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Federal civil rights charges were meant to hold police accountable for violence, but decades of "qualified immunity" cases have eroded this power. The Supreme Court's decision to deny certiorari in Baxter v. Bracey and not take a new look at the "qualified immunity" doctrine in its fall term leaves in place an increasingly weakened right to a remedy for human rights violations.    

In the 1871 Civil Rights Act, known as the Ku Klux Klan Act, Congress created a right for individuals to sue public officials who violate legal rights as part of its effort to quell racist violence against newly freed African Americans. Codified in 42 U.S.C. § 1983, the provision allows individuals to file a civil lawsuit for civil rights violations like police brutality, an illegal search, or an unlawful arrest.

Section 1983 provides an additional and alternative civil route to protect civil rights and hold violators accountable, beyond any criminal charges. In Section 1983, Congress used specific language to make clear that "every" state official who causes a "deprivation of any rights" guaranteed by the Constitution and laws "shall be liable to the party injured."  This crucial civil remedy steps in where the criminal justice system fails to provide justice and accountability-either because the state refuses to bring charges, there is no indictment, juries fail to convict, or because a criminal remedy may not provide the avenue needed to make a victim whole, such as damages for pain and suffering. The lower evidentiary standard in civil versus criminal matters, moreover, may be crucial for remedies-a lesson we all learned from the OJ Simpson case.    

Yet, this fundamental right to a remedy has been narrowed over the years through a series of court decisions that created an exception referred to as "qualified immunity." 

What is "qualified immunity"?

Qualified immunity is a judicial doctrine that allows public officials to be held accountable only insofar as they violate rights that are "clearly established" by existing court decisions.  Under the Court's current interpretation of qualified immunity, an individual will fail at a Section 1983 claim for remedies unless they can prove that the officer violated their rights through the same specific conduct previously addressed by a court in narrow circumstances-even where the officer knowingly violates someone's constitutional rights.

The Supreme Court originally upheld application of Section 1983, as in Monroe v. Pape.  However, in 1967, the Supreme Court created "qualified immunity" as an exception for public officials who had acted in "good faith" and believed that their conduct was authorized by law. Fifteen years later, in Harlow v. Fitzgerald, the Court drastically expanded the defense, doing away with the "good faith" element and providing immunity from liability unless the victim can show that his or her right was "clearly established" through a previously decided case that involves the same "specific context" and "particular conduct." In 2001, Saucier v. Katz created a two-part test to determine whether or not to grant qualified immunity to an officer.  This involves: 1) whether an officer used excessive force in violation of the Fourth Amendment and 2) whether the officer should have known that their actions constituted excessive force based on clearly established court precedent. And, in 2009, the Court further expanded this in Pearson v. Callahan, when it ruled that lower courts can make a finding on part two of the test without addressing part one. 

Pearson, combined with a judicial principle of avoiding questions of constitutional interpretation when possible, means that courts have increasingly been side-stepping the important issue of whether particular conduct in fact violates the Fourth Amendment. And because Pearson gives courts the go-ahead to dodge this issue, they are shirking their role in setting out new "clearly established" law to guide officers' conduct in the future.

How does the "qualified immunity" doctrine impact human rights?

The overbroad qualified immunity doctrine has led to growing impunity for human rights violations. Article 2 of the International Covenant on Civil and Political Rights recognizes the fundamental importance of the right to a remedy for human rights violations. But the Court's qualified immunity doctrine undermines Congress's intent to provide a for victims of brutality or harassment by law enforcement.

The data bear out what communities of color have lived. A Reuters team found that from 2005 to 2008, appeals courts granted qualified immunity in 44 percent of cases, but from 2016-2019, that number had jumped to 57 percent.

The prohibitive costs of litigation exacerbate the situation. Although lawyers can recover fees and costs if the case prevails, few attorneys or clients can afford to front the costs when the chances of success are low. And, because the qualified immunity formulation places the onus on the victim to show that a previously recognized right has been violated, courts may dismiss cases by simply finding no sufficiently similar case law-without ever considering the alleged misconduct.  As fewer courts review the constitutional violations in Section 1983 cases, there are decreasingly few new permutations of misconduct found.

The Supreme Court's qualified immunity doctrine has radically undermined Congress's intent, in the aftermath of the Civil War, to hold government actors accountable for human rights violations against Black people. Judges across ideological lines have recognized the problem. Both liberal and conservative justices in recent years have criticized the Supreme Court's qualified immunity case law.  Justice Sotomayor has said qualified immunity's "one-sided approach" is "an absolute shield for law enforcement officers," while Justice Thomas has criticized it for having no legal basis.

With its decision to not hear Baxter v. Bracey, Congress must eliminate the doctrine and restore cornerstone of accountability.

Want to learn more? Check out an excellent audio breakdown of the issue at the front end of this Pod Save the People episode.

By Lindsey Greising, staff attorney at The Advocates for Human Rights.