By Codie Ross

In the wake of the death of George Floyd and an intensified focus on police power and alleged incidents of police brutality, many lawmakers are calling for sweeping reform to laws pertaining to police misconduct.  Likewise, the country’s highest court has also been asked to reconsider the doctrine of “qualified immunity”—granting police officers and other state and local officials broad protection from lawsuits. 

The doctrine of qualified immunity is common law, developed in recent decades by the United States Supreme Court.  As applied to police, the doctrine initially asked two questions:  (1) Did the police use excessive force?; and (2)  Should the police have known that the conduct used was illegal because it violated a “clearly established” prior court ruling that barred such conduct?  The developed caselaw was intended to protect police from frivolous lawsuits, and to allow for grace where a police officer was forced to make a split-second judgment in a tense or dangerous situation.

Critics to the doctrine argue that several cases with fact patterns similar to or worse than those in George Floyd’s arrest have been dismissed because there is no prior court decision with nearly identical facts.  In other words, in order to show that the law was “clearly established,” the court has generally required plaintiffs to point to an already existing judicial decision, with substantially similar facts.  The U.S. Court of Appeals for the Ninth Circuit issued a recent decision demonstrating this point.  In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. The Court of Appeals assumed that the police actually violated the plaintiff’s Fourth Amendment rights.  However, it granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Arguments in support of the doctrine have included the obvious deterrence of frivolous lawsuits, the encouragement of participation in lawful policing, and the fear that the threat of litigation will have a chilling effect on effective and appropriate law enforcement activities.  In other words, if police and local officials are constantly in fear of the legal ramifications of actions during tense or dangerous situations, they may be more likely to disengage, thus leaving innocent citizens at risk.

The Ninth Circuit case, as well as seven others are currently pending before the Supreme Court.  Some conservative justices have called for a re-examination of the doctrine on the basis that it was formulated by the courts without any historical basis.  Liberal justices want a review of the doctrine because they believe it provides too much of an absolute shield for law enforcement officers.

In recent days, members of Congress have also called for police misconduct reform legislation. Included in some versions of proposed legislation is a statute affecting the doctrine of qualified immunity.  Should Congress pass such a law, the courts would be required to follow its mandates.


Without a doubt, the coming decisions by the Supreme Court and any potential legislation by Congress will have a direct effect on municipalities, their law enforcement branches, and the relationships they will have with their insurance companies and legal teams.  If you have any questions about this or other related topics, please contact any member of our Government and Public Entity Liability Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.


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