Controlling qualified immunity: Amend the Civil Rights Act

The killing of George Floyd by Minnesota police has sparked protests for racial justice throughout the country. The use of excessive or lethal force by the police also has prompted the discussion of whether the defense of qualified immunity has a continued place in American jurisprudence.

The Civil Rights Act of 1871 imposes civil liability upon "every person" who while acting under color of state law violates a plaintiff's constitutional or other federal rights. 42 U.S.C. Section 1983. But government officials, including the police, who perform discretionary functions generally are shielded from civil liability when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Section 1983 makes no mention of qualified immunity, rather the doctrine was judicially created. In Pierson v. Ray, 386 U.S. 547 (1967), the Supreme Court extended a qualified defense to police officers sued for unconstitutional arrest and detention. The court derived the defense from the common-law background of tort liability. With the passing years, the court's rationale for qualified immunity has changed to a balancing of competing values, such as litigation costs and efficiency.

On June 15, the Supreme Court continued the trend of taking a pass on reexamining the doctrine of qualified immunity in excessive police force cases. The court failed to muster the votes of four justices to hear the following cases: Baxter v. Bracey, use of a police dog against a surrendered suspect (18-1287); Brennan v. Dawson, police warrantless search (18-913); Zadeh v. Robinson, police warrantless search (19-676); Corbitt v. Vickers, police use of deadly force against a 10-year-old child (19-679); West v. Winfield, police use of tear-gas grenades and destruction of an innocent woman's home (19-899); and Mason v. Faul, police use of deadly force (19-7790).

One case remains on qualified immunity and the use of lethal force by the police. It is set for the court's conference on June 18. In Cooper v. Flaig (19-1001), Cooper was killed by the police after being tased nine times in a three-minute period. He was killed in his parent's home, was experiencing a mental health episode, and was under the influence of drugs. Cooper was, however, "unarmed, respectful, and never attempted to make physical contact." Cooper's wife and family filed suit under Section 1983. The federal district court denied the police officers the qualified immunity defense, but the 5th U.S. Circuit Court of Appeals reversed on the theory the plaintiffs "could not show that the law was so clear that no reasonable officer would have used the same extreme force." The petitioners now ask the Supreme Court to "eliminate or significantly revise" the doctrine of qualified immunity. They persuasively argue that the doctrine has no statutory basis and is contrary to historic government immunity principles. Because Cooper was African-American, the case adds fuel to the common litany of excessive force complaints by persons of color.

Many argue that the defense of qualified immunity protects the police more than the Civil Rights Act protects its citizens. But exposing a police officer to individual liability does not provide a meaningful remedy for the Floyd family or others, because few individual police officers judged legally culpable are apt to have the financial resources to respond to a judgment against them.

One solution is for Congress to consider amending the Civil Rights Act to make employers liable to the extent that private employers would be liable for the torts of their employees. This exposure to potential liability would incentivize local authorities to be more careful in vetting and training their police officers. The additional financial exposure could be offset through third-party insurance.

The Federal Torts Claims Act of 1946, which applies to federal law enforcement officials acting within the scope of employment, allows plaintiffs to sue and obtain compensation from the federal government. The fact that the employee committed an illegal or wrongful act does not automatically mean that the employee acted outside the scope of employment. This ensures that persons injured by federal employees receive compensation and justice, so the idea of meaningful financial liability for citizens injured by the police is not remarkable. If the court fails to significantly revise or eliminate qualified immunity, Congress should act. 