What It Is
Qualified immunity is a legal doctrine established by the U.S. Supreme Court that shields government officials, including law enforcement officers, from personal lawsuits seeking monetary damages unless they violate “clearly established” constitutional or statutory rights.
What It’s Not
Qualified immunity only applies to civil lawsuits seeking monetary damages. It does not shield against criminal charges, nor does it prevent law enforcement agencies from disciplining officers. It does not cover ministerial tasks that are strictly defined by law, only discretionary functions where officers must exercise judgment.
It is not “absolute immunity.” Absolute immunity applies regardless of motive, even when constitutional rights are violated. Absolute immunity protects key decision-makers, such as judges, prosecutors, and legislators, from retaliatory lawsuits, allowing them to perform their duties without fear of personal liability.
Court-created Doctrine
“Qualified immunity” does not appear directly in the Constitution or in statute. It was created by the U.S. Supreme Court in 1967 when the Court recognized a “good-faith immunity” for law enforcement officers. The particular case involved officers arresting Black ministers at a protest. Qualified immunity was established to protect officers from liability, even if constitutional rights were violated, as long as the officers were acting in good faith, e.g., relying on the apparent validity of a state law or acting with a probable cause belief. Then, in 1982, the Court set today’s standard of “clearly established law.” The case involved alleged retaliation by presidential aides. The Court made it tougher to hold officials accountable by ruling that they were liable only if they violated clearly established rights.
Shielded from Liability in Practice
When a law enforcement officer is accused of violating someone’s rights, as in an action under 42 U.S.C. § 1983 (also known as a “1983 suit”), qualified immunity can protect the officer from liability if (1) the officer did not violate a constitutional right, or (2) the right was not clearly established at the time of the incident.
“Cleary Established Law”
In 2009, the U.S. Supreme Court ruled that courts need not initially decide whether the conduct was right or wrong, but instead whether the alleged illegality was clearly established in prior case law. In other words, was the right being claimed so clearly established at the time of the incident that a reasonable officer would have understood his or her actions were unlawful? In practice, the plaintiff must find a prior case with nearly identical facts to prove that the law was clearly established. If the specific type of alleged misconduct has not been ruled unconstitutional in a previous, practically identical case, the officer is granted immunity from a lawsuit, even if his or her actions were objectively wrong.
Real Examples of Qualified Immunity Granted (Officer Protected)
- Accidental Shooting of a Child: An officer attempting to shoot a family dog while hunting a fugitive accidentally shot a 10-year-old child lying face down nearby. The court granted immunity because there was no specific prior case ruling it unconstitutional for an officer to fire at a dog recklessly and hit someone nearby.
- First Amendment Retaliation: Police officers used tear gas, and the court granted immunity because the right to observe or record police was not deemed “clearly established” in that jurisdiction at the time.
- Force on Non-Threatening Subjects: The courts have granted immunity in cases where individuals who were deemed not to pose an immediate threat of serious bodily injury or death were shot. In one case, the police shot and killed a man sleeping in his car when he attempted to drive away. In another case, an officer who shot a driver in the back as he tried to flee a vehicle stop was granted immunity. In both instances, the court ruled that the plaintiffs failed to demonstrate any cases of more than mere similarity in which an officer was held liable; thus, the “clearly established law” standard was not satisfied.
Real Examples of Qualified Immunity Denied (Officer Liable)
- Illegal Traffic Stop: A court denied immunity to officers who stopped a car because it was clearly established law that stopping a car without reasonable suspicion is unlawful.
- Warrantless Search: Officers who conducted an illegal search because their warrant lacked a description of the items to be seized were denied immunity because it was clearly established that it violated the Fourth Amendment.
- Excessive Force/Unlawful Entry: The court denied immunity to officers who used a Taser on a man after entering his home without a warrant because it was clearly established that such an entry was unlawful.
Arguments For and Against Qualified Immunity
For: Protects officers from frivolous lawsuits, allows officers to make quick decisions without fear of constant litigation, prevents courts from second-guessing reasonable mistakes, and encourages decisive, independent decision-making by allowing officers to operate without the threat of lawsuits.
Against: It makes it very hard for victims to win civil rights lawsuits, requires nearly identical past cases to prove a right was “clearly established,” reduces accountability for police misconduct, and can leave victims without legal recourse, even if officers intentionally violate rights, encouraging an environment where officers act with impunity.
Restricting or Eliminating Qualified Immunity at the State Level
States. Although it remains a federal legal doctrine, several jurisdictions, including Colorado, Montana, Nevada, New Mexico, Connecticut, and New York City, have enacted state laws to restrict or eliminate qualified immunity. This change requires a plaintiff to file a lawsuit under state law instead of under 42 U.S.C. § 1983. In 2020, Colorado became the first state to statutorily eliminate qualified immunity for law enforcement officers against state-level constitutional violations, potentially holding officers personally liable for up to $25,000 in damages if they act in bad faith. The legislation established a new civil action for deprivation of rights by law enforcement officers. The law explicitly states that qualified immunity is not a defense and limits the applicability of the Colorado Governmental Immunity Act.
Maine. A 2021 proposal in Maine, LD 214 (An Act To Limit Qualified Immunity of Law Enforcement), aimed to abolish qualified immunity for police officers, enabling them to be sued at the state level for civil rights violations. The proposal was rejected by a 9-1 vote in the Judiciary Committee, effectively killing the legislation.
Federal. While there appears to be little interest from the U.S. Supreme Court in revisiting qualified immunity, the Ending Qualified Immunity Act is proposed federal legislation that would abolish it. The bill amends 42 U.S.C. § 1983 to prevent “good faith” or “not clearly established” rights from being used as defenses in civil lawsuits against law enforcement. Originally introduced in 2020, the Act was reintroduced in the 118th Congress (2023-2024). As of March 2026, the bill has been reintroduced in the 119th Congress (2025–2026) as H.R. 3602 in the House and S. 1913 in the Senate.