Qualified Immunity is Already Dead

Qualified Immunity is Already Dead

by Jeff Harrison

Qualified Immunity is effectively dead because judges have zero upside to grant it now.  With the public and media attention placed on Qualified Immunity since 2020, every time a judge grants or denies Qualified Immunity it’s a huge national story.  I know what you’re thinking….”Judges don’t care about the media or public opinion.  They only care about justice.”  We all wish that to be true but they are still humans. 

How Does Qualified Immunity Work?

Qualified Immunity does NOT mean Police Immunity.  Police Officers are NOT immune from being sued by anyone.  The confusion comes from the word “Qualified” in Qualified Immunity.  You do NOT “Qualify” because you are a law enforcement officer.  The word “Qualified” means an officer's actions must “Qualify” for “Immunity” by a judge.  If a judge feels an officer’s actions “Qualify” for “Immunity” then the officer will not go to trial.  However, if the judge thinks the officer doesn’t “Qualify” for “Immunity” then they will go to trial.  Police Officers must perform at the high standards set in the Constitution.  There is NO shield or protection from the Constitution for any government official.  Officers are denied Qualified Immunity all the time.  

Politicians Don’t Control Qualified Immunity

The politicians Pro Qualified Immunity have zero power in the actual practice of Qualified Immunity.  Politicians will grandstand for the law enforcement industry and talk big about how they will make sure Qualified Immunity never goes away but it’s all a distraction.  Lawmakers can eliminate Qualified Immunity and that is happening in many states and cities.  However, politicians have ZERO power over the implementation of it because that falls onto the judiciary branch of government.  Politicians don’t control Qualified Immunity at all.

What Would You Do?      

Put yourself in the shoes of a judge that is making the decision to grant or deny Qualified Immunity to a law enforcement officer.    

Before 2020, a judge would grant Qualified Immunity and nobody even cared.  The media would not waste any ink on that and the public didn’t even know what Qualified Immunity was at all.  Therefore, a judge would be more willing to grant it because their decision was not on the front page of the New York Times.  

After 2020, the majority of the public has heard of Qualified Immunity, many advocacy groups have started with the sole purpose to eliminate Qualified Immunity. Colorado, Connecticut, New Mexico, and New York City have all eliminated Qualified Immunity. The U.S. Congress has been debating it for two years. Currently Illinois, Vermont and Rhode Island have Bills in legislation to eliminate Qualified Immunity. Charles Koch organization Stand Together is paying USA Today to run stories to eliminate Qualified Immunity every week for the next two years and the media loves to write stories about Qualified Immunity now.  Saying Qualified Immunity is a hot topic is an understatement.  

Now imagine being a judge and you have a law enforcement officer asking for Qualified Immunity.  Do you grant it and suffer the backlash from everyone?  Or do you deny it and let the matter go to court?  I’m willing to bet most judges simply deny the officer Qualified Immunity because all that happens is it goes to trial.  Denying Qualified Immunity is not saying the law enforcement officer is guilty.  All it is doing is allowing the American citizen that feels their Constitutional Rights were violated have their day in court.  The law enforcement officer and the American citizen are given equal opportunity to plead their case in a court of law and have a jury decide.  The judge that denied Qualified Immunity has zero downside because all they are doing is letting the judicial system work the way it was designed to work.  

What would you do?  Would you put your professional reputation on the line or let the judicial system do its job?  Be Honest. 

Judges Are Denying Qualified Immunity

Judges are denying Qualified Immunity all over the country now.  It makes sense because judges denying Qualified Immunity has zero downside.  This doesn’t mean all requests for Qualified Immunity are denied but it has been happening more since 2020.  There are even police officers that were granted Qualified Immunity and then another judge or panel of judges will strip that officer of Qualified Immunity.  This just happened in Dallas, Texas.  Below are links to articles of law enforcement officers denied Qualified Immunity that went to trial.  If you don’t believe this, do your own Google search.   

• Federal judge denies immunity to Aurora officers in shooting death lawsuit

• Qualified Immunity Denied to Nebraska Investigative Team Which Manufactured False Evidence to Secure Murder Conviction of Innocent Party

• COURT REJECTS QUALIFIED IMMUNITY FOR OFFICERS WHO SHOT WAYNE JONES 22 TIMES

• Court Denies Qualified Immunity To Cops Who Beat An Innocent Man To Death

• Police Officers Denied Qualified Immunity In Police Brutality Civil Rights Case

• Qualified Immunity Denied Based on Dispute About Material Facts

• Sixth Circuit Denies Qualified Immunity for Officers in No-Knock Home Entry Case

• Deputy sheriff loses qualified immunity protection from false arrest lawsuit

• Dallas officers don’t have qualified immunity in Tony Timpa case

• Police do not have an automatic right to qualified immunity, court rules

• Qualified Immunity Denied To Officer Who Tased Man In The Genitals

• Qualified Immunity Defense Rejected in Case Involving Police Shooting

• Officer Denied Immunity Over Truck Driver's Detention

• 4 Officers Denied Immunity Over 2017 Fatal Arrest Attempt

• Judge denies qualified immunity for Sheriff, deputy in 2017 shooting

• Appeals court denies immunity to Des Moines officers who handcuffed, searched inside Black man's pants

• Supreme Court Denies Prison Officers Qualified Immunity

• FIFTH CIRCUIT DENIES IMMUNITY FOR OFFICER IN ARREST OF MAN TAKING PHOTOGRAPHS ON TRANSIT PROPERTY

• Tenth Circuit Affirms Denial of Qualified and Sovereign Immunity Defenses

• Jury Will Hear First Amendment Rights Case after Eleventh Circuit Denial of Qualified Immunity

I think you get the point.

Conclusion

Qualified Immunity is effectively dead.  It may not be 100% dead but it is bleeding out on the ground.  We can all agree that Qualified Immunity is much weaker today than it was before 2020.  I already know what you’re thinking….”Ok, Qualified Immunity is weaker but it’s never going away because the U.S. Congress tried to eliminate it and that failed.”  It is true that in 2021 the U.S. Congress presented a Bill to eliminate Qualified Immunity and nothing happened.  However, the U.S. Congress or your State can keep Qualified Immunity forever but that has zero effect on judges granting Qualified Immunity.  When any human has a decision with a 100% downside, they almost always avoid that.  Especially if the opposite decision has 0% downside.  Remember that a judge denying Qualified Immunity is not saying the police officer is guilty.  All they are doing is allowing the matter to go to trial.  Do you really think judges want to prevent American citizens from having their day in court?  Qualified Immunity is dead.                   

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