
The movement to increase accountability for police officers who use excessive force may have seen its most significant setback yet with the second election of Donald Trump as president.
Trump has promised the nation’s police officers that he will grant them “immunity from prosecution,” a move that legal experts say would deal a severe blow to efforts to prosecute law enforcement officers accused of harming suspects while in custody. Jurisdictions across the nation began revisiting their policies for handling police misconduct after the death of George Floyd, the Minneapolis man who was murdered by police after being accused of using counterfeit money.
Even before Trump’s election, the widespread self-examination of handling complaints of police abuse had begun to lose momentum.
But what would protecting officers from prosecution mean? And how is it related to the U.S. Supreme Court ruling earlier this year found that Trump’s actions as a private citizen are not immune from criminal prosecution, but as president he has “absolute immunity.”
Capital B spoke with legal experts Devon Carbado and Delores Jones-Brown about the differences between “qualified immunity,” which police officers are typically granted as part of their investigatory powers, and “absolute immunity,” which the Supreme Court ruled Trump holds.
What is absolute immunity?
There are certain customs associated with positions of authority — such as president, judge, prosecutor, law enforcement officer, or medical and emergency services professional — that allow people in these roles to perform their duties without fear of civil, criminal, or personal consequences. These informal protections can sometimes create a sense of immunity or unchecked power, which raises concerns about accountability.
“However,” says Jones-Brown, a professor emeritus at the John Jay College of Criminal Justice in New York, “if the underlying charge is one for which there is no statute of limitations, or there is an expanded statute of limitations, my understanding is that the prosecution will not be precluded once that person is out of office.”
The U.S. Supreme Court used this principle — which is not a formal law, policy, or statute — as the foundation of its ruling in July. Trump has leaned into the ruling when he swore to seek vengeance against those whom he sees as an enemy, and pledge to grant police officers immunity.
Prosecutors in the legal cases against Trump are responding to the ruling as well: Federal investigators have dismissed their indictment against him for interfering in the 2020 election without prejudice, leaving the door open to refile charges when he’s not an elected official.
The Founding Fathers did not intend for a president to have absolute immunity, and that’s why we have three branches of government to serve as checks and balances against one another. Trump’s efforts to undo that core principle, including packing the court with conservative justices, Jones-Brown says is “perhaps the closest existential threat of the president being able to control the branches of government.”
“This idea that we’re thinking that Trump can do whatever he wants — Trump maybe thinks he can do whatever he wants with impunity — really doesn’t exist,” says Jones-Brown.
“It’s one of those kinds of things where he may be delaying the inevitable, as opposed to getting away scot free with behavior that would otherwise be charged as criminal to a person who was not the president.”
What is qualified immunity?
Qualified immunity is a “judge-created rule that protects government officials, including police officers, when they are sued,” according to the NAACP Legal Defense Fund.
The doctrine has been used in many cases to protect officers who have been accused of misconduct, including excessive use of force and fatal shootings.
“The doctrine holds that officials who violate other people’s constitutional rights can only be held responsible if there exists a previous court decision, with very similar facts, that resulted in other officials being held accountable,” according to the LDF.
Several nonprofit organizations, including Black Lives Matter Grassroots, corporations such as Ben & Jerry’s, and civil rights law firms such as the LDF, have joined the fight to end the legal doctrine.
What are the origins of qualified immunity?
It’s not a law, nor is it written in the U.S. Constitution. The phrase was introduced in April 1967 by U.S. Supreme Court justices. The all-white-male panel decided, in Pierson v. Ray, that while a group of Black and white clergymen had their civil rights violated when they were arrested by police in Jackson, Mississippi, for occupying a whites-only waiting area of a bus depot, they could not sue the officers for the arrests.
The 8-1 vote kicked the case back to the lower court to decide whether the police officers’ arrests were illegal. The lone dissent, written by Justice William Douglas, noted that the Ku Klux Klan Act of 1871 says that “every person” without exceptions who are acting under the color of law and violated the law are to be held liable. Douglas also highlighted that the Supreme Court should have made a full and not partial decision in the clergymen’s case because “some state courts have been instruments of suppression of civil rights and were partially responsible for the wrongs to be remedied.”
When Douglas wrote his dissent, note how he cited a previous case in order to make his argument. Experts say that’s the key to disqualifying a police officer from qualified immunity, but it can be a tricky task.
Since the court’s ruling, qualified immunity has garnered definitions and synonyms such as an exception rule, legal principle, or doctrine. During the 1980s, the Supreme Court ruled on more cases that expanded qualified immunity to other law enforcement and professions such as government officials and school administrators.
How difficult is it to argue that an officer should be held accountable in a civil lawsuit?
In order to disqualify a police officer from qualified immunity in a civil lawsuit, there had to be a prior ruling where the actions of a police officer — in the same jurisdiction and with identical circumstances — have been ruled unconstitutional or illegal.
The law thrives on looking to the past to figure out the future. Attorneys do extensive research before filing a lawsuit to know if what happened to their client happened before to know if their case will be successful. If a case has enough legal standing to proceed and hasn’t been decided before, through litigation, it can become a precedent.
Jones-Brown says that, for example, once a police department has been put on notice that using a particular police-trained technique is banned and another officer uses that same technique anyway, then that officer “should not then be able to take advantage of qualified immunity because notice went to the profession.”

But even with laws and policies, it doesn’t stop misconduct from happening, right?
In 1993, the New York City Police Department banned the use of chokeholds, or carotid holds. A year later, Anthony Baez was choked to death by a Bronx officer who was eventually acquitted of state criminal charges, fired after a departmental trial, and sentenced to seven years in federal prison for violating Baez’s civil rights. Twenty years after Baez, Eric Garner was choked to death by a Staten Island officer who was also fired after a departmental trial.
For Garner, “nothing happened criminally to the officer, but the department had to pay out the money because knowledge is already available in the profession that these kinds of restraint techniques can cause death,” Jones-Brown said.
A New York state judge approved a $4 million settlement in 2017, and the city settled for $5.6 million in 2015 with the Garner family. The city previously settled with Baez’s family for $3 million.
But when it comes to qualified immunity, there are few cases of police misconduct that have been ruled illegal or unconstitutional in a way that provides clear legal precedent for future cases. This lack of precedent makes it difficult for judges to automatically disqualify officers from receiving the legal protection of qualified immunity. As a result, attorneys defending an officer can argue that qualified immunity should be granted because their client was doing their job and acting in good faith under the law at the time of the alleged misconduct.
“People may be overly optimistic about the ability of the removal of qualified immunity to achieve the desired effect that is going to reduce the kinds of police behavior that we want to hold them responsible for, whether we’re talking about holding them responsible civilly or criminally,” Jones-Brown said.
Eliminating qualified immunity from the record is just the beginning to changing police behavior, Jones-Brown said. Regular de-escalation and implicit bias training may lead to positive results, as was seen in 2020 by Newark, New Jersey’s police department, which didn’t have any police shootings.
Why are some lawmakers against passing two pending federal bills?
The George Floyd Justice in Policing Act and the Ending Qualified Immunity Act are calling for the end of qualified immunity for law enforcement officers. Both bills were introduced following Floyd’s murder. The former bill passed a vote in the House, and despite President Joe Biden’s call for the vote to push through the Senate, it still lingers. The latter bill was reintroduced in March 2021 and is still sitting in the House.
A part of the discussion about keeping qualified immunity on the books is the concern that police officers will feel like they cannot do their jobs effectively under threat of a lawsuit.
Carbado, a law and African American studies professor at UCLA School of Law, says that police officers are already protected by law. The Fourth Amendment is “an entire body of law that assumes, in many instances, police officers will make mistakes, and that the question is whether or not the mistakes are reasonable.”
“So we don’t need qualified immunity for that. … Thus, the concern that qualified immunity is necessary to ensure that police officers are permitted to make a reasonable mistake is not persuasive,” he said.
“Another set of concerns that people have is that when you sue police officers, you are effectively going to bankrupt them. That’s not persuasive because studies have demonstrated that when police officers are sued, and people win those lawsuits, who pays? Typically, local government, not police officers,” Carbado said.
Of the 167 publicly reported police misconduct lawsuit settlements that the National Police Fund Database tracked since 2009, over $2.2 billion has been paid out. Most jurisdictions have indemnity laws that allow the government to absorb an officer’s portion of a settlement.
Politicians “are afraid that people won’t apply for the policing job anymore and officers will quit in droves,” Jones-Brown said in reference to the Homerville, Georgia, police department’s staff of 10 that resigned in protest last month after their chief was arrested and fired over allegations of improper evidence handling and other charges.
“You’re not going to find a lot of Black people, people of color, who are in the policing profession who are doing this quitting en masse, but you will find lots of white men who will quit their department en masse when you question their authority,” Jones-Brown said. “Powerful white men expect to be supported by other people, particularly other white men.”
She says politicians, who may agree to end qualified immunity, won’t vote for it on the record out of fear that their constituents may not vote for them again if crime rises and officers start quitting. There’s also a concern of losing the endorsement of police unions.
What are local governments doing?
“As we move in the direction of shifting the way policing operates today, all the levers of power should be used. So we shouldn’t just wait at the Supreme Court. We shouldn’t just wait on Congress. We should also think about state courts. We should also think about administrative regulations,” Carbado said.
Last year, the Supreme Court declined to listen to a case of a man who was arrested for allegedly making fun of an Ohio police department on Facebook. The jokester was acquitted after trial but was blocked from suing because of, you guessed it, qualified immunity.
In recent years, states such as New Mexico and Colorado passed legislation to amend qualified immunity on the local level for government officials and peace officers, respectively, who were found by their employer to have violated an individual’s constitutional rights. With these reforms, families and victims of police violence can file a lawsuit in state court where they don’t have to go through the legal hoops qualified immunity causes if a federal lawsuit is filed.
The Colorado law narrowly passed the buck to the officer. The officer has to pay 5%, or $25,000, of the settlement amount if their employer found that their actions were not in good faith but were legal. If the officer can’t pay, then their employer will pay the officer’s portion of the settlement. The New Mexico law allows people to sue police officers and other government officials without the need of a precedent case, which is at the root of qualified immunity.
Carbado says that “all the tools in the toolbox need to be used because this is a pressing public problem that goes to the core of our democracy, so I don’t think we should leave any stone unturned.”
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