What is Qualified Immunity and Why Is Everyone Talking About It?

By Andrew Leonatti on August 21, 2019 | Last updated on January 10, 2022

Years of headline after headline of police shootings, prosecutors declining to bring charges, and protestors taking to the streets has finally forced a discussion over police use of force.

And one of the most important components of that discussion is the concept of “qualified immunity.” The little-known and rarely discussed issue is slowly becoming a talking point in the Democratic presidential primary battle.

Defining Qualified Immunity

The concept of qualified immunity came about via the Supreme Court in 1967, which carved out a protection from civil liability for government employees who were acting in “good faith” when they violated someone’s civil rights. Additional decisions over the years have expanded the protections.

Essentially, that means if a police officer or some other government employee violates your civil rights, it will be harder to sue them than it would a non-government employee. The goal is to make it easier for government employees to do their jobs without having to constantly worry about lawsuits.

Many criminal justice advocates argue that this gives police a “license to shoot first and think later” or use excessive force against protestors and other people they are arresting. Their argument goes that ignorance of the law is not a defense in criminal court, so it shouldn’t be a defense in lawsuits either.

A Talking Point for 2020

While several left- and libertarian-leaning politicians have talked about the need for criminal justice reform for years, the movement is now gaining traction in the Democratic presidential debates.

Candidate Julian Castro earned praise when he called for an end to qualified immunity. “What we’re trying to get at here is to ensure that police officers have to give due regard for the human life that they’re dealing with,” Castro told supporters. Castro wants a national use of force standard that all police will have to abide by. California just passed a law making its usage of force standards tighter.

Since then, Sen. Elizabeth Warren has also called for reining in qualified immunity protections.

At the same time, however, the New Jersey General Assembly unanimously passed a bill extending qualified immunity to police officers of private colleges and universities, such as Princeton and Monmouth universities. While the bill still has to get through the state Senate, that one of the bluest states in the country would take up this issue seems to not mesh with the national mood on the left.

It appears the debate will continue for some time.

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