Over the past few years of racial and criminal justice protests, you may have heard something about “qualified immunity.” This concept isn’t a law; it’s a legal interpretation from the judicial system. Qualified immunity says that government workers doing their jobs can’t be held financially accountable, most of the time, when something goes wrong. The result is that when regular people try to sue cops who hurt them, those two words become a justification for their claims going unanswered. Kimberly Kindy, national investigative reporter at the Washington Post, thinks that the way people think about qualified immunity started to change when a few extreme cases attracted national attention, involving public officials stealing from and sexually assaulting people and getting qualified immunity. There’s even a case where one officer warned others that a mentally ill man shouldn’t be tased because he’d doused himself with gasoline. The cops fired their tasers anyway, the man died, and the officers were granted immunity. These cases led to more people learning about qualified immunity and speaking up about it, yet the idea has gone nowhere on a major legislative level. When Congress tried to pass the George Floyd Justice in Policing Act, talks broke down when politicians started talking about ending qualified immunity, and the bill was scuttled. On Thursday’s episode of What Next, I spoke with Kindy to find out why qualified immunity is hard to end—and what happens when a local government ends it anyway. Our conversation has been edited and condensed for clarity.
Mary Harris: When did you first hear the words qualified immunity?
Kimberly Kindy: I first heard about it way back during the Ferguson protests. But after the death of George Floyd, people were showing up at protests with signs that said “End qualified immunity.” I remember just shaking my head and thinking, “Wow, how did that go mainstream?” Five years ago, I could only have a conversation about it with, say, an academic.
Let’s talk about how this qualified immunity doctrine started in the first place. My understanding is this a constitutional protection, but it’s not in the Constitution. It was created by the Supreme Court. Can you explain how we started talking about police use of force and thinking about how we deal with it at the civil level?
So Congress, back in the 1800s, believed that citizens should be able to sue individual government workers who have violated somebody’s constitutional rights. And so in that time, they passed a law that was then informally called the Ku Klux Klan Act. The motivation for was that there were a number of government workers who were aiding and abetting the Ku Klux Klan and the terrorist acts the group was committing against Black people. Congress decided there should be some legal path for people to bring civil lawsuits against government workers who are violating people’s constitutional rights. That was on the books for a very long time. Then in the 1960s a suit was brought that stemmed from a Freedom Riders case. SCOTUS said that officers, in that case, deserved some type of immunity when they were acting and doing things in the course of their job. With subsequent court rulings, the Supreme Court has continued to strengthen it.
What’s interesting to me is how, from the very beginning, the idea of police accountability was deeply tied up with race.
Exactly. The history can be traced back to racist acts and racism. That’s why you can’t divorce that history: The courts stepped in and made it so that it’s really, really difficult to be able to do that very thing that Congress said should be a right of every citizen.
After qualified immunity was created by the Supreme Court, it started to be used as a defense in state courts too. The doctrine doesn’t mean police officers can’t be sued, just that they just have a decent legal defense once they get in front of a judge. There’s one more twist: In the 1980s, a Supreme Court ruling stated police should only be convicted if their behavior violates a clearly established precedent. So unless a similar case found that a certain behavior was wrong, it’s almost impossible to get a conviction. That creates a catch-22. No one is getting convicted because no one has been convicted before. And it’s led to some officers getting away with pretty egregious misconduct.
I think something people did not understand is that qualified immunity can be and is granted even when there’s been a constitutional violation. The courts can grant qualified immunity to an officer before it even takes up the issue of whether or not there was a constitutional violation. There’s a pretty high-profile case people often point to from Fresno, California. There were officers that were accused of stealing rare coins and cash from some business owners. The business owners sued, and the court said that even though what the cops were being accused of was clear misconduct and morally wrong, that still did not mean they didn’t have the right to qualified immunity.
For a long time, qualified immunity drew the attention of criminal justice reform advocates and pretty much no one else. But that changed after George Floyd was murdered by a police officer in 2020. For a moment, lawmakers around the country started taking a closer look at how they could limit the way this doctrine was used.
More than two dozen states introduced bills to either end or limit the use of qualified immunity in their state courts after Floyd was killed. It was a pretty significant number, but most of these bills were not successful. There were seven bills that ultimately passed. Two of them actually strengthened qualified immunity for officers in their states. But only one state out of all those, Colorado, actually passed a law that bans qualified immunity as a defense for individual officers. So you can sue individual officers, and they cannot claim that as a defense.
Four other states passed bills that tried to deal with the doctrine. In New Mexico, you can’t sue individual officers, but you can sue their employers. So there is a legal path for people to get financial restitution if an officer violates their constitutional rights—the county that employs that officer can’t declare qualified immunity as a defense, but you can’t go after the individual officers, like you can in Colorado. The other states that passed something on qualified immunity, they limited the use of it but did not straight-up ban it.
So how do they do that?
In some of these states, there’s language that says something like, if the officer did not intend to violate somebody’s constitutional rights, they still would be able to get qualified immunity.
That seems so squirrely, because who’s to know what someone intended?
Right. Legal scholars have told me that it’s going to be very difficult to make use of that law because the burden is then placed on the plaintiff to prove what was going on inside the mind of the officer at the time. And it’s pretty rare that an officer would blurt out, “I plan to violate your constitutional rights.”
Looking at what ended up coming out of Colorado’s session, there’s liability of just $25,000 for police officers who are successfully sued. I look at it and I wonder if that is a success. It’s a really small amount.
Well, it’s still a significant chunk of change for somebody in law enforcement, particularly in some of these smaller departments. They’re not making huge salaries. What this model would ultimately look like, if it prevailed in other states and if the officers were really held liable for the money damages, is that they would need to get insurance. If you’re an officer who violated someone’s constitutional rights, your insurance would go up, and so the idea is that eventually you would get priced out of your job. If you’re a rogue cop who keeps getting in trouble and your insurance rates keep going up, pretty soon you’re not going to be able to be an officer.
In the year since it was passed, Colorado’s ban on qualified immunity hasn’t had the earth-shaking impact that police claimed it might. Officers aren’t leaving the force in droves, recruitment numbers seem to be just fine, and there’s been no deluge of misconduct lawsuits. Even so, Colorado’s law hasn’t inspired much change in other states or on the federal level.
It has to be handled at the federal level. Unless the Supreme Court does something to change qualified immunity, or unless Congress does something to eradicate or limit it, people who decide to bring their cases to federal court are going to be facing the same obstacles as before. Just this week, the Supreme Court overturned two lower courts’ decisions and gave the officers involved qualified immunity. So it’s pretty clear that’s not going to be the path for change.