Why can't we get rid of qualified immunity?
Asked by: Annie Smitham MD | Last update: January 28, 2026Score: 4.1/5 (15 votes)
We can't easily get rid of qualified immunity nationwide because it's a federal court doctrine, requiring either the Supreme Court to overturn its own rulings or Congress to pass a law, but states can pass their own laws to limit it, leading to a mix of state and federal protections. Supporters say it protects officials from frivolous lawsuits and split-second decisions, while critics argue it shields officials from accountability for constitutional violations, making it hard to sue for civil rights abuses.
Can qualified immunity be taken away?
The Supreme Court created qualified immunity out of whole-cloth less than four decades ago. It is up to the Supreme Court to get rid of it by simply overturning Harlow v. Fitzgerald. That said, if Congress wants to get rid of qualified immunity, it also has the power to do so.
Have any states abolished qualified immunity?
Colorado, New Mexico, and Montana have effectively abolished qualified immunity for state law claims, while Nevada's Supreme Court ruled against its application for state constitutional rights, and New York City ended it for city officers in local cases, allowing lawsuits for rights violations under state law where federal immunity would apply. These states created pathways for citizens to sue government officials, including police, for constitutional violations at the state level, bypassing the federal standard that often shields officers.
Should qualified immunity be banned?
Critics argue that this lack of accountability undermines public trust in law enforcement and perpetuates a culture of impunity. Victims' Rights: Banning police immunity would potentially make it easier for victims of police misconduct or excessive force to seek recourse through civil litigation.
What is the proposal to end qualified immunity?
Introduced in House (04/25/2023) This bill eliminates the defense of qualified immunity in certain civil actions for deprivation of rights. Qualified immunity is a judicially created doctrine that protects government officials from being held personally liable for constitutional violations.
Qualified Immunity: Unjust Or Necessary?
How to defeat qualified immunity?
Legal Strategies for Overcoming Qualified Immunity
Filing in state courts – Some states allow lawsuits under state constitutions, where qualified immunity may not be as strong a defense. Leveraging public pressure – High-profile cases and media attention can sometimes influence courts and lawmakers to act.
What would the end qualified immunity act do?
Abolishing qualified immunity does not mean that anyone who files a civil rights lawsuit would automatically win their case against an officer. Instead, it would eliminate a barrier that arbitrarily prevents juries from hearing and deciding cases on their merits.
Can a judge lose qualified immunity?
A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.
What does it mean if a cop loses qualified immunity?
Qualified immunity shields police officers—including those who have engaged in excessive force—from even going to trial. Ending qualified immunity doesn't mean police would automatically be held liable for alleged excessive force. But it would mean that people who are harmed by police could get their day in court.
Did the Supreme Court give the president absolute immunity?
On July 1, 2024, the Court ruled in a 6–3 decision that presidents have absolute immunity for acts committed as president within their core constitutional purview, at least presumptive immunity for official acts within the outer perimeter of their official responsibility, and no immunity for unofficial acts.
What states don't have police quotas?
In many places, such as North Carolina, California, Texas, and Florida, traffic ticket quotas are specifically prohibited by law or illegal.
What disqualifies qualified immunity?
Other constitutional rights violations that can disqualify law enforcement from claiming qualified immunity include, but are not limited to: Illegal search and seizure (violate the right of privacy and no seizure without probable cause).
What states have gotten rid of qualified immunity?
Colorado, New Mexico, and Montana have effectively abolished qualified immunity for state law claims, while Nevada's Supreme Court ruled against its application for state constitutional rights, and New York City ended it for city officers in local cases, allowing lawsuits for rights violations under state law where federal immunity would apply. These states created pathways for citizens to sue government officials, including police, for constitutional violations at the state level, bypassing the federal standard that often shields officers.
Can cops be sued personally?
Yes, police officers can be sued personally for violating constitutional rights or other misconduct, often under 42 U.S.C. § 1983, but the defense of qualified immunity frequently protects them unless they violate a "clearly established" right, meaning the government entity usually pays damages if a violation occurs, even if the officer is technically liable. Lawsuits target an officer's individual actions, but typically the municipality provides their defense and pays settlements or judgments, making personal financial risk for the officer rare, though they can be sued in both personal and official capacities.
What are criticisms of qualified immunity?
Critics also decry qualified immunity's practical justifications. For example, if qualified immunity is meant to protect individual government officials from financial ruin, it appears to be protecting them from a danger that does not exist.
Can a president overturn a Supreme Court ruling?
No, the President cannot directly overturn a Supreme Court decision; only the Court itself (through a new ruling), the Constitution (via amendment), or new legislation by Congress can overturn a major ruling, though Presidents can try to influence future decisions by appointing new justices or challenge rulings through appeals, and historically, some have selectively enforced or ignored certain rulings, as seen with Lincoln and the Dred Scott case.
Can the president change the number of Supreme Court Justices?
No, the President cannot directly change the number of Supreme Court Justices; only Congress has that power by passing a law, but the President must sign that law for it to take effect, meaning both branches must agree, as seen with the Judiciary Act of 1869 fixing the number at nine. While presidents appoint justices, they can only fill existing vacancies or new ones Congress creates, as the Constitution doesn't set the court's size, allowing Congress to adjust it as a legislative check.
Does judge Hannah Dugan have immunity?
Milwaukee County Judge Hannah Dugan has argued she has judicial immunity for her actions in a federal obstruction case, claiming her conduct was part of managing her courtroom, but the federal court rejected her motion to dismiss, allowing the case to proceed to trial, as judicial immunity generally protects against civil suits, not criminal prosecution for alleged unlawful acts. Prosecutors contend immunity doesn't shield criminal acts, while Dugan's defense cites precedents like Trump v. United States, arguing her actions (like directing movement in court) are official acts protected from prosecution, a claim supported by an amicus brief from retired judges.
What would happen if we ended qualified immunity?
Finally, eliminating qualified immunity would stop the stream of court decisions denying plaintiffs relief and sending the message that officers can violate people's rights with impunity, and that their rights do not matter.
What states don't have qualified immunity for cops?
These changes do not impact the doctrine of qualified immunity as applied to federal constitutional law. Colorado, Connecticut, New Mexico, and New York City have either ended qualified immunity altogether or limited its application in court cases involving state law claims.
Is qualified immunity going away?
Following ICE Murder of Renee Good, Markey and Pressley Expand Push to End Qualified Immunity for ICE Agents, Federal Officers. Washington (January 13, 2026) – Senator Edward J. Markey (D-Mass.) and Representative Ayanna Pressley (MA-07) today announced the introduction of the Qualified Immunity Abolition Act of 2026.
What is Trump's immunity ruling?
The Supreme Court's 2024 ruling in Trump v. United States granted former presidents broad criminal immunity for official acts, establishing absolute immunity for actions within core constitutional powers and presumptive immunity for others, but no immunity for private acts, sending the case back to lower courts to determine which actions fall into protected categories, significantly impacting prosecution of Trump's alleged efforts to overturn the 2020 election.
Why does qualified immunity exist?
Why was qualified immunity created? In 1967, the United States Supreme Court introduced qualified immunity in Pierson v. Ray to protect police officers from financial liability after they arrested 15 clergy members for breaching the peace after they attempted to use a segregated waiting room at a bus station.
How do cops lose their qualified immunity?
Cops lose qualified immunity when their actions violate a "clearly established" constitutional right, meaning a reasonable officer would have known their conduct was illegal, often requiring a prior case with nearly identical facts, and they acted with deliberate indifference, bad faith, or used excessive force that a court finds unreasonable under the circumstances (e.g., shooting someone fleeing after the threat passed). A judge uses a two-part test: did they violate a constitutional right, and was that right clearly established?.