Legislative Efforts to Abolish Qualified Immunity Yield Mixed Results 

Even amid increased attention on state constitutional rights, there has been scant focus on states limiting remedies for deprivations of those rights. One issue looms large over the success of the state constitutional project: whether officials who violate the state constitution may escape liability for damages by asserting qualified immunity.

Qualified immunity — a judge-made doctrine that shields government actors from liability for constitutional violations — is neither provided for in the U.S. Constitution nor present in the text of an 1871 statute authorizing damages actions against “every person, acting under color of state law,” who “subjects, or causes [a citizen] to be subjected” to a deprivation of rights guaranteed by the U.S. Constitution, known as Section 1983. 

Despite Congress’s instruction to broadly and liberally construe Section 1983 to provide relief — expressed in the act’s legislative history — the Supreme Court has held that Congress intended to allow government agents to assert a qualified immunity, which it asserts was recognized at the common law at the time Congress enacted Section 1983. On its own initiative, the Court expanded that common law immunity to bar recovery of damages — even for malicious conduct — whenever the constitutional right was not “clearly established” at the time of the violation.

But the impact of qualified immunity extends beyond exonerating individual officials. Because the Supreme Court has also rejected vicarious liability for local governmental entities, ruled that state entities may not be sued for damages, and shown antipathy to equitable relief, a qualified immunity finding usually leaves an innocent victim of constitutional wrongdoing without any remedy. Despite criticism from several of its justices, the Supreme Court has shown no inclination to reconsider its qualified immunity jurisprudence. Similarly, proposals to abolish qualified immunity have languished in Congress.

But states need not follow Congress’s lead. They can outlaw qualified immunity in suits where plaintiffs seek damages for the infringement of state constitutional rights.

Several state legislatures have done just that. The Colorado legislature, for example, authorized a damage action against a “peace officer” who deprives a citizen of individual rights secured by the state constitution and further prescribed that neither qualified immunity nor any statutory immunities are available as a defense. Last month, a Colorado appellate court reversed dismissal of an action against a police officer brought under the statute for using excessive force in violation of the state constitution — underscoring that qualified immunity did not protect the officer.

In New Mexico, following the recommendation of a civil rights commission convened in the wake of the murder of George Floyd, the state legislature enacted a Civil Rights Act ordaining a civil action against government actors who cause a deprivation of rights secured by the bill of rights of the state’s constitution. That act specified that “no public body or person” sued under the act “shall enjoy the defense of qualified immunity.

And the New York City Council recently amended its administrative code to create a cause of action against police officers who deprive citizens of the right to be free of unreasonable searches and seizures, including excessive force, as defined by the state constitution; that law further detailed that the officer may not assert “qualified immunity or any other substantially equivalent immunity” as a defense to liability.

The principal defect in the strategy of pursuing legislation to eliminate qualified immunity, however, is that it relies on a majoritarian process to protect the very rights that tend to limit the power of the majority. Indeed, recent legislation in four other states has favored freedom of governmental action and preserving public funds over safeguarding constitutional rights.

In 2021, the Iowa legislature broadened the qualified immunity defense, furnishing immunity to both individual officers and municipalities when the right “was not clearly established at the time of the alleged deprivation, or at the time of the alleged deprivation the state of the law was not sufficiently clear that every reasonable employee would have understood that the conduct alleged constituted a violation of law.”

In Connecticut, the legislature approved the creation of a civil action for damages against police officers who infringe rights guaranteed by the state constitution’s Declaration of Rights, but also sanctioned “a defense to a claim for damages when, at the time of the conduct complained, the police officer had an objectively good faith belief that such officer’s conduct did not violate the law.”

The Massachusetts legislature in 2021 rejected a proposal to remove the “clearly established rights” requirement in actions brought against law enforcement officers under the Massachusetts Civil Rights Act. Instead, the legislature precluded qualified immunity only in actions that also result in the officer being decertified by a newly created commission overseeing peace officer standards. 

And the California legislature abrogated only three statutory immunities in actions against peace and custodial officers when it amended the Tom Bane Civil Rights Act in 2021 — despite expressly declaring that “the judicially created doctrine of qualified immunity in federal courts, and broad interpretations of California law immunities . . . too often lead to officers escaping accountability in civil courts.” 

Thankfully, the legislative process is not the sole means of procuring accountability of governmental wrongdoers. Advocates of reform may push for a state constitutional amendment barring qualified immunity — a more durable means of protecting rights and remedies. Or they may turn to the courts, which are the supposed counter-majoritarian protectorate of constitutional rights. Regardless of the path, the elimination of qualified immunity is critical to expanding the ability of citizens to vindicate the rights secured by their state constitution.

Gary S. Gildin is a professor at Penn State Dickinson Law School.