Qualified immunity is a judicial doctrine created in 1967 by the U.S. Supreme Court. This doctrine provides public officials—most notably law enforcement officers—with a shield of protection from civil liability as long as their conduct does not violate a clearly established statutory or constitutional right about which a reasonable person would have known.


In the wake of the May 25, 2020 murder of George Floyd by four Minneapolis police officers, state and local officials have undertaken dozens of police reforms with hundreds more pending before city councils, state legislatures, and U.S. Congress. Calls from community activists, lawmakers, and police reform experts have collectively demanded an end to qualified immunity as the essential reform. Police unions and politically allied lawmakers have resisted these demands with the common theme that police would be more susceptible to frivolous criminal prosecutions and civil lawsuits for alleged misconduct without the protection of qualified immunity, especially in fatal shooting events.


Qualified immunity has nothing to do with criminal prosecutions. It does not stand as either a bar or a defense to criminal prosecution. Whether or not a law enforcement official faces a criminal prosecution depends upon (1) whether a prosecutor believes conduct violates a specific criminal statute and (2) whether the prosecutor is convinced they have sufficient admissible evidence to bring about a conviction.


In reality, whether a law enforcement official will be prosecuted for alleged criminal misconduct depends upon the political leanings or affiliations of the local district attorney. A district attorney facing reelection is not likely to file criminal charges against a law enforcement official, especially in a high-profile police shooting, for fear of upsetting local police unions, who have resources and a bully pulpit.


Elected DAs Refuse to Prosecute Bad Cops 


For example, Philip M. Stinson, a criminal justice professor at Bowling Green State University and a highly respected source on police misconduct data collection, pointed out that between 2005 and 2014, a period during which the police were involved in nearly 9,000 on-duty fatal shootings. Only 110 police officers were charged with either murder or manslaughter in connection with those thousands of deaths—and only 42 of those resulted in a criminal conviction.


Virtually all the defenses in these prosecutions involved justifiable homicide, self-defense, or defense of others. Qualified immunity never entered the courtroom in these cases.


But the judicial doctrine did rear its ugly head in the thousands of state wrongful death and federal civil rights lawsuits. 


Some of the most egregious cases were settled long before they ever came close to a jury trial. State and local governments made calculated financial and public relations decisions to resolve these cases out of court, often denying responsibility.


However, in most cases, judges dismissed the suits because the police officers raised the qualified immunity defense in a motion to dismiss the action. Either legitimately bound by longstanding precedent or simply using precedent as a flimsy legal excuse not to hold the police accountable, judges summarily dismissed most of these civil lawsuits. Some honest judges have openly criticized qualified immunity.


Judges Grow Weary of Qualified Immunity


For example, in August 2020, U.S. District Court Judge Carlton W. Reeves, sitting in the Southern District of Mississippi, was forced to dismiss a federal civil rights lawsuit against a police officer who engaged in blatant misconduct. Judge Reeves expressed his displeasure—displeasure shared by more and more judges—at what the judicial doctrine of qualified immunity has done to the rule of law and individual accountability:


“ … Tragically, thousands have died at the hands of law enforcement over the years, and the death toll continues to rise. Countless more have suffered from other forms of abuse and misconduct by the police. Qualified immunity has served as a shield for these officers, protecting them from accountability.


“This Court is required to apply the law as stated by the Supreme Court. Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.


“But let us not be fooled by legal jargon. Immunity is not exoneration. And the harm to one man in this case sheds light on the harm done to the nation by this manufactured doctrine.


“As the Fourth Circuit concluded: ‘This has to stop.’”


As Judge Reeves noted, the manufacturer of this doctrine, the U.S. Supreme Court, has so decimated the qualified immunity landscape that the doctrine now operates, in real life, “as absolute immunity,” as Judge Reeves pointed out.


SCOTUS Refuses to Hear Immunity Case


In a May 24, 2021 decision refusing to hear a significant qualified immunity defense case involving a fatal police shooting, the Supreme Court effectively reinforced Judge Reeves excoriating view that the high court has turned a limited qualified immunity defense into an absolute immunity that historically has been reserved for kings and queens. The case, Stewart v. The City of Euclid, originated from the Sixth Circuit Court of Appeals.


In Stewart, the police fatally shot a 23-year-old Black American man named Luke Stewart in the chest and neck in Euclid, Ohio, on March 13, 2017. Stewart’s mother brought a federal wrongful death lawsuit against the police officer and the City of Euclid. The U.S. District Court ruled that the case against the officer was barred by qualified immunity. The court essentially found that the immunity defense applied because the officer believed he was in physical danger when he fatally shot Stewart. The court also dismissed the lawsuit against the City of Euclid, finding no constitutional violation.


The case was appealed to the Sixth Circuit. 


On August 18, 2020, the Sixth Circuit ruled that while a jury may have found that the officer’s fatal shooting of Stewart was excessive, the officer was shielded by qualified immunity from any civil damages. The Court reached this conclusion because there was no precedent that “clearly established” that the officer’s conduct was unlawful. And while the appeals court called the Euclid Police training materials that trivialized police abuse “distasteful” and “inappropriate,” the Court said that unless an officer’s unlawful conduct is “clearly established,” the city could not be held responsible for that conduct.


This past December, the Reuters news agency conducted an extensive investigation that showed how lower federal courts, as described by Judge Reeves, are dismissing legal actions against police officers, even when they find, as Judge Reeves did, that the officer’s conduct was wrongful.


The message from the Supreme Court is this: police have an unquestioned right to beat, injure, and kill whoever they choose, particularly people of color, without any concern that they will ever face any civil liability for their unlawful actions.


And that was the message that rang out from the Supreme Court on May 24, 2021, when it refused to hear Mary Stewart’s appeal.  Everyone should have their day in court, especially those abused and killed by bad cops.