Since the death of George Floyd this past May, and in the wake of the national turmoil his death provoked, both Congress and state legislatures have turned their attention to policing reform — and in particular, the doctrine of qualified immunity. At the federal level, four separate bills have been introduced (both by Democrats and Republicans) that would eliminate or substantially modify qualified immunity nationwide. Meanwhile, several states have either passed or are currently considering policing reform that would eliminate or limit qualified immunity for state-level civil rights claims.
Unfortunately, the discussion around qualified immunity is plagued by misinformation. Nearly all of the defenses I’ve seen raised in support of the doctrine display a profound misunderstanding of what qualified immunity actually is and how it works, and I increasingly find that almost all of my public comments on this issue are devoted simply to correcting clear mistakes. Perhaps unsurprisingly, the most common peddler of such misinformation is the law enforcement lobby, which appears to be acting out of a combination of knee-jerk defensiveness and profound ignorance as to qualified immunity reform.
I therefore thought it would be helpful to identify and correct some of the most flagrant misrepresentations of qualified immunity by law enforcement organizations and leaders. The purpose of this catalogue is both to correct the object-level errors on these particular issues, but also to put the public in general, and policy makers in particular, on notice that they should take with a grain of salt any statements about qualified immunity made by the law enforcement lobby. As these examples illustrate, those statements are simply not reliable.
Read the rest of this post →