HOUSTON – Amid the nationwide calls for greater police accountability, a legal doctrine known as “qualified immunity” is becoming a larger part of the national discussion.
Qualified immunity can shield government officials, including police officers, from civil liability, even if their actions are later determined to be a violation of constitutional rights.
The U.S. Supreme Court first allowed qualified immunity in the 1960s, when justices stated officers could not be held liable for enforcing a law that was later struck down as unconstitutional. In the 1980s, justices added officers could not be held liable if they did not violate a “clearly established” constitutional right.
University of Houston law professor Emily Berman said officers are granted qualified immunity if they can show their actions were done in good faith. Berman said debate arises over the phrase “clearly established.”
“The line is not necessarily as clear cut as it could be,” Berman said. “The line is somewhere in there and different judges are going to find it in different places."
Critics argue “clearly established” sets too high a burden because it requires the law to predict every single situation an officer can face before a precedent is set.
“That standard needs to go away because it is really prohibiting people being able to seek justice,” said Andre Segura, legal director the ACLU of Texas. “Our opinion is qualified immunity should be abolished.”
However, president of the Houston Police Officers’ Union, Joe Gamaldi argues removing this protection would open officers up to a barrage of lawsuits from everyone they arrest.
“If they know for a fact that they’re going to be sued by every single person they arrest because they don’t have qualified immunity, I would be unreasonable to tell you that’s not going to have an impact on policing across the country,” Gamaldi said.
Gamaldi argues removing qualified immunity would also leave officers vulnerable to civil liability if a law is later struck down as unconstitutional.
“They need to know that if they’re doing their job, within policy, within the law, within how they were trained, that they’ll be protected from civil lawsuits,” Gamaldi said. “In egregious cases, officers won’t be covered, so I think there’s a lot of misinformation.”
Cleveland attorney David Mills represented a Houston man who was shot during a confrontation with police in 2010. Mills contends qualified immunity can remove a citizen’s right to have their case heard by a jury.
“That’s where it sort of creates this cloud of immunity and extra protection,” Mills said.
Mills represented Ricardo Salazar-Limon, who was shot and paralyzed during a confrontation with a Houston police officer. Police said Salazar-Limon was pulled over on suspicion of driving while intoxicated and scuffled with the officer on the side of a freeway. Police said Salazar-Limon resisted arrest and started heading back to his truck before starting to turn toward the officer while reaching into his waistband.
Police said the officer fired one shot because Salazar-Limon refused orders to show his hands and he feared Salazar-Limon was reaching for a weapon. Police later determined he was unarmed.
The courts granted the officer qualified immunity and the Supreme Court declined to hear the case, ending the matter without a trial.
“The way our system works, a jury decides, to the best of their ability, ideally after hearing them both testify, what’s the truth,” Mills said.
You can read more about the arguments in that case here.
There are a handful of qualified immunity cases pending before the Supreme Court and legal scholars anticipate the Justices will take up the issue, especially since Justices Sonia Sotomayor and Clarence Thomas have expressed concerns over how this doctrine is applied.
Two bills have also been filed that would end qualified immunity in its current state.