FACULTY Q&A

Police reform efforts nationwide have sparked debate about qualified immunity, a federal doctrine that legally protects officers accused of wrongdoing while on duty.

Michael J. Steinberg

Michael J. Steinberg, a professor from practice and director of the Civil Rights Litigation Initiative at the University of Michigan Law School, says eliminating this protection will hold police officers nationwide more accountable. President Biden wants lawmakers to implement a policing bill by May 25—the anniversary of George Floyd’s murder by a Minneapolis police officer.

Give a snapshot of the qualified immunity cases that you handled. You indicated this doctrine hadn’t been on the public’s radar prior to the Black Lives Matter movement.

In virtually every case where I have sued a government employee for the violation of my client’s constitutional rights, the government has raised the defense of qualified immunity. As a result, I have been involved in cases where judges, after finding that my clients’ rights were violated, dismissed the case because the law was not “clearly established” at the time of the constitutional violation. Qualified immunity essentially says that the police and other government officials are off the hook unless another court has issued a binding decision finding the same conduct to be unconstitutional.

For example, I worked on a case when I was at the ACLU in which teachers had strip-searched every student in a high school class in an unsuccessful attempt to find cash that they thought was stolen. The United States Court of Appeals for the Sixth Circuit agreed with us that such conduct violated the students’ rights against unreasonable searches. However, it then dismissed the case on qualified immunity grounds because there were no prior cases in the Sixth Circuit addressing mass strip searches of high school students.

Although qualified immunity has prevented victims of police misconduct from holding officers accountable for decades, until recently it had been a relatively obscure doctrine that was not on the radar of many non-lawyers. So, when I heard Black Lives Matter protesters chanting, “Abolish qualified immunity,” it warmed my heart and gave me hope that we could eliminate this roadblock to justice.

Why should qualified immunity be abolished?

There are at least three major reasons that qualified immunity should be abolished. First, when a police officer or other government official violates the rights of Americans, the victims of government abuse should be compensated for their injuries. Second, unless the government official who violates constitutional rights is liable, there is no accountability. Third, if government officials know that they will be liable for violating the civil rights of the citizenry, they will be less likely to violate the constitution; without consequences, there is no deterrence.

People who oppose eliminating qualified immunity point to a specific outcome: police morale and performance decline because they assume individuals would file frivolous lawsuits. What is your assessment of this concern?

Qualified immunity does not deter the filing of frivolous suits. Litigating civil rights cases is very costly and time intensive. Attorneys will not take a case if it is frivolous because it would be a waste of time and resources. Furthermore, judges will sanction attorneys and parties for filing a frivolous case and force them to pay the government’s cost in defending a case.

While qualified immunity has nothing to do with deterring the filing of frivolous cases, it does deter the filing of meritorious cases. Even if attorneys know that they can prove that a police officer violated their clients’ rights, they are unlikely to represent the clients unless there is already a court opinion ruling that the conduct at issue was unconstitutional. It is a waste of time and money to bring such a case unless the law is clearly established. And, to compound the problem, because most attorneys would not take such a case, there will be no occasion for the court to declare such conduct unconstitutional and create clearly established law.

There is no qualified immunity for private employees who violate other people’s rights, and there seems to be no problem with their performance. It should be no different for public employees.

What solution could appease both sides of the debate?

Under union contracts, the government almost always pays the judgment when the courts find a police officer or other government official violated an individual’s civil rights. So, even today, government employees who violate the constitution are rarely punished financially.

Some states have passed legislation that eliminates components of qualified immunity. Has policing improved in those communities?

It is too early to scientifically determine if eliminating qualified immunity led to better policing. However, one thing is certain: In communities where qualified immunity is eliminated, victims of police misconduct will be compensated.

Would qualified immunity be an issue if more police officers were criminally prosecuted and convicted?

That’s a big “if.” It is very rare that prosecutors criminally charge police officers and even more rare to convict officers. The Derek Chauvin conviction in Minneapolis is an anomaly. Prosecutors and the police rely on each other and very few prosecutors are willing to charge police officers with crimes. Plus, in criminal cases, the burden is on the state to prove each element of the crime beyond a reasonable doubt—the most difficult standard to meet.

But even in a world where there were more criminal convictions of officers who engage in misconduct, true justice will not be achieved until qualified immunity is abolished. Criminal convictions only solve the problem of holding officers accountable, but it does nothing to compensate the victims of police misconduct.

For example, you could have a case where the jury convicts a police officer in a criminal case for excessive force that leaves the victim paralyzed. But when the victim files a civil case to compensate him for his injuries, the judge could dismiss the case because there is not already a binding case finding the precise conduct unconstitutional. Such a result is untenable.