In response to a recent rise in news stories about police shootings, the qualified immunity doctrine has been subject to intense criticism that characterizes the doctrine as a means by which law enforcement officers can escape accountability for their actions. Critics of the doctrine have pursued efforts to narrow the doctrine’s reach through legislative reform.

The qualified immunity doctrine protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).  Qualified immunity is not merely a defense, but instead provides complete immunity from suit, which means that it must be resolved as early as possible during litigation.  Id. (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)).

Plaintiffs seeking to impose liability against law enforcement typically bring a § 1983 action for excessive force.  A plaintiff can only overcome an officer’s qualified immunity defense if he or she can show: (1) a significant injury; (2) that resulted from the use of clearly excessive force that violated the individual’s Fourth Amendment rights; and (3) that the force used was objectively unreasonable, taking into account what a reasonable officer would do in the specific circumstances confronting the officer at the scene.

Critics of the qualified immunity doctrine have sought to restrict the doctrine by limiting the discretion officers must often exercise in volatile situations.  For example, California state legislators have purposed legislation seeking to amend the “reasonable officer” legal framework by injecting a “necessity” standard that requires de-escalation techniques while confining use of deadly force only to situations where “it is completely necessary.” See A.B. 931, available here.

Limiting officer deference in this way, however, may not have the desired effect on law enforcement.  Rather, officers facing dangerous situations in the line of duty could be stuck between a rock (potential civil liability for improper use of force) and a hard place (job discipline or serious injury resulting from failure to timely act).  See, e.g., “I don’t Want to Shoot You, Brother” by Joe Sexton (discussing a police officer that was fired for failure to shoot a suspect that was potentially dangerous to others).

Police response to volatile situations is undoubtedly complex.  Life and death decisions must be made in a split second.  Qualified immunity is meant to eliminate from a police officer’s calculus whether any action at the scene will result in civil damages.  Legislative changes and other attacks against qualified immunity must be careful not to undermine the sensible protections qualified immunity affords.

Crabbe, Brown & James’ Managing Partner, Larry H. James, has served as General Counsel to the National Fraternal Order of Police (FOP) since 2001. The National FOP is the world’s largest organization of sworn law enforcement officers with more than 350,000 members in more than 2,100 lodges across the United States. For more insight on qualified immunity, check out Crabbe, Brown & James’ article to be published in the FOP Journal, forthcoming Spring 2019.