Qualified immunity, explained. And why police reformers want to end it

Bruce Kelley Jr. was in a gazebo in Wilkinsburg, outside of Pittsburgh, when two police officers approached him and accused him and his father of drinking in public on January 31, 2016.

The situation escalated. Kelley pulled a knife, pointing it at police while backing away slowly. He ended up surrounded by 14 officers, with their guns drawn, when a police K-9 unit showed up. 

Police released the dog. Kelley stabbed and killed it. The K-9 officers opened fire, killing Kelley.

Kelley’s death sparked protest in Pittsburgh, but as the Capital-Star has previously reported, holding police accountable for their use-of-force is difficult in Pennsylvania.

How police accountability works in Pennsylvania

If a county district attorney declines to press charges —  as was the case with Kelley — or a jury finds an officer not guilty, victims of police brutality still have one form of legal recourse: A civil rights lawsuit.

Kelley’s family did just that, filing a case in 2017 against the officers and their supervisors, claiming they used excessive force.

But the Kelleys’ case was, at least temporarily, dismissed because of a policy that some policing reformers are calling to change — qualified immunity.

How does it work?

Citizens have been able to hold local officials liable for violating their civil rights ever since the 1870s, when Congress passed laws to protect Black Americans from the Ku Klux Klan in the post-Civil War South.

This means that everyday citizens can sue and seek big money damages if they believe their rights have been violated.

For example, the family of Antwon Rose Jr. sued the officer who shot him, as well as the borough of East Pittsburgh, for his death in 2018. The family was awarded $2 million.

Attorneys say such awards serve as a warning to police departments and officers to be on their best behavior.

But in the 1960’s, the U.S. Supreme Court created a loophole, as a way to protect public servants from high-stakes lawsuits. This is known as qualified immunity.

This immunity applies to all public servants. As such, public sector workers from police to teachers say the doctrine maintains a delicate balancing act, giving government officials the benefit of the doubt when handling their complicated but necessary work.

Under qualified immunity, public workers can not be in legal jeopardy for their actions unless “every reasonable official” would know that their conduct was violating a “clearly established” constitutional right — or if the official was “plainly incompetent.”

This immunity also prevents officers from standing for a civil trial, let alone paying damages, if a court agrees they qualify for it. In this way, it’s another policy that keeps police conduct private, since the public can’t see the documents, testimony and other information that could come to light in a trial.

What’s the impact?

Subsequent rulings have expanded this provision, so that in practice, qualified immunity makes it difficult for use-of-force lawsuits to succeed in civil court. For example, a federal district court ruled that the officers who shot Kelley had acted in an “objectively reasonable” way, and dismissed the case.

Dismissals have accelerated in recent years. Between 2005 and 2007, federal courts ruled against police in 56 percent of excessive force cases, according to a Reuters investigation. Between 2017 and 2019, federal courts ruled in favor of police in 57 percent of cases.

In the current legal interpretation, lawsuits against police can only succeed if there is a similar legal case where the exact conduct was already found unconstitutional, according to Lawfare.

Legal observers have pointed out that this limits the number of successful cases, by limiting the creation of new precedent, while also allowing more questionable behavior to go unpunished.

For example, a 2019 decision by the United States Court of Appeals for the Ninth Circuit agreed that SWAT police firing tear gas into someone’s home violated the individual’s 4th Amendment rights. But since there was no clear precedent, a civil rights lawsuit against the officers was dismissed because of qualified immunity.

On appeal, the Kelley family had a little more success. The United States Court of Appeals for the Third Circuit, based in Philadelphia, ruled in September 2019 that “it was not at all reasonable for officers” to have shot him given the circumstances. So, their case will proceed.

But even if their suit succeeds, it’s not at all clear that the officers responsible would end up footing the bill. 

According to a 2014 UCLA study, police officers almost never pay for the award of a lawsuit, even if the officers were disciplined, fired, or prosecuted for their conduct.

For example, the study found that between 2006 and 2011, Pennsylvania State Police paid out $25.7 million from civil rights lawsuits, while Philadelphia police paid out $38.7 million. Neither department could say how much was paid back by officers.

Will this change?

Probably not.

The U.S. Supreme Court said this week that it would not review the policy this year, according to NPR. 

That’s despite two ideologically opposite justices — Sonia Sotomayor and Clarence Thomas — agreeing that the high court should revisit the judicially-created doctrine.

With a judicial solution delayed, changes would fall to Congress. The Democratic-controlled U.S. House included ending qualified immunity in a policing reform bill unveiled this month. But the Republican-controlled U.S. Senate does not support such a measure. 

Because qualified immunity is written into federal law, the Pennsylvania General Assembly cannot address it.

But under state law, law enforcement officers have blanket immunity from liability from any use-of-force lawsuits.

The measure was passed in 2011, tucked into the state’s Castle Doctrine law, which allows individuals to shoot and kill trespassers on their own property. The proposal passed with wide bipartisan support, and was signed by then-Gov. Tom Corbett.

House Minority Whip Jordan Harris, D-Philadelphia, announced a bill to roll back this specific protection, and remove municipal and sovereign immunity protections for officers under state law. 

But this is seperate from qualified immunity, which applies to federal civil rights lawsuits, not state tort law, according to legal experts. And as the UCLA study suggests, officers may not be personally paying for their misconduct.