By Scott Merrill

The doctrine of qualified immunity that protects federal, state, and local government officials—including police—from civil lawsuits is being scrutinized and criticized by legal scholars, politicians and civil rights advocates in New Hampshire and around the country.

Despite the criticism and increased public awareness of the doctrine—especially in light of recent police violence— immunity protections for government officials continue to grow.

This is happening on a federal level, says Patrick Jaicomo, an attorney at the Institute for Justice in Arlington, VA, because of the Supreme Court’s “increasing hostility” towards the ability to sue federal officials of any type through something called a Bivens cause of action.

Qualified immunity also applies to state and local officials, and UNH Franklin Pierce School of Law Professor, John Greabe, calls the doctrine “a legal fiction.”

To understand these criticisms, and to unearth some of the reasons why a wide-reaching legal doctrine—seemingly arbitrary and fictitious to leading legal minds and those calling for police reform—persists, requires an understanding of the doctrine’s evolution.

 

Qualified Immunity

Qualified immunity is a common law doctrine which provides a defense to civil liability for police officers and other government officials, even if they have violated the Constitution, so long as they have not violated “clearly established” law. Its proponents often say that it is intended to protect officials who “make reasonable but mistaken judgments about open legal questions.”

“If qualified immunity applies, money damages aren’t available even if a constitutional violation has occurred,” Greabe says. “If qualified immunity doesn’t apply, while the government employee or official technically is responsible for money damages, the government entity virtually always pays.”

Qualified immunity is a form of “sovereign immunity” less strict than [absolute] immunity, which provides complete immunity for government officials from civil lawsuits.

“The fictions of sovereign immunity are ridiculous,” Greabe says. “Take police officers, for instance, because they’re the most commonly sued defendants in these cases. The reality is that the cities and towns for which they work are all insured. So, this whole idea of sovereign immunity is a fiction.”

A major problem with the current doctrine of qualified immunity, Jaicomo says, is that the qualifications are of such a narrow nature that it’s very close to absolute immunity.

“The way that it actually works, the doctrine we have today, is that if you’re a plaintiff in a civil rights case, you have to be able to point to an earlier case where essentially the exact same thing happened— where the court said it was unconstitutional—and if you can’t point to that case then the officer of the government is entitled to immunity,” he says. “So, any person who hears that might think, ‘the crazier an official behaves the more likely they are to receive immunity,’ and that’s true, unfortunately.”

 

The Evolution of Qualified

Immunity State and Local

versus Federal Lawsuits

In 1982, the Supreme Court adopted the current test for the doctrine of qualified immunity which says it is generally available if the law a government official violated isn’t “clearly established.”

But the seeds of the qualified immunity doctrine as it is used today were planted in the 19th century.

Following the civil war, Congress established a statute intended to protect freed people. The concern in Congress at the time, Professor Greabe says, was that states weren’t observing federal rights that had been granted.

42 U.S.C. section 1983, referred to colloquially as “1983,” was created in 1871. This statute provided the ability for individuals to sue state and local officials for constitutional violations. Until the 1960s, however, there were few 1983 lawsuits successfully brought and in 1967 the Supreme Court recognized qualified immunity as a defense to so called “1983” claims.

Then, in 1971, Bivens v. Six Unknown Named Agents made it possible for plaintiffs to also sue federal government officials through what has become known as a Bivens action. This course of action is like a 1983 suit but applies to [federal] officials that violate an individual’s constitutional rights.

The difference is that, unlike 1983, Bivens is not a statute, and both Jaicomo and Greabe say the Court has been pulling back on these actions.

“It wouldn’t surprise me at all if in a few years the Court does away altogether with the Bivens actions because the Bivens court, recognizing applied rights of action, is not in favor with the more conservative element of the court today,” Greabe says.

Jaicomo agrees.

“A Section 1983 lawsuit is the right way to sue an official who works for a state or local government, and a Bivens claim is the way someone can pursue a federal official when that official has violated the person’s constitutional rights,” Jaicomo says. “They’ve essentially created this regime of almost absolute, and in many cases absolute immunity, for all federal officials but they don’t call it immunity. They just say you can’t sue this officer so there’s no cause of action.”

Jaicomo points out there are two cases now pending in the Supreme Court where federal appeals courts, accounting for ten states, have said Bivens is dead.

“We’re seeing the transition from qualified to absolute immunity when it comes to suing federal officers of any type. And that’s something we’ve been trying to highlight for people,” Jaicomo says. “Until the George Floyd and Breonna Taylor moments qualified immunity was one of those issues that not many people had heard about. And it was completely nonpartisan.”

In November 2020, Jaicomo argued Brownback v. King before the U.S. Supreme Court. That case, which involves the brutal choking and beating of James King, an innocent college student, by law enforcement officers working as members of a state-federal task force, will now return to the Sixth Circuit. There, the court will decide whether two claims brought in the same lawsuit can cancel each other out, simply because one of the claims was brought against the federal government.

“This case illustrates the lack of accountability that takes place when a police officer and an F.B.I agent violate someone’s constitutional rights,” Jaicomo says. “One of the main ways the government avoids accountability for violating the constitution is through qualified immunity.”

 

Qualified Immunity In

New Hampshire

In 2021, House Bill 111 was tabled. The bill would have waived the state’s sovereign immunity for government officials in cases involving alleged constitutional violations.

One of the sponsors of that bill, Paul Berch, worked as an attorney for the Vermont Public Defender’s Office in Windham County, for 34 years until 2009. During his time in Vermont, Berch says he began noticing issues that would come up about disclosure of evidence involving police misconduct as well as overall transparency involving government officials.

After joining the legislature, his interest grew.

“In New Hampshire we have a triple whammy against transparency in terms of government misconduct,” Berch says, explaining that the more he looked into the statutes and issues, including the state’s exculpatory evidence schedule or “Laurie List,” he found that reporters were being prevented from speaking with victims of government misconduct because of non-disclosure agreements they had signed regarding their cases.

The three impediments for the public’s access to information about public employees that Berch identified include the Laurie List problem, the inability to sue, and the non disclosure agreements that people sign.

“First, if a police officer does something wrong and it’s substantiated, there’s difficulty in accessing that information. Secondly, if you think you’ve been harmed by a government employee you may find out you can’t sue the government for government misconduct. Third, if you manage to reach a settlement in a lawsuit the state can insist on a condition of settlement that you not disclose the details. Put these three things together and you wonder how can you find out what’s going on.”

In May, 2021, the New Hampshire Municipal Association referred to HB 111 as a “dangerous” bill and took aim at support made for the amendment by Ben and Jerry’s Ice Cream founders, Ben Cohen and Jerry Greenfield, saying in a May 14, 2021 newsletter:

“We are not sure why the legal analysis of an out-of-state ice cream vendor should carry any weight in the New Hampshire legislature. Everything Mr. Cohen said is incorrect. Qualified immunity does not say that ‘cops are above the law.’”

HB 111 remains tabled and likely won’t be revisited as it stands but Berch says a new version, leaving out municipal workers, but including law enforcement and other officials responsible for custody of indivuals at a state institutions, will be revistited.

“I think a lot of the opposition last time that came from municipal authorities was misplaced concern but nonetheless it seems simpler to not go that route again,” Berch says. “The whole concept of qualified immunity is fairly recent if you think 1982 [Harlow v. Fitzgerald] is recent. And the skies didn’t collapse without qualified immunity. So, the sky isn’t  going to fall in with a million lawsuits, which is a claim that was made.”

ACLU Smart Justice Campaign Manager, Joseph Lascaze, says qualified immunity provides blanket protections to officers who are there for the wrong reasons. He pointed to the New Hampshire case of Richard Simone, who led police on a high-speed chase through Massachusetts into New Hampshire in 2016 and was then attacked by police after appearing in a helicopter video to be surrendering on the ground.

“When you look at that case, one police officer plead guilty, knew what they did was wrong, and took the sanctions. But the Massachusetts trooper didn’t want to lose their pension and they were able to keep it. That is wrong,” Lascaze says. You can’t have two officers who did the same exact thing and one ends up guilty and the other isn’t. From the community’s perspective qualified immunity provides blanket protection across the board for people in law enforcement who are sometimes there for the wrong reasons.”

Simone’s attempt to receive damages for injuries he claims were received from the attack–and a violation of his Fourth Amendment rights– by police, were dismissed in U.S. District Court.

 

The Phenomenon of ‘Chill’

The idea behind qualified immunity, Greabe says, is to not “chill” government officials in their performance of their official duties.

“It recognizes that they encounter fluid situations and emergencies,” he says. “We don’t want them to hesitate to act out of fear of facing a lawsuit.”

Greabe makes a comparison between qualified immunity and the debate over divisive concepts bills such as the one New Hampshire passed last year that makes it a crime to discuss systemic racism in classrooms.

“It doesn’t matter whether what they’re doing is unconstitutional, teachers could be chilled by the fact that they could be sued,” he says.

Greabe believes a sensible reform would treat lawsuits involving civil rights like other types of lawsuits against government officials.

“There is a federal tort claims act which lays out when you can sue a government when one of its agents does something that harms an individual,” he says.

In these cases, the Federal Tort Claims Act substitutes the individual defendant for the government. And there are state tort claims acts that work the same against state and local officials, Greabe says.

“The phenomenon of ‘chill’ is very real. And I think it would be a much more sensible world if incentives were to bring lawsuits against employers even if those employers are governments. The whole idea of sovereign immunity is based on old fictions,” he says.

Strafford County Prosecutor, Thomas Velardi, says qualified immunity has an important role to play in shielding public officials, such as police and firefighters—and all government officials—from lawsuits that would make it difficult for them to do the jobs.

Velardi believes the national dialogue about qualified immunity is sometimes overblown and he uses an analogy to make his point about the realities police and other public employees face on the ground.

“Find a photo of an officer from 1992 and hold it next to an officer from 2022. The officer in 1992 has far fewer pieces of equipment. We are asking our officers to do so much more today. To go back and dissect every move they make wouldn’t be possible,” he says. “Qualified immunity allows work to get done.”

Velardi says finding the line between a misinterpretation of a law is much different from a willful breach of the law and that the prosecution bar is not immune from prosecution when individuals “run rough shod over rights and duties.”

“We do an awful lot of investigations when it comes to the basic rules of search and seizures for instance,” he says. “Ignorance is one thing, but willful disregard for the rules is another.”

 

Qualified Immunity

“Makes it difficult for good

cops to do their jobs”

Approaching the question from a different perspective, Jaicomo believes qualified immunity places all police and government officials above the law, because the doctrine makes people less trusting of them.

“If people think police can get away with all sorts of things, people will be less willing to engage with them. So many of these cases are being dismissed before fact finding is even done,” he says. “In cases where cops have stolen money the court’s saying, ‘we assume they did in fact steal money’ and yet they are also immune. So, in some cases police don’t even have the opportunity to clear their name,” he says.

Jaicomo pointed to what he calls the red herrings of the qualified immunity discussion, describing former Attorney General William Barr’s response to the Lafayette square protests in 2020 that led to multiple arrests.

“In that incident, Attorney General Barr encouraged peaceful protestors who were arrested to comply with police and to bring a lawsuit later,” he says. “And then of course when the lawsuits came, which were run by Barr, they dismissed the cases because of things like qualified immunity. So you’re just making everything a red herring….it’s always a shell game.”

 

A lawless area of the law

Greabe doesn’t think qualified immunity should be eliminated completely but he does believe the way the doctrine stands prevents the law from evolving because of the arbitrary way it can be used.

“I personally don’t think a world where you just do away with qualified immunity and keep everything else the same would be a good development at all,” he says. “Government officials need some room to breathe. Again, by analogy I go back to the divisive concepts law which is putting a target on the backs of teachers. This is what makes it so unprecedented. Usually, the government wants to create a little zone around their employees to protect them. But here the government’s saying please sue teachers. It’s repugnant.”

Jaicomo and Greabe agree that the politics involved in the qualified immunity debate can’t be overlooked.

While the doctrine has always been criticized by civil libertarians on the left, Greabe says that in recent years it has also come under attack from libertarians more on the right who basically lodge the same complaint.

“I don’t like this area of law at all….It’s so lawless and entirely made up by judges,” he says. “It’s a fair criticism to say that the way that qualified immunity doctrine has been established and developed is the result of judges not being comfortable with lawsuits against government officials. There’s nothing in 1983 that contemplates a qualified immunity defense.”

The requirement to find a “clearly established” law leaves the door open for judges essentially making arbitrary decisions, Jaicomo says.

“It comes down to whether a judge likes your case or whether they think that what happened was particularly outrageous because these doctrines can be massaged in one direction or another regardless of how close the cases are.”