Compromise on immunity: Why the law should not protect police who use excessive force

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Graphic video from Kenosha, Wisconsin, has reignited debate on why the law makes it so hard for Jacob Blake to sue police for shooting him seven times in the back.

Removing the main legal barrier — the qualified immunity defense — has become the bellwether reform for activists and Democratic lawmakers. It was the clearest policy demand at last month’s March on Washington.

It also marks a Maginot line for Republicans, with South Carolina Sen. Tim Scott calling the end of qualified immunity a “poison pill,” that is, a suggestion so toxic for his political kin that it would kill off the possibility of building consensus around other police reform proposals.

Compromise is not the mood of America today, but it is needed here. This once obscure, now contentious doctrine, which all but precludes private lawsuits against police officers, does not have to be scrapped completely to satisfy its critics.

Instead, Congress (or state legislatures) should withdraw qualified immunity for excessive force claims but otherwise keep it intact. Excessive force, after all, is where the immunity defense inspires the most grief and makes the least sense.

Qualified immunity, a rule many conservatives steadfastly support, was invented by judges. It is not in the Constitution; it’s not rooted in colonial history or legal tradition; no legislature has ever ratified it.

The doctrine was first hatched by the Supreme Court in 1967. Since then, it has become an increasingly vexing obstacle for anyone suing a public official.

By the 1980s, a lawsuit could move forward only if the defendant violated “clearly established” law, the latest in a series of tripwires that extinguished most cases. From inoculating schoolteachers from lawsuits by their students to gutting cases by patients against hospital administrators, the doctrine’s steady creep gobbled up more and more cases, but reached excessive force claims only in the mid-2000s.

That means reversing this last expansion does not void the doctrine — it merely resets the law to where it was before courts began to approve its application in police brutality cases.

The logic for immunity also collapses in the excessive force context. Qualified immunity was meant for situations where legal rules are unsettled or evolving, where a public official might be forgiven for not knowing the precise state of the law.

For example, Fourth Amendment rules can be tricky. Should police get a warrant to electronically track a car on public streets? Is the smell of marijuana enough to conduct a search in middle-ground states that have decriminalized marijuana possession but where selling weed is still illegal? These are byzantine questions debated by law professors, whose answers shift from one court opinion to the next.

Excessive force rules are clear

The law of excessive force, by contrast, is not confusing or complex. Whether force is justified certainly depends on the circumstances of the situation, but that’s true for lots of discretionary judgments. Doctors are not shielded from liability just because they need to make hard decisions in emergency conditions.

The point is, the law on the use of force is not erratic or hard to comprehend and, consequently, allegations of police brutality are the last place where qualified immunity should be available. We do not yet know, for instance, what defense the Minneapolis officers in the killing of George Floyd will mount, but assuredly it will not be that the law was unclear.

Admittedly, part of the rationale for immunity is that public officials should not hesitate, because they fear being sued, to act in the public’s interest. But don’t we want officers to err on the side of avoiding force when there are alternatives? Don’t we want them to resort to force, deadly or otherwise, not as a reflex triggered by muscle memory but as a trained choice on the use-of-force spectrum?

Law enforcement is under the microscope today. Recruitment of diverse officers and retention of seasoned detectives is harder than ever. In times like these, it is fair to ask, do we want to subject police to lawsuits and personal liability? This question implies, however, that we must cloak officers with the conceit that they operate with impunity to forge an effective police force.

Immunity is symbol of racism

This is exactly backward. Officers should know that they will be far better trained for tough situations, that they will have to make hard choices, and that we respect them enough to expect them to get it right. Cities should indemnify them, so damages do not come out of an officer’s pocket — but the truth should come out in court.

Qualified immunity in excessive force cases has come to symbolize structural racism and the ways in which the law shields corrupt police from scrutiny.

Reform does not require us to discard the whole book on qualified immunity. But the chapter that says to Black and brown victims of brutality that the law provides no remedy when police break bones or break the law is a chapter that should never have been written in the first place.

Thiru Vignarajah was deputy attorney general of Maryland and previously served as a law clerk to Justice Stephen Breyer on the U.S. Supreme Court.