Trial Magazine

After the tragic killings of Eric Garner, Michael Brown, Breonna Taylor, George Floyd, and countless other Black Americans by police, a long overdue spotlight has been cast on police misconduct and the endemic mistreatment of minority groups. Inextricably tied to this conversation is qualified immunity, a doctrine that shields government officials such as law enforcement officers from lawsuits, even when they have violated the constitutional or civil rights of those they are meant to protect. This judicially created doctrine leaves victims and their families with little or no recourse and provides no incentive or reason for officers to change or correct their bad conduct.

Despite recently gaining national attention after the murder of George Floyd, police misconduct and qualified immunity are not new to plaintiff attorneys, including the many AAJ members dedicated to holding those parties responsible for these injustices. For years, trial lawyers have worked to limit or overturn qualified immunity and to advocate for legislation to help victims of police brutality. Thanks to these efforts, federal legislation to address harmful policing has made enormous strides over the past year. While qualified immunity has yet to be meaningfully addressed, let alone overturned by the U.S. Supreme Court, some lower courts have become more vocal in their disapproval of the doctrine and how it is applied.

A Judicially Created Immunity Shield

Qualified immunity—an affirmative defense created by the Supreme Court in the 1960s and expanded in the landmark case Harlow v. Fitzgerald—has long been part of the legal lexicon. Under Harlow, the doctrine shields “government officials . . . 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.”

However, when victims of a law enforcement officer’s harmful conduct attempt to show that a right is “clearly established,” they often must point to factually identical case law in which a court has ruled that the exact same conduct is illegal or unconstitutional. If there is no such case, qualified immunity prevails. The result? No new case law is created, and official misconduct continues to be shielded by the qualified immunity defense, leaving even victims with proven constitutional violations, including shocking incidents of police misconduct, with no recourse for civil damages.

SCOTUS stays silent. Along with ideologically diverse groups, AAJ often signs on to amicus briefs in support of certiorari petitions asking the Supreme Court to overturn or scale back qualified immunity. Despite recently being presented with numerous petitions, the Court has largely refused to act.

Cert petitions have been denied in no fewer than six cases in the last two years, including Baxter v. Bracey, in which an officer unleashed a police dog that bit a man after he had already surrendered and was sitting on the ground with his hands in the air, and Corbitt v. Vickers, in which a deputy sheriff ordered six children at gunpoint to lie on the ground and then shot a 10-year-old child while attempting to shoot a pet dog. Although Justice Clarence Thomas dissented in Baxter, expressing continued “strong doubts about our §1983 qualified immunity doctrine,” victims of police misconduct are still effectively unable to get their day in court.

Reasons for hope? In 2020, the Supreme Court signaled a first step in the right direction with its decision in Taylor v. Riojas, a case involving a correctional officer’s mistreatment of an inmate. The Court reversed the Fifth Circuit’s grant of summary judgment based on qualified immunity, stating that under the “particularly egregious facts of this case, any reasonable officer should have realized that [the plaintiff’s] conditions of confinement offended the Constitution.”

In 2021, relying on Taylor, the Court again reversed the Fifth Circuit in McCoy v. Alamu, which granted qualified immunity to a correctional officer who pepper sprayed an inmate without any provocation. The Fifth Circuit found that although the officer violated the plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment, it was not clearly established that a violation had occurred.

That same Term, the Court issued an unsigned, per curiam opinion in Lombardo v. St. Louis, vacating the Eighth Circuit’s award of qualified immunity to police officers when a suspect stopped breathing and died after being put in a prone restraint by the officers for 15 minutes. The Court found that the lower court had “either failed to analyze [the] evidence or characterized it as insignificant” and remanded the case, instructing the lower court to “employ an inquiry that clearly attends to the facts and circumstances in answering those questions in the first instance.” It specifically declined to address whether the officers’ use of force was unconstitutional and whether the victim’s right to be free of such force was clearly established. Although the Court did not take on the merits, the case marks incremental progress.

But the Court still has not taken on the larger swath of cases impacted by qualified immunity, nor signaled that it is ready to overturn or limit the doctrine.

Inconsistency in the lower courts. While the Supreme Court’s decisions denying qualified immunity are few and far between, lower federal courts and state courts across the country have pushed back more strongly against qualified immunity.

For instance, the Eleventh Circuit denied qualified immunity to an Alabama police officer in Cantu v. City of Dothan, Ala., in which a man attempting to deliver a dog to an animal shelter got into an altercation with police for failing to show identification and was fatally shot while resisting arrest.

Then in Estate of Jones v. City of Martinsburg, W. Va., a Black man experiencing homelessness was killed by police after being stopped for walking in the street, allegedly in violation of a state law and local ordinance requiring the use of sidewalks. The Fourth Circuit denied qualified immunity, stating that: “Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This must stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept.”

Since George Floyd’s murder in May 2020, nearly 3,000 bills have been introduced in state legislatures to address police reform.

And last year, a federal district court in Mississippi reluctantly granted qualified immunity in Jamison v. McClendon, a case involving a Black man who was stopped by police for having a nice car and detained for two hours while his car was ripped apart despite the officer finding nothing illegal in the man’s vehicle. The court urged the Supreme Court to reconsider the doctrine that “operates like absolute immunity” for law enforcement.

Still, other courts are approaching these cases differently, resulting in inconsistent decisions across circuits. This year, for example, circuit courts in Frasier v. Evans and Peroza-Benitez v. Smith granted qualified immunity to police officers, finding it unclear that the officers’ outrageous behavior in each case violated a clearly established right. These decisions create more uncertainty for plaintiffs, who may pursue their cases not knowing how any given court will apply the doctrine, so plaintiff attorneys play a crucial role in helping them navigate this maze.

Government Accountability

Harmful and often racially motivated policing has led to tragedy for individuals, their families, their communities, and the country. To fight back, trial attorneys have brought civil cases against the cities that sanctioned these police tactics.

Nothing can repair the harm caused by a life lost, but civil verdicts and settlements provide some relief to families, spur cities and police departments to change their policing practices, and demonstrate that Black Lives Matter.

For example, the Floyd family’s civil suit resulted in a $27 million settlement with Minneapolis—the largest pretrial settlement in a police violence case in U.S. history and the largest settlement ever paid by the city. As part of the settlement, $500,000 was set aside to support businesses in the neighborhood where Floyd was killed. The city also adopted police reforms, including requiring that police keep body cameras rolling and prohibiting their review of footage before submitting a police report.

The lawsuit filed by Breonna Taylor’s family led to a $12 million civil settlement with Louisville, Ky., and meaningful police reforms, including updates to the search warrant process. And Ferguson, Mo., reached a settlement with Michael Brown’s family, and a U.S. Department of Justice investigation into the killing helped lead to major changes in the city’s policing practices, including reforms to address racial bias in its police department.

Legislative Responses

Every day, plaintiff attorneys fight as police misconduct and qualified immunity cases make their way through the courts. But they also spend time, along with AAJ, advocating and lobbying for federal and state legislation that would end qualified immunity and address systemic flaws in policing in this country.

George Floyd Justice in Policing Act (GFJPA). First introduced in 2020, the GFJPA calls for the end of qualified immunity for police officers. It would require all federal officers with the authority to conduct searches and make arrests to wear body cameras; establish a national police misconduct registry; ban choke- and carotid holds; and ban no-knock warrants in federal drug cases.

While this legislation is an important step toward correcting the injustices caused by unlawful policing, trial lawyers and AAJ continue to advocate for the strongest possible protections. Senate negotiators hit an impasse early this fall but hopefully will get back to negotiations for the sake of the families waiting for justice. Qualified immunity must be abolished completely, not just for certain categories of law enforcement, to ensure accountability and safety for citizens during encounters with the police.

State and local action. In the year after Breonna Taylor was killed by police in March 2020, nearly 50 no-knock warrant bans were proposed or enacted in cities and states nationwide. Since George Floyd’s murder in May 2020, nearly 3,000 bills have been introduced in state legislatures to address police reform. Nineteen states, including Minnesota, have put limits or bans on chokeholds—only two states (Illinois and Tennessee) had comparable bans in place before then.

At least 16 states and the District of Columbia have enacted legislation to limit the use of neck restraints. Other states have focused on issues such as limiting early morning no-knock warrant execution, banning chokeholds, increasing oversight and transparency, and adding other restrictions on use of force.

Colorado, Connecticut, Massachusetts, and New Mexico have taken noteworthy steps toward eliminating qualified immunity for violations of state civil rights laws and providing increased accountability for unlawful police actions by limiting officer immunity from civil suits due to misconduct. Colorado’s law is considered a model, offering a window into what a comprehensive approach to police reform looks like.

Beyond Qualified Immunity

Issues related to police misconduct continue to be litigated, even in cases not involving qualified immunity. In 2013, for example, the New York City Police Department’s “stop and frisk” policy based on race or national origin was found unconstitutional after plaintiffs brought a class action against the city.

In March 2021, the Supreme Court held in Torres v. Madrid that the application of physical force to a person’s body with intent to restrain is a seizure, even if that person does not submit and is not subdued. And in May 2021 in Caniglia v. Strom, the Court weighed in on the “community caretaking exception” to the Fourth Amendment’s warrant requirement, unanimously holding that it was improper for police officers to remove the plaintiff’s firearms from his home under this exception. The Court reaffirmed that law enforcement may not simply break into a home and that a warrant, voluntary consent, or exigent circumstance is required for police to enter.

The systems that have enabled law enforcement to injure civilians without consequence remain deep-rooted in our society. While criminal sentences for police officers who murder people and legislation to limit qualified immunity are steps in the right direction, more must be done to affect real social reform and obtain justice for those impacted by police misconduct. Trial lawyers are working tirelessly, in and out of the courtroom, to create meaningful, lasting change.