In 1871, the Reconstruction-era Congress passed an act known as the Civil Rights Act. This statute was designed to counteract attacks on the rights of newly freed slaves in the South, particularly by the Ku Klux Klan. President Grant asked Congress to provide the federal government additional authority to combat white supremacists in the South. The law was added to the statute book less than a month after the President’s request.
One of the provisions of this act, now known as Section 1983, reads in part as follows: “Every person who, under color of any statute of any state, subjects any citizen of the United States to the deprivation of any rights secured by the Constitution and laws, shall be liable to the party injured in a proper proceeding for redress.” In other words, the Reconstruction-era Congress decided that, where there is a right, there must also be a remedy.
Someone reading this statute might conclude that an individual, or the family of an individual, injured or killed by the use of disproportionate or unlawful violence by police could file suit against the police officer or officers responsible for committing the injury. If so, the threat of such lawsuits might serve to restrain police from using excessive force. However, this is not the way the Supreme Court has interpreted Section 1983 for the past half-century.
Beginning in 1967, the Court has created a doctrine known as “qualified immunity” that essentially absolves police in almost all conceivable situations from being held accountable for their actions through civil lawsuits. Qualified immunity, according to the justices, insulates police and other government officials from civil liability for alleged violations of constitutional rights, as long as those officials do not violate “clearly established law” of which “a reasonable person would have known.”
This doctrine was first propounded by the Warren Court, generally known for its expansion of constitutional rights in the 1950s and 1960s. But as Chief Justice Warren wrote in 1967, “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.”
Criminal justice scholars who have studied the qualified immunity doctrine have concluded that the defense is successful more than 90 percent of the time. In other words, fewer than one in 10 citizens bringing an allegation of excessive force against police officers even gets a chance to present their case at trial: the rest of the cases are thrown out before trial on the basis of the qualified immunity defense.
It is important to note that the qualified immunity defense is not mentioned in the text of any law passed by Congress. It is purely a judge-made doctrine, which rests not on the Constitution, but on the Supreme Court’s interpretation of a statute passed nearly 150 years ago.
The qualified immunity defense is not supported by all the current members of the Supreme Court. Interestingly, opposition to this doctrine crosses ideological lines. Clarence Thomas, the most conservative member of the high court, has written that the doctrine has no historical basis and is an example of the justices “substituting our own policy preferences for the mandates of Congress.” At the other end of the spectrum, Justice Sonia Sotomayor has said that her colleagues’ “one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers.”
The current focus on police violence, in the cases of George Floyd and others, once again brings attention to the qualified immunity doctrine. There are 10 appeals now pending in the Supreme Court that call on the justices to narrow or overrule the doctrine. One hopes that Justices Thomas and Sotomayor will be able to persuade their colleagues to take up one or more of these cases for review in the Supreme Court’s next term.
Eric L. Davis is professor emeritus of political science at Middlebury College.