After nationwide protests erupted following the tragic killing of George Floyd, the calls to abolish the doctrine of qualified immunity have intensified dramatically. Legislatures are answering the calls for police reform by introducing bills that would eliminate the qualified immunity defense. While it is crucial to re-examine the doctrine itself, legislatures around the country should proceed with caution before disposing of the immunity.

Ultimately, the doctrine of qualified immunity allows police officers to provide the highest possible standard of protection and care to the public without fear of being held personally liable unless they violate clearly established law.

Generally, governmental actions that require the exercise of discretion but are not judicial or quasi-judicial are entitled to "qualified immunity," meaning that they are immune from liability unless performed in bad faith or without a reasonable basis. Signature Health Ctr., LLC v. State, 28 Misc. 3d 543, 902 N.Y.S.2d 893 (Ct. Cl. 2010), aff'd, 92 A.D.3d 11, 935 N.Y.S.2d 357 (2011). Qualified immunity's function is to protect government officials from liability for damages when performing discretionary duties as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Alex LL. v. Dep't of Soc. Servs. of Albany Cty., 60 A.D.3d 199, 872 N.Y.S.2d 569 (2009).

Qualified immunity is not a catch all however; it is available to all government officials except those officers who, on an objective basis, are either "plainly incompetent" or "knowingly violates the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Beyond this, even allegations of malice are not "sufficient to defeat immunity if the defendant acted in an objectively reasonable manner" and that immunity should be recognized where officers of reasonable competence could disagree on the issue. Calixto v. City of NY, 2019 U.S. App. LEXIS 29849, at *4 [2d Cir Oct. 4, 2019, No. 18-1222-cv].

"[A] plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity defense only by showing that those rights were clearly established at the time of the conduct at issue." Airday v. City of New York, No. 14-CV-8065 (VEC), 2019 WL 4385992, at *6 (S.D.N.Y. Sept. 13, 2019).

Of note, advocates of police reform argue that qualified immunity improperly denies recovery to injured persons and encourages police brutality. Daniel Epps, Abolishing Qualified Immunity is Unlikely to Alter Police Behavior, The New York Times, (June 16, 2020). Ninth Circuit Judge Stephen Reinhard has expressed that the recent Supreme Court decisions defending qualified immunity have "created such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights." Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 7 (2017).

In light of recent events, the push for reformation regarding the doctrine of qualified immunity has been revitalized. Specifically, the scrutiny of the intersectionality between the doctrine of qualified immunity and policing. Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests, The New York Times, (June 23, 2020). As a result of this exacting scrutiny, fundamental changes in both the federal and state level have begun to roll out. For example, the state of Colorado, has recently become the first state to enact legislation that functionally ends the qualified immunity defense. S.B, 20-217, 72nd Gen. Assemb., Reg. Sess. (Colo. 2020).

In addition to the myriad of provisions increasing police officer accountability and transparency, Senate Bill 20-217 has created a statewide right of action recognized under Colorado state law. Therefore, state citizens no longer have to file a claim in federal court for a violation of their civil rights, but rather they can bring a cause of action under Colorado law for infringements of their rights under state law. Id.

On the federal level, new bills have been introduced in Congress that seek to eliminate qualified immunity for law enforcement. The "Justice in Policing Act" and the "Ending Qualified Immunity Act" are two bills introduced in the House of Representatives that aim to terminate the qualified immunity defense for police officers, and increase police accountability. H.R. 7120, 116th Cong. (2019-2020); see also H.R. 7085, 116th Cong. (2019-2020).

Most recently, companion legislation to the "Ending Qualified Immunity Act" has been introduced by Senators Edward J. Markey, Bernie Sanders, and Elizabeth Warren. The legislation seeks to codify that qualified immunity is not grounds for defense for police officers who violate constitutional rights. See Press Release, Senator Markey, Senators Markey, Sanders, and Warren Introduce Legislation to End Qualified Immunity (July 1, 2020).

The doctrine has also received opposition from the Supreme Court. Two Supreme Court justices, Justice Sonia Sotomayor and Justice Clarence Thomas, have urged the court to re-examine the doctrine of qualified immunity. In Sotomayor's dissent (joined by Justice Ruth Bader Ginsburg) in Kisela v. Hughes, she posits that the Supreme Court, "routinely displays an unflinching willingness" in allowing lower courts to grant qualified immunity to officers, but "rarely intervenes" when courts wrongly afford officers qualified immunity. Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018). She further contends that the doctrine had become an "absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment." Id. Additionally, in Ziglar v. Abbasi, Justice Thomas criticized the doctrine of qualified immunity and recommended that "in an appropriate case, we should reconsider our qualified immunity jurisprudence." Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017).

While reform to the qualified immunity doctrine has gained momentum, the Supreme Court, in the recent case, Baxter v. Bracey, has declined to take a closer look at qualified immunity. Baxter v. Bracey, 590 U.S. __ (2020). In his dissent, Justice Thomas stated that because 42 U.S.C. §1983 qualified immunity doctrine "appears to stray from statutory text," he would have heard the case. Id. Thomas further stated that the text of §1983 "ma[kes] no mention of defenses or immunities…and instead applies categorically to the deprivation of constitutional rights." Id.

Proponents of the qualified immunity doctrine argue that the doctrine strikes the right balance in allowing police officers to effectively do their job, but also holding police officers accountable when they violate clearly established law. The benefits of qualified immunity were described distinctly in Pearson v. Callahan, where the Supreme Court stated that qualified immunity "balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. Pearson v. Callahan, 555 U.S. 223, 231 (2009).

The Supreme Court suggests that "[w]hen officials are threatened with personal liability…they may well be induced to act with an excess of caution or otherwise to skew their decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide their conduct." Forrester v. White, 484 U.S. 219, 223 (1988). Allowing for qualified immunity maximizes social utility and social welfare by enabling officials to act without limitation toward the public good. Michael L. Wells, Qualified Immunity After Ziglar v. Abbasi: The Case for a Categorical Approach, 68 Am. U. L. Rev. 37.

If officers were personally liable for every constitutional violation, whether or not there was clearly established law on the matter, they might hesitate before acting in the interest of the public because an error would lead to personal liability. Id. For example, a police officer may decline to make an arrest that arguably violates the Fourth Amendment, even if that arrest would have benefited society as a whole and even if the arrest was warranted. Id. The availability of a defense protects officers who act in the public interest. Id. Thus, the defense encourages the police officer to make the arrest in the interest of the public without worrying about the looming personal liability ramifications. Id.

In Scheuer v. Rhodes, the Supreme Court opines that "[t]he public interest requires decisions and actions to enforce laws for the protection of the public…public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices.

Implicit in the idea that officials have some immunity—absolute or qualified—for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all." Scheuer v. Rhodes, 416 U.S. 232, 241-242 (1974). These interests still ring true today.

While valid concerns regarding the application of the doctrine of qualified immunity have been raised, legislatures should exercise discretion and caution prior to amending or eliminating the immunity. Eliminating the immunity would subject police officers to undue personal liability claims and potentially hinder them from acting in the best interest of their communities.

Kenneth E. Pitcoff and Andrea M. Alonso are partners at Morris Duffy Alonso & Faley.  Yalda Khwaja and Jeremy Gerstenhaber, paralegals, assisted in the preparation of the article.