
Under the qualified immunity doctrine, whether an officer violates the law or how egregiously they violated the law does not matter. Qualified immunity protects officers either way, and, in turn, signals to officers that they can break the law without repercussion, absent the arbitrary standard of “clearly established law” being met.
Overall, qualified immunity is only defended by mere myths — not based in reality. And these myths do not account for the substantial dangers that the doctrine poses for accountability, the ways in which it undermines the rule of law, and the peril it poses to all Americans, particularly Black communities most at risk of facing police violence. Defending qualified immunity promotes lawlessness and violence and ultimately shields officers, and other government officials, who violate the law. If qualified immunity is not abolished, these officials will continue to be protected — and marginalized communities will continue to endure dire, long-lasting consequences as a result.
Throughout the United States, law enforcement officers have stolen money and valuables, shot children, attempted to harm family pets, killed vulnerable people, and, worst of all, they have gotten away with it — all because of qualified immunity.
For decades, qualified immunity has protected law enforcement officers and other government officials from being held accountable when they violate people’s constitutional rights. We’ve compiled answers to frequently asked questions about qualified immunity.
LDF’s Qualified Immunity Working Group advocates for the end of qualified immunity through litigation and public advocacy. The Group litigates civil rights cases in the federal courts of appeals and the United States Supreme Court to limit the doctrine’s reach.
Through litigation, research, and legislative and policy advocacy, LDF has been at the forefront of efforts to transform public safety across the country. LDF has compiled an index of the efforts by states and cities to address police accountability and transform public safety since 2020.
