Among the many issues at the center of debates over police-involved killings, particularly killings of people of color, few are as impactful as qualified immunity. According to Google Trends, which measures search history of keywords and topics, queries about qualified immunity spiked dramatically in May 2020 in response to the murder of George Floyd.
But for as often as qualified immunity is pulled into wider debates, the concept itself is idiosyncratic and opaque, perhaps even among legal professionals. It is not a law but a precedent, not an act of government but a judicially created doctrine.
King County Superior Court Judge David Whedbee is one of the organizers behind a planned full-day event aimed at examining qualified immunity. On May 7, Whedbee and Washington Supreme Court Justice Mary I. Yu will cohost “Qualified Immunity 360,” sponsored by the Washington State Minority and Justice Commission and featuring panelist presentations and discussion “to educate practitioners, judges, law students, and the public on the mechanics, history, and public policy behind the doctrine.”
Ahead of that event, NWSidebar spoke to Whedbee about the doctrine of qualified immunity, its history, and its impact.
NWSidebar: What can the origins and history of qualified immunity inform about its role in the law today?
David Whedbey: The Civil Rights Act of 1871 (also known as the Klu Klux Klan Act, or now as 42 U.S.C. § 1983) was the post-Civil War federal law aimed in part at stopping racially motivated extralegal killing of African Americans by state actors in the South. The statutory accountability was designed to be robust; yet, like many legal protections from the Reconstruction Era, the Act of 1871 was not enforced during the Jim Crow era, for a variety of reasons.
In 1961, the U.S. Supreme Court recognized for the first time in Monroe v. Pape that an officer could be individually liable under § 1983 for money damages for constitutional violations (such as excessive use of force or wrongful detention). As the struggle for civil rights and related social unrest intensified during the 1960s, the Court in Pierson v. Ray in 1967 then limited an officer’s exposure to individual liability through a “qualified immunity” at common law, although the Act of 1871 did not mention the defense. An interesting historical question is whether the Warren Court was limiting the ability of people to vindicate their civil rights by suing the police, just as the Court’s “criminal procedure revolution” had reached its apex. As one examines the development of the qualified immunity doctrine through the Burger and Rehnquist Courts and beyond, the effect clearly was to afford officers greater and greater protection from civil liability.
Just recently, after decades of officer acquittals, the verdict of Officer Derek Chauvin for the killing of George Floyd demonstrated that a police officer could be convicted of murder, as one form of public accountability. But before that, civil rights actions under § 1983 were the main means of legal accountability. Qualified immunity arguably frustrates that mechanism because it stands for the principle that police (and other state actors) should be treated more leniently. In light of the initial impetus for § 1983 and the ongoing fact that a disproportionate number of Black and brown people are killed by police, it begs the question whether and to what extent Congress should debate the competing policy concerns around qualified immunity rather than defaulting to a judicially created doctrine. (The May 7 “Qualified Immunity 360” will feature various perspectives on that question. )
NWS: What are some common misconceptions about qualified immunity?
Whedbee: In press discussions, qualified immunity can be presented as necessary for protecting state actors from frivolous lawsuits. This is not true because there are other procedures, for instance through Rule 12(b)(6) or summary judgment motions, that can screen out unfounded lawsuits. Conversely, activists in favor of greater police accountability may mistake “qualified” immunity for absolute immunity. These overwrought views distort the debate about how constitutional claims do (and should) get to a jury. At bottom, qualified immunity adds an extra layer of judge-made protection, unpredictable in application, that bars claims that may be otherwise meritorious and get to the jury. In contrast to ordinary tort litigation between private actors, there is a likelihood in § 1983 litigation that with qualified immunity judges rather than juries will decide a greater number of cases involving constitutional questions of officer accountability.
NWS: What are some of the more compelling or relevant constitutional questions yet to be answered about qualified immunity?
Whedbee: Qualified immunity was judicially created and maintained for over 50 years without legislative input. Although originally based in the common law, the U.S. Supreme Court departed from that premise in Pierson and in later precedent has expressly adopted a policy of protecting officers from the burdens of litigation as the underlying basis for qualified immunity. One question is, what is the fundamental legal authority for the immunity if Congress has not enacted it? Another conundrum is the fact that officers are shielded from liability when they are alleged to have violated the Constitution in ways that are not “clearly established.” Because courts at least in some cases will not reach a constitutional violation in novel factual situations (because, say, it involves new technology), qualified immunity can frustrate the development of constitutional law.
NWS: Given that qualified immunity is a federal issue, what role, if any, do non-federal judges, lawyers, and legal professionals have to play in examining this concept and addressing public concerns about it?
Whedbee: Qualified immunity is a topic that can teach us all about the role courts play in deciding questions of individual constitutional rights and the scope of governmental accountability. It is important for courts generally to be more transparent about this dynamic in the current social moment where people are (and have long been) voicing the need for accountability in the wake of the deaths of George Floyd and many others. The educational premise of the May 7 “Qualified Immunity 360” presentation is to open up the doctrine from various perspectives, to better understand its origins and underpinnings. In so doing we increase transparency and ideally stir public debate about a judge-made doctrine.