Originating from a 1982 U.S. Supreme Court opinion regarding the termination of government employees in retaliation for speaking out about the Nixon Administration, the doctrine of qualified immunity has been the law of the land for more than 40 years now. Highly publicized recent cases involving alleged police brutality across the country, such as the incidents involving George Floyd, Breonna Taylor and Tyre Nichols, have recently called the public’s attention – and criticism – to the doctrine. In fact, a recent Mississippi federal court has stated that the doctrine “has no basis in law” and concluded that it is an “extra-constitutional affront to other cherished values of our democracy” and further stated: “A cynic might say that with qualified immunity, government agents are at liberty to violate your constitutional rights as long as they do so in a novel way.”
A cynic indeed. Law enforcement officers are often faced with sudden, tense and swiftly evolving situations on the side of the road, in tight quarters, and in crowds and groups of people, and quick decisions must be made. The courts, when reviewing civil actions alleging violations of a person’s rights due to an officer’s conduct, will often state that this conduct cannot always be viewed in the comfort of one’s armchair after the fact, not being faced with the actual dangerous situations that arise.
Qualified immunity is intended to be an absolute immunity from suit, not simply a defense to a claim. It is, however, “qualified.” Under this doctrine, government officials, such as law enforcement officers, performing discretionary functions (such as effectuating an arrest) generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. What is a “clearly established” right? For purposes of making this determination, a court will look to see if the conduct alleged to be a violation of someone’s rights is such that is sufficiently clear that every reasonable officer would have understood that what he or she was doing violates another’s rights. This is done by looking at existing precedent to see if the same or very similar conduct has been found to be unconstitutional so as to put the officer “on notice” that they can or cannot engage in certain conduct. In recent years, the U.S. Supreme Court, in the case of City of Tahlequah v. Bond, made it clear that general aversions or similar comparisons of conduct is not enough, it must be nearly identical. It is this requirement that draws the criticism from the “cynic” that the conduct can be immune if it is “novel.”
As recently as last year, Oklahoma Senator Julie Daniels filed a proposed bill in the Oklahoma State Senate that would have created a process to sue state and local government agencies that employ officials accused of taking actions that violate constitutional rights without the possibility of a qualified immunity defense. Similar legislation has been passed in Colorado, New Mexico and California. This bill has not been enacted, but clearly shows a growing effort to eliminate the protections of qualified immunity. For the time being, however, despite the frustration arising from high-profile incidents, qualified immunity remains in place.
