Abolishing Qualified Immunity Is Unlikely to Alter Police Behavior

Daniel Epps, associate professor of law

 

The national movement galvanized by the killing of George Floyd has created the possibility of transformational change to policing. One reform that has generated broad discussion is eliminating “qualified immunity,” the court-created doctrine that makes it difficult for people whose civil rights are violated by police officers to obtain money damages in lawsuits. There are good arguments for getting rid of this immunity, or at least seriously restricting it. But abolishing it is unlikely to change police behavior all that much.

Qualified immunity shields government officials from personal liability in federal lawsuits unless they violate “clearly established” federal law. That means that even if a police officer violates someone’s constitutional rights, the victim can’t obtain damages from the officer unless he or she can show that the officer violated a right explicitly recognized by a prior court ruling.

In theory, this requirement protects government defendants from unexpected liability when law changes. In practice, courts apply the doctrine aggressively to shield officers from lawsuits unless plaintiffs can point to other cases declaring essentially identical conduct unconstitutional — a difficult hurdle, even when police conduct appears clearly wrong.

Read the full piece in The New York Times.

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