Comparative Immunity: Criminal Justice System Civil Liability Protections and Qualified Immunity Controversy

I.               Introduction and Overview

Since the summer of 2020, many calls for criminal justice reform have centered on qualified immunity.[i]  The concept immunizes certain government actors from personal civil liability where “their conduct does not violate clearly established … rights...”[ii]  In the context of calls for reform, these actors are usually police officers, although most government officials can invoke qualified immunity.[iii]

The criticisms of qualified immunity are many.[iv]  However, during a journey through the criminal justice system, defendants will encounter judges and prosecutors with absolute immunity from civil liability.  Similar policy rationales underlie both absolute and qualified immunity.[v]  One common thread is that police officers, prosecutors, and judges often face difficult or unpopular decisions best resolved where fear of personal liability is a nonfactor.[vi]  Qualified immunity also has its virtues – some of which can be difficult to quantify.[vii]  This post will explore civil liability for criminal justice actors and compare qualified immunity to that afforded to other actors. 

II.             Personal Civil Liability for Criminal Justice Actors

42 U.S.C §1983 creates a cause of action against any individual who, acting under color of law, deprives one of “rights, privileges, or immunities” guaranteed under the Constitution or federal law.[viii]  This Reconstruction era law was aimed at curtailing unruly states engaged in racial discrimination.[ix]  The law functions in part as a workaround for sovereign immunity that can limit plaintiffs aggrieved by a state to injunctive relief.[x]  To that end, § 1983 allows a plaintiff to hold an individual actor,[xi] rather than the state, civilly liable for violation of the requisite rights.[xii] 

Consider a basic scenario in which a plaintiff alleges that a state trooper used excessive force in affecting her arrest.[xiii]  Where the 11th Amendment might otherwise bar a suit against the state,[xiv] § 1983 allows the plaintiff to sue the trooper individually to recover damages for the alleged wrongdoing.  Such a scenario is one where the trooper can claim qualified immunity.[xv]  Qualified immunity insulates a defendant where their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[xvi]  Implicit in this standard are two prongs.[xvii]  First, whether a right has been violated and, second, whether that right was clearly established.[xviii] 

Uncertain is a generous description of interpretations of this test over the years.[xix]  For instance, the Supreme Court’s stance on whether both questions must be answered and in what order has wavered.[xx]  The current state of the law is that no particular sequence is required and that both questions need not be answered because a “no” to either entitles defendants to qualified immunity.[xxi]  As critics illustrate, bypassing the question of whether a Constitutional violation occurred and instead disposing of cases by finding a lack of clearly established law prevents the very formation of such law to apply to future cases.[xxii]  Adding to the ambiguity, different federal circuit courts apply different standards in determining what law is “clearly established.”[xxiii]  In some circuits, persuasive authority is sufficient.[xxiv]  In others, it is not.[xxv]  Even the Supreme Court remains unsure what “precedents – other than [its] own—qualify as controlling authority for purposes of qualified immunity.”[xxvi]  The final layer of uncertainty is that the Supreme Court has directed lower courts to make decisions about clearly established law with specificity.[xxvii]  Put another way, scenarios with slight factual distinctions, even those with the same general contours, may not create clearly established law.  This stops short of requiring identical facts, but has, for instance, drawn a distinction between a police sniper shooting a suspect involved in a standoff and police shooting a person armed with a knife at much closer range.[xxviii] 

§ 1983 liability for judges and prosecutors is significantly simpler because SCOTUS jurisprudence clearly establishes their absolute civil immunity.[xxix]  The Court goes so far as to acknowledge that prosecutorial immunity extends to “malicious or dishonest action.”[xxx]  Similarly, judicial immunity applies in cases of error and malice, ceasing only where the judge clearly lacks all jurisdiction.[xxxi]  Accordingly, a plaintiff with conclusive evidence of willful, malicious violation of § 1983 could not pursue civil damages against involved judges or prosecutors. 

III.           Foundations of Immunity

At the core of the Supreme Court’s qualified immunity jurisprudence is efficient government operation.[xxxii]  The sort of discovery necessary to ferret out an actor’s subjective motivations, the Court has reasoned, is expansive to an extent that it would impair routine government operations.[xxxiii]  The Court has further explained that the public interest is better served where officials can act without fear of the consequences of civil liability.[xxxiv]  Notably, the Court derived this reasoning from similar common law principles that provide absolute immunity to judges.[xxxv]  The Court has supported these rationales by pointing to reduced litigation drains on public coffers and a desire to not discourage competent individuals from pursuing public service for fear of personal liability.[xxxvi] 

The Court has used even stronger rhetoric in describing judicial immunity. According to the justices, imposing the specter of liability on judges would undermine their independence and render the justice system not “respectable or useful.”[xxxvii]  Judicial immunity, the Court holds, is “a general principle of the highest importance to the proper administration of justice.”[xxxviii]  The Court has treated this principle as manifest, finding that it is present “in all countries where there is any well-ordered system of jurisprudence…and has never been denied, that we are aware of, in the courts of this country.”[xxxix]  The only dent in this armor exists where a judge acts completely without jurisdiction.[xl]  Even so, the Court notes that jurisdiction is construed broadly where a judge’s immunity is in question.[xli] 

Similarly, prosecutorial immunity flows from concern that aggrieved defendants would turn to civil litigation as a means of retribution.[xlii]  Prosecutors’ duties to the public are also an important factor.[xliii]  Specifically highlighted is the need to discharge these duties impartially and without fear of personal liability.[xliv]  The Court further explains that prosecutors must sometimes act with such swiftness that they are poor candidates for qualified immunity.[xlv]  Explicit in the discussion and analysis of absolute immunity is a deprivation of “civil redress” for the “genuinely wronged.”[xlvi]  Where this is the case, the Court suggests that criminal law and professional organizations can provide effective restraints.[xlvii] 

IV.          Qualified Immunity at Work

Qualified immunity, while the least protective doctrine explored here, has captured the public’s attention.[xlviii]  There are well-reasoned, well-intentioned criticisms of qualified immunity.[xlix]  Decisions granting immunity for bad faith acts are difficult to reconcile with the notion of justice.  In one frequently cited example, qualified immunity shielded police officers alleged to have stolen $200,000.[l] Nevertheless, the doctrine lives on in Supreme Court jurisprudence.[li] 

Let us consider a less galling application.  A twelve-year old girl, in tears, calls 911 from a bedroom where she is hiding with her mother and sister.[lii]  They are hiding from the mother’s boyfriend who they fear is going to hurt them with a chainsaw.[liii]  Police officers order the man from the home when the 911 dispatcher hears sawing.[liv]  Without the chainsaw, the man emerges and complies until he stops about ten feet from officers.[lv]  Seeing a knife in his pocket, the officers order him to raise his hands.[lvi]  He instead lowers them and officers use a beanbag shotgun.[lvii]  The less-than-lethal blasts knock the man to the ground.[lviii]  While affecting the man’s arrest, an officer kneels on his back for no more than eight seconds.[lix]  The man initiates a § 1983 suit against the officer who kneeled on him.[lx]  The Ninth Circuit then finds this eight-second interaction to be excessive force based on “clearly established” law found in their precedent.[lxi]  However, the Supreme Court overturns in reliance on qualified immunity, finding that the law was not clearly established.[lxii]

Such a case illustrates one utility of qualified immunity.  In a sterile environment with sufficient time, any competent attorney might find a narrow violation of intra-circuit case law in an otherwise bland interaction.  One can imagine that such a process might unfold differently if we imported the officer’s exigencies into the researcher’s environment.  First responders seemingly have the most volatile and exigent role[lxiii] in the criminal justice ecosystem.[lxiv]  These gritty and emergent settings sometimes provide seconds or factions thereof to make exceptionally consequential choices. It follows logically that this role is likely to be the most prone to mistakes and therefore most in need of immunization from such errors.[lxv]  Yet, prosecutors and judges are entitled to absolute civil immunity for their acts while courts provide officers the comparatively weaker qualified immunity.[lxvi]  This paradox could explain the wide latitude afforded to officers under qualified immunity.

The immunizing effects of qualified immunity are arguably overstated.  One judge has referred to the doctrine as “unqualified impunity.”[lxvii]  Yet, as the Court noted with prosecutorial immunity,[lxviii] criminal law and professional organizations have a role to play.  Police officers who commit crimes can be tried and convicted.  Further, in 2021, 111 police misconduct and decertification bills are pending in 38 states.[lxix]  This ostensibly reflects a majority view that officers who commit severe and/or repeated misconduct should cease being officers.  Alternatively, personal liability may not comprise an appropriate mechanism for holding officers accountable.  The very concept of public service means officers are not generally acting in their self-interest.  When an officer responds to a perilous call for service, he or she is absorbing significant risk for the community.  Officers do not have the luxury of declining to respond to such situations when they have calculated the risk, legal or otherwise, to be excessive.[lxx]  Moreover, a judgment flowing from a use of force incident could imperil the entirety of the officer’s financial assets,[lxxi] rendering his or her spouse and children collateral damage in the process, and still not rectify a plaintiff’s damages.

V.            Conclusion

Mistakes, malice, and misfeasance will persist for so long as humans serve as the cogs in human systems.  As the focus on qualified immunity and potential reform continues, we are likely to see failings of the doctrine while common-sense applications fly under the radar.  Our system of law has consistently preferred to avoid punishing faithful public servants who honestly error.  The necessary downside is the occasional bad actor who escapes consequence.  As the law prefers a guilty man to go free than to punish an innocent one, it prefers not to harangue honest public servants knowing well that the occasional bad actor might escape liability.  Judge Learned Hand’s words on immunity provide some closing perspective:

"As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."[lxxii]

[i] See, e.g. Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests, N.Y. Times, (June 23, 2020), https://www.nytimes.com/2020/06/23/us/politics/qualified-immunity.html.

[ii] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[iii] Id. at 807.

[iv] See, e.g. Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017) (identifying several, namely that it is too powerful a shield and might not serve some intended policy goals).  See also William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45 (2018) (questioning its legality).   

[v] Harlow, 457 U.S. at 818; Imbler v. Pachtman, 424 U.S. 409 (1976); Stump v Sparkman, 435 U.S. 349 (1978).

[vi] Harlow, 457 U.S. at 818; Imbler, 424 U.S. at 409; Stump, 435 U.S. at 349.

[vii] See Aaron L. Nielson & Christopher J. Walker, Qualified Immunity and Federalism, 109 Geo. L.J. 229 (2020).  (These include advancing the principles of federalism and certain reliance interests.  For instance, critics of qualified immunity sometimes argue that employers almost always indemnify police officers.  Qualified immunity might be the force that enables this.)

[viii] 42 U.S.C. § 1983

[ix] See, e.g., Tayler Bingham, Note, Giving Qualified Immunity Teeth: A Congressional Approach to Fixing Qualified Immunity, 21 Nev. L.J. 835, 840-841 (2021). 

[x] See Ex parte Young, 209 U.S. 123 (1908).  See also Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989).

[xi] A definition since expanded to include local governments. See Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).

[xii] 42 U.S.C. § 1983

[xiii] Almon v. Kilgore, No. 3:19-cv-0004-GFVT, 2019 U.S. Dist. LEXIS 41272 (E.D. Ky. 2019).

[xiv] Will, 491 U.S. at 58.

[xv] Almon, 2019 U.S. Dist. LEXIS 41272.

[xvi] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[xvii] Saucier v. Katz, 533 U.S. 194, 201 (2001).

[xviii] Id.; Karen M. Blum, The Qualified Immunity Defense: What's "Clearly Established" and What's Not, 24 Touro L. Rev. 501, 528 (2008). 

[xix] Bingham, supra note iv at 883.

[xx] Saucier, 533 U.S. 194; Pearson v. Callahan, 555 U.S. 223 (2009).

[xxi] Pearson, 555 U.S. at 223. 

[xxii] Bingham, supra note iv at 835.

[xxiii] Id.at 860-863.

[xxiv] Id. at 861.

[xxv] Id. at 861.

[xxvi] District of Columbia v. Wesby, 138 S. Ct. 577, 594 (2018).

[xxvii] Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).

[xxviii] Id. at 1154.

[xxix] Imbler v. Pachtman, 424 U.S. 409 (1976); Stump v. Sparkman, 435 U.S. 349 (1978).  But note that these officials can still be sued for their administrative decisions.  Hiring and firing decisions are a frequently cited example.

[xxx] Imbler, 424 U.S. at 427.

[xxxi] Stump, 435 U.S. at 370.

[xxxii] Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982).

[xxxiii] Id.

[xxxiv] Id. at 819 (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)).

[xxxv] Pierson v. Ray, 386 U.S. 547, 555 (1967).

[xxxvi] Harlow, 457 U.S. at 816.

[xxxvii] Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871).

[xxxviii] Stump v Starkman, 435 U.S. 349, 355 (1978) (citing Bradley v. Fisher, 457 U.S. 335, 355 (1871)).

[xxxix] Bradley, 80 U.S. (13 Wall.) at 347.

[xl] Stump, 435 U.S. at 356.

[xli] Id.

[xlii] Imbler v. Pachtman, 424 U.S. 409, 423 (1976).

[xliii] Id. at 423.

[xliv] Id. at 423, 424.

[xlv] Id. at 425.

[xlvi] Id. at 427.

[xlvii] Id. at 428-29. 

[xlviii] Bingham, supra note iv, at 836. 

[xlix] In addition to previously referenced works, see, e.g., Zadeh v. Robinson, 902 F.3d 483 (5th Cir. 2018) (Willett, J., concurring).

[l] Jessop v. City of Fresno, 918 F.3d 1031 (9th Cir. 2019), cert. denied, 141 S. Ct. 198 (U.S. Aug. 3, 2020)(No. 19-1021).

[li] See, e.g.: Rivas-Villegas v. Cortesluna, 142 S.Ct. 4, 6 (2021).

[lii] Rivas-Villegas, 142 S.Ct. at 6.

[liii] Id.

[liv] Id.

[lv] Id.

[lvi] Id. at 6-7.

[lvii] Id. at 7.

[lviii] Rivas-Villegas v. Cortesluna, 142 S.Ct. 4, 7 (2021).

[lix] Id.

[lx] Id.     

[lxi] Id.

[lxii] Id.

[lxiii] Imbler v. Pachtman, 424 U.S. 409, 425 (1976).  (What, then is the first responder’s lot if, as the Court says of prosecutors: “frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation.”)

[lxiv] Indeed the F.B.I. and private organizations dedicate time and effort to tracking police officers killed in the line of duty, one metric of work environment havoc.  See, e.g., Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted (LEOKA) Program, https://www.fbi.gov/services/cjis/ucr/leoka (last visited Jan. 12, 2022).  See also Officer Down Memorial Page, https://www.odmp.org/ (last visited Jan. 12, 2022).  While a memorial exists for prosecutors killed in the line of duty, officials estimate that fewer than 20 prosecutors have been killed in the line of duty during last 100 years.  See Terry Frieden, Murders of prosecutors in U.S. called ‘beyond rare’, CNN.com (Apr. 3, 2013), https://www.cnn.com/2013/04/02/justice/prosecutors-murders-rare/index.html.  Murders of judges occur, but are even rarer. See Esther Salas, My Son Was Killed Because I’m a Federal Judge, N.Y. Times, (Dec. 8, 2020), https://www.nytimes.com/2020/12/08/opinion/esther-salas-murder-federal-judges.html.

[lxv] “A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.” Pierson v. Ray, 386 U.S. 547, 555 (1967).

[lxvi] Harlow v. Fitzgerald, 457 U.S. 800 (1982); Imbler v. Pachtman, 424 U.S. 409 (1976); Stump v Sparkman, 435 U.S. 349 (1978).

[lxvii] Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring).

[lxviii] Imbler v. Pachtman, 424 U.S. 409, 429 (1976).

[lxix] National Conference of State Legislatures, Legislative Responses for Policing-State Bill Tracking Database, https://www.ncsl.org/research/civil-and-criminal-justice/legislative-responses-for-policing.aspx (last visited Jan. 7, 2022).

[lxx]Such action could lead to its own criminal liability. See Adeel Hassan, Scot Peterson Is Released on Bond. Here’s How He’s Explained His Actions During the Parkland Shooting, N.Y. Times, (June 6, 2019), https://www.nytimes.com/2019/06/06/us/scot-peterson-parkland-shooting.html.

[lxxi] In Kentucky, for instance, the mean salary for a police officer is just $45,370.  Bureau of Labor Statistics, Occupational Employment and Wages, 33-3051 Police and Sheriff's Patrol Officers, https://www.bls.gov/oes/current/oes333051.htm (March 31, 2021).   

[lxxii] Imbler, 424 U.S. at 428 (citing Gregoire v. Biddle, 177 F. 2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950)).