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Police Under Scrutiny October 9, 2020 – Volume 30, Issue 36Can law enforcement restore public trust?By Christina L. Lyons


Should Congress abolish qualified immunity for police officers?

ProJay R. Schweikert Policy Analyst, Cato Institute.Written for CQ Researcher,October 2020

The substance of constitutional rights ismeaningless if state actors can violate thoserights with impunity. Accountability musttherefore be a top priority for anyone interestedin criminal justice reform.

But accountability for public officials —especially members of law enforcement — hasbeen severely undermined by a judicialdoctrine called “qualified immunity,” whichshields state actors from liability for theirmisconduct, even when they break the law.

One of our primary federal civil rights statutes— generally called Section 1983 after its placein the U.S. Code — says that any state actorwho violates someone's constitutional rights“shall be liable” to the party injured. But underthe doctrine of qualified immunity, the SupremeCourt has held that such defendants cannot besued unless they violated “clearly establishedlaw.”

In practice, this is an incredibly demandingstandard, as it generally requires civil rightsplaintiffs to show not just a clear legal rule, butalso a prior case with functionally identicalfacts. In other words, it is entirely possible —and quite common — for courts to hold thatgovernment agents did violate someone'srights, but that the victim has no legal remedy,simply because that precise sort of misconducthad not occurred in past cases.

Qualified immunity thus routinely permitsegregious unconstitutional misconduct to gounaddressed. That obviously hurts the victimsof police misconduct, but it also hurts the lawenforcement community by depriving officersof the public trust and confidence that isnecessary to do their jobs safely andeffectively.

When the judiciary routinely permits policeofficers to get away with unconscionableconstitutional violations, members of the publiccan hardly be expected to have much trust orrespect for officers in their community. And thatdiminished trust and respect makes the job of

ConChris Balch Local Government Attorney, BalchLaw Group. Written for CQResearcher, October 2020

The Supreme Court created qualified immunityto do two things: to ensure that localgovernment officials and police officers knowthat what they are doing violates the law, and toprovide a defense that would not unnecessarilydetract from the important work that publicofficials do. The importance or frivolity of thesecond policy basis for qualified immunity canbe debated. The first reason should not besubject to debate under our Constitution.

It is a fundamental aspect of due process oflaw (the protection from any government takingone's property or liberty), enshrined in the FifthAmendment to the U.S. Constitution, thatpeople ought to know what they can andcannot do before they are held accountable fortheir actions. This is true everywhere in the law.The law does not lock people up if a statutewas unclear about what the bad conduct was,nor do we impose money damages onwrongdoers if their conduct was not proscribedby clear rules.

Qualified immunity established the requirementof fair notice in the common law of civil rightslitigation because it does not exist in thestatute's text. The statute merely provides thatindividuals can receive damages if their rightsare violated. What are those? Do they changeover time? They certainly have, because, forinstance, in the 1920s you could be arrestedand jailed for having protested World War I, butin the 2020s our republic has embraced theconcept of the marketplace of ideaschampioned by Justice Oliver Wendell Holmesin a 1919 dissent.

Where then are local officials, including police,to understand what they can do and cannotdo? Qualified immunity ensures that publicofficials understand that what they are doing inthe circumstances violates the law. Officialsthen have the opportunity to make a differentdecision, or if they proceed, the court can beconfident that the choice was intentional andliability appropriate. In the words of theSupreme Court, qualified immunity protects “all

ISSUE TRACKER for Related Reports

Law EnforcementOct. 09, 2020 Police Under ScrutinyApr. 21, 2017 High-Tech PolicingSep. 16, 2016 Jailing DebtorsJun. 07, 2016 Crime and Police

ConductDec. 12, 2014 Police TacticsApr. 06, 2012 Police MisconductOct. 14, 2011 Eyewitness

TestimonyMay 06, 2011 Business EthicsMar. 17, 2000 Policing the PoliceNov. 24, 1995 Police CorruptionSep. 06, 1991 Police BrutalityApr. 19, 1974 Police InnovationSep. 02, 1966 Police ReformsJan. 12, 1954 Federal Police

ActivityApr. 01, 1932 Proposed

Expansions ofFederal PoliceActivity


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policing far more difficult and dangerous, evenfor officers who strive to act in a lawful,professional manner.

For all the many complex problems thisdoctrine creates, the solution is quite simple —abolish qualified immunity. Congress couldeasily pass legislation clarifying that Section1983 means what it says — that when a stateactor violates someone's constitutional rights,they “shall be liable to the party injured.”

Ensuring real accountability is anindispensable component of meaningfulpolicing reform, and there is no greater barrierto police accountability than qualified immunity.The time has come for Congress to abolish thispernicious doctrine.

but the plainly incompetent or those whoknowingly violate the law.”

For Congress to repeal qualified immunitywould fundamentally alter the constitutionalnotice afforded to local officials. Those officialsought to be allowed and encouraged tounderstand, when they act, they could faceliability for that decision. If they do not knowwhat is allowed or disallowed, they cannotknow whether their choice will cost them.Qualified immunity, therefore, furthers theimportant due process rights of public officialsthat would be lost if it were eliminated byCongress.

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Document APA Citation Lyons, C. L. (2020, October 9). Police under scrutiny. CQ researcher, 30, 1-60.

Document ID: cqresrre2020100906 Document URL:

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