QUALIFIED IMMUNITY AFTER GEORGE FLOYD: STATE-LEVEL EFFORTS TO REFORM A STAGNANT DOCTRINE

Author: Xavier Fox, Senior Editor

Introduction

Qualified immunity shields government officials, including police officers, from civil damages unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.”[i] While the Supreme Court has recognized that “obvious” constitutional violations can defeat qualified immunity,[ii] it normally finds that “questionable” conduct by police officers is protected.[iii] Often, even what appears to be extreme conduct by police has been found to be protected.[iv] As the Court has explained, qualified “immunity protects all but the plainly incompetent or those who knowingly violate the law.”[v]

This standard for qualified immunity makes it difficult for the public to determine what rights are “clearly established” when dealing with the police and what conduct by police is unprotected.[vi] Because federal doctrine remains unchanged and congressional proposals have stalled, many recent efforts to address qualified immunity have arisen at the state and local levels, particularly in the wake of George Floyd’s murder in 2020 which brought the issue into the center of national political debate.[vii]

The Basic Federal Landscape

42 U.S.C. § 1983 allows individuals to seek damages when state officials, acting under color of law, violate federal constitutional or statutory rights.[viii] Qualified immunity, a common law doctrine neither present in the Constitution nor in § 1983,[ix] serves as a defense unless the right violated was clearly established.[x] However, a government official’s conduct only violates “clearly established” law when, at the time of the challenged conduct, “the contours of [the] right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”[xi]

Moreover, in Pearson v. Callahan, the Supreme Court permitted lower courts to grant qualified immunity without first determining whether the official’s conduct actually violated the Constitution, allowing them to decide only whether the alleged right was “clearly established” at the time of the misconduct.[xii] This procedural flexibility means courts can dispose of cases on the second prong of the qualified immunity test—whether the right was clearly established—without ever reaching the first prong, which asks whether a constitutional violation occurred. Over time, this has limited the development of new constitutional precedents, since fewer decisions explicitly declare certain conduct unconstitutional.[xiii] As a result, it can be difficult for future plaintiffs to show that their rights were “clearly established” at the time of alleged misconduct without a close factual precedent to rely on, further hindering the development of this area of constitutional law.[xiv]

After the murder of George Floyd, Congress came close to comprehensive reform through the George Floyd Justice in Policing Act, which would have limited qualified immunity among other police-accountability measures, but it failed to pass the Senate and has since stalled in Congress.[xv] Faced with the Supreme Court’s reluctance to narrow qualified immunity and Congress’s failure to enact national reform, several states have taken matters into their own hands by passing legislation or recognizing state-law causes of action that do not include the qualified immunity defense.[xvi]

State-Level Reforms Since 2020

Shortly after George Floyd’s murder, in 2020, Colorado enacted the Enhance Law Enforcement Integrity Act (SB 20‑217), which created a state cause of action for violations of the Colorado Bill of Rights by local peace officers and expressly barred qualified immunity as a defense.[xvii] The statute became effective in July of 2023.[xviii] It also authorizes attorney fees for prevailing plaintiffs and clarifies that the Colorado Governmental Immunity Act does not apply to such claims.[xix]

In 2021, New Mexico adopted the New Mexico Civil Rights Act, which prohibited the deprivation of a person’s rights, privileges, or immunities under the New Mexico Constitution or Bill of Rights under color of law.[xx] It authorizes suits for such violations and explicitly prohibits the use of the qualified‑immunity as a defense.[xxi] The Act caps damages at two million dollars per claimant and allows for the recovery of attorney fees from the defendant.[xxii]

Similarly, Connecticut’s 2020 Police Accountability Act established state law civil causes of action for violations of the Connecticut Constitution or state laws by state or municipal police officers acting under color of law.[xxiii] The Act also narrowed officer’s immunity by requiring officers to have an “objectively good‑faith belief” that their conduct did not violate the law at the time it was committed.[xxiv]Additionally, Connecticut law limits interlocutory appeals for the denial of immunity, however, it also provides indemnification to officers by municipalities for any financial loss or expenses they may incur under the statute, including attorney fees.[xxv]

New York City amended its Administrative Code to create a local right of security against unreasonable searches and seizures and excessive force, enforceable by a civil action, it also bars “qualified immunity or any other substantially equivalent immunity” as a defense to such actions.[xxvi] Several bills are pending in the New York State Legislature that would align state law more closely with New York City’s reforms by expressly prohibiting qualified immunity as a defense, but as of this writing, none have been enacted.[xxvii]

In 2022, the Nevada Supreme Court recognized a damages remedy for unreasonable searches and seizures under the state constitution and declined to apply a qualified‑immunity defense absent legislative authorization for such cases.[xxviii] In 2002, well before the murder of George Floyd, the Montana Supreme Court recognized a damages remedy against officers acting under color of state law for violations of certain self-executing provisions of the state constitution and declined to extend qualified immunity to such claims.[xxix]

Since 2020 multiple states, such as Massachusetts, have considered but not enacted broad statutory reforms, while others, such as California, have adopted narrower measures focused on police accountability and oversight.[xxx] Together, these reforms reflect an emerging trend of states seeking to fill the void left by federal inaction, though their approaches and practical effects vary widely. However, over five years after the murder of George Floyd, the doctrine of qualified immunity remains largely unchanged nationwide at both the state and federal levels.

What State Reforms Have—And Have Not—Changed

First, state enactments operate on state‑law claims; they do not alter federal qualified immunity for § 1983 actions in federal court.[xxxi] Second, where states create independent causes of action or recognize damages remedies under state constitutions, plaintiffs may plead parallel state and federal claims, potentially avoiding the federal qualified‑immunity barrier on the state‑law counts.[xxxii] Third, several statutes and local laws provide attorney’s fees and define indemnification, affecting litigation incentives and who ultimately pays judgments.[xxxiii] Fourth, these reforms leave intact other defenses and immunities to alleged violations (e.g., sovereign‑immunity limits and statutory caps).[xxxiv]

Conclusion

Federal reform efforts, including the George Floyd Justice in Policing Act, have stalled, leaving qualified immunity largely unchanged at the national level. Despite a handful of noteworthy state developments—such as Colorado and New Mexico’s broad statutory bans, Connecticut’s narrowed immunity standard, New York City’s local cause of action, and the recognition of state constitutional claims in Montana and Nevada—the broader landscape remains largely static. These reforms appear to represent isolated experiments rather than a systemic shift, and their practical impact is still developing. In sum, qualified immunity continues to operate much as it has for decades, with state-level innovation serving more as a patchwork of exceptions than a transformation of the doctrine itself. Absent congressional action or a shift in Supreme Court doctrine, qualified immunity will likely remain a defining—if controversial—feature of American constitutional litigation.

[i] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (articulating the “clearly established” standard).

[ii] Taylor v. Riojas, 592 U.S. 7, 8–10 (2020) (per curiam) (overruling the Fifth Circuit and holding that confining a prisoner for six days in cells covered in feces and raw sewage was an “obvious” constitutional violation, thereby precluding qualified immunity).

[iii] See e.g., Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per curiam). (A case where an officer shot a fleeing suspect in the back who had ignored commands and attempted to drive away, the Supreme Court held the officer was entitled to qualified immunity because existing precedent did not clearly establish that her split-second decision to use deadly force violated the Fourth Amendment, illustrating the doctrine’s broad protection for police in fact-specific situations).

[iv] See e.g., Fortunati v. Campagne, 681 F. Supp. 2d 528 (D. Vt. 2009), aff’d sub nom. Fortunati v. Vermont, 503 F. App’x 78 (2d Cir. 2012). (The court held that there was no “clearly established” right within the Second Circuit to be free from the deployment of a police SWAT team where officers were asked to check on a mentally unstable man camping in the woods, at the request of a family member, who was then fatally shot during the confrontation).

[v] Kisela v. Hughes, 584 U.S. 100, 104(2018) (per curiam) (quoting White v. Pauly, 580 U.S. 73, 79(2017) (per curiam)).

[vi] See Alexander Mallin & Ivan Pereira, ‘Qualified Immunity’ for Police Getting Fresh Look by Supreme Court After George Floyd Death, ABC News (June 4, 2020), https://abcnews.go.com/Politics/police-immunity-rule-fresh-supreme-court-george-floyd/story?id=71044230.

[vii] See Gary S. Gildin, Legislative Efforts to Abolish Qualified Immunity Yield Mixed Results, State Ct. Rep. (May 30, 2024), https://statecourtreport.org/our-work/analysis-opinion/legislative-efforts-abolish-qualified-immunity-yield-mixed-results; see also H.R. 1280, 117th Cong. (2021) (George Floyd Justice in Policing Act) (passed House Mar. 3, 2021).

[viii] 42 U.S.C. § 1983 (2024)

[ix] See Pierson v. Ray, 386 U.S. 547, 557 (1967). (Holding that the defense of “good faith and probable cause”, an early version of qualified immunity, was available to police officers in an action against them under 42 U.S.C. § 1983 for the arrest of a group of men violating a Mississippi code segregating bus terminals).

[x] See Harlow v. Fitzgerald, supra note i.

[xi] Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

[xii] Pearson v. Callahan, 555 U.S. 223, 236 (2009).

[xiii] See Mallin & Pereira, supra note vi (“Because courts can skip deciding whether a constitutional violation occurred, ‘it’s incredibly hard for plaintiffs to ever get a ruling saying a particular use of force was unconstitutional,’ said Joanna Schwartz, a professor at UCLA School of Law.”); see also Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 7 (2015) (“concerns about constitutional stagnation, while often overstated, appear to have at least some empirical foundation”).

[xiv] See John C. Jeffries, Jr., Reversing the Order of Battle in Constitutional Torts, 2010 Sup. Ct. Rev. 115, 120 (“Going directly to qualified immunity will not only inhibit the development of constitutional doctrine, but will also degrade existing rights to a least-common-denominator understanding of their meaning”).

[xv] See e.g., H.R. 1280, 117th Cong. (2021) (George Floyd Justice in Policing Act) (passed House Mar. 3, 2021, but died in the Senate, primarily due to partisan gridlock over the issue of qualified immunity).

[xvi] See, e.g., New Mexico Civil Rights Act, H.B. 4 (N.M. 2021) (providing that “no public body or person … shall enjoy the defense of qualified immunity for causing the deprivation of any rights … secured by the Constitution of New Mexico”); see also Gildin, supra note vii.

[xvii] S.B. 20‑217, 72d Gen. Assemb., 2d Reg. Sess. (Colo. 2020); Colo. Rev. Stat. § 13‑21‑131(2)(b) (2024) (“Qualified immunity is not a defense to liability pursuant to this section”).

[xviii] S.B. 20‑217, 72d Gen. Assemb., 2d Reg. Sess. (Colo. 2020).

[xix] Colo. Rev. Stat. § 13‑21‑13 (2)(a) (excluding the Colorado Governmental Immunity Act).

[xx] See N.M. Stat. Ann. § 41-4A-3(A) (2024) (“A public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall not subject or cause to be subjected any resident of New Mexico or person within the state to deprivation of any rights, privileges or immunities secured pursuant to the bill of rights of the constitution of New Mexico.”).

[xxi] See N.M. Stat. Ann. § 41-4A-3(B) (2024) (“A person who claims to have suffered a deprivation of any rights, privileges or immunities pursuant to the bill of rights of the constitution of New Mexico due to acts or omissions of a public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body may maintain an action to establish liability and recover actual damages and equitable or injunctive relief in any New Mexico district court”); see also N.M. Stat. Ann. § 41‑4A‑4 (2024) (explicitly prohibiting the use of the defense of qualified immunity for claims under this chapter).

[xxii] N.M. Stat. Ann. §§ 41‑4A‑5 to ‑6 (attorney’s fees, damages cap, limitations).

[xxiii] See July Spec. Sess. Pub. Act No. 20‑1, § 41, 2020 Conn. Acts 20‑1 (Spec. Sess.) (“An Act Concerning Police Accountability”).

[xxiv] See Conn. Gen. Stat. § 52‑571k(d)(1) (requiring an “objectively good faith belief”).

[xxv] Conn. Gen. Stat. § 52‑571k(d)(1), (e).

[xxvi] N.Y.C. Admin. Code ch. 8, §§ 8‑801 to 807

[xxvii] See, e.g., N.Y. S. 176, 2025–2026 Leg., An Act to Amend the Civil Rights Law, in Relation to Providing a Civil Action for Deprivation of Rights (introduced Jan. 2025); N.Y. S. 1950, 2025–2026 Leg. (introduced Jan. 14, 2025) (prohibiting qualified immunity for public officials and authorizing attorney general enforcement).

[xxviii] Mack v. Williams, 522 P.3d 434, 452 (Nev. 2022) (recognizing damages action under Nev. Const. art. 1, § 18 and declining to apply qualified immunity absent legislative authorization).

[xxix] Dorwart v. Caraway, 2002 MT 240, 312 Mont. 1, 58 P.3d 128 (2002).

[xxx] See Gildin, supra note vii; see also Karen Blum, Qualified Immunity: Achieving a Better Balance, Boston Bar Journal (Feb. 25, 2025), https://bostonbar.org/journal/qualified-immunity-achieving-a-better-balance/.

[xxxi] See 42 U.S.C. § 1983; Pearson, 555 U.S. 223 (2009).

[xxxii] See Colo. Rev. Stat. § 13-21-131 (2024); N.M. Stat. Ann. § 41-4A-3 (2024); Dorwart v. Caraway, 58 P.3d 128 (Mont. 2002); Mack v. Williams, 522 P.3d 434 (Nev. 2022).

[xxxiii] See e.g., Colo. Rev. Stat. § 13‑21‑131(3) (fees); Conn. Gen. Stat. § 52‑571k(e) (indemnification).

[xxxiv] See N.M. Stat. Ann. § 41‑4A‑6 (damages cap); Colo. Rev. Stat. § 13‑21‑131(2)(a) (interaction with governmental immunity).