Could Wisconsin Be the Next State to Overhaul Qualified Immunity Protection for Police?

Task Force on Racial Disparities begins discussion on the controversial legal doctrine during a Kenosha meeting.

Members of the Assembly Speaker’s Task Force on Racial Disparities met Thursday morning to focus their discussions, in part, on whether police reform should include changes to qualified immunity, the legal doctrine that acts as a near-impenetrable defense for police against being held accountable in civil lawsuits.

The task force has no legal authority, so it cannot unilaterally end or reform qualified immunity, but it will submit recommendations to the state Legislature based on its findings.

An end to qualified immunity is one of the most common demands of activists protesting against police brutality across the nation and in Wisconsin who took to the streets in the last year after the killing of George Floyd in Minneapolis and shooting of Jacob Blake in Kenosha. Protesters say abolishing the doctrine will allow victims of police brutality to get some form of justice in the absence of criminal charges against officers who abuse their power.

But what exactly is qualified immunity, and how did it become so powerful?

Earlier: Blake Shooting Amplifies What Kenosha’s Black Residents Have Long Known: Inequality Is Alive and Well

Qualified immunity is not a law, nor can it be used as a defense if a police officer is criminally charged. It’s simply a legal doctrine created in 1967 by the US Supreme Court. Justices originally intended to protect from civil lawsuits individual government employees, such as police officers, who acted in “good faith” and weren’t knowingly violating someone’s rights.

The immunity granted at the time did not protect officers from brazen violations of constitutional rights. It was originally intended to shield individual officials from lengthy court proceedings, according to a study in the Yale Law Journal. Doing so would mean such employees aren’t afraid of getting sued for simply performing their duties, according to the Court’s reasoning.

“A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does,” eight of nine Supreme Court justices wrote in their 1967 decision.

However, since qualified immunity’s inception, it has been greatly expanded. Supreme Court justices have written that the doctrine should not protect objectively bad actors who knowingly or intentionally violated someone’s rights, but it doesn’t work that way in practice.

That’s because in 1982, the high court ruled officials can only be held accountable if their actions violated “clearly established” legal precedent, essentially meaning that unless a court in the past sided with a victim in nearly identical circumstances and context, the official won’t be punished—even if that official knowingly violated the victim’s rights.

That expansion resulted in a vicious cycle in which there is no “clearly established” precedent, which deters people from filing cases, which prevents precedent from being established to be used in future cases.

“It’s just this endless feedback loop of, the police can do anything they want,” said Ed Fallone, a law professor at Marquette University and former Wisconsin Supreme Court candidate.

As a result of the drastic expansion of qualified immunity, government officials and police officers are frequently shown to be essentially above the law, according to The Appeal, a nonprofit news organization that covers the criminal justice system.

That stark reality can be seen in a 2019 federal appeals court case documented by The Appeal. In the case, two police officers were accused of stealing about $225,000 while they executed a search warrant. The officers claimed they were entitled to qualified immunity, and the court agreed because it had never dealt with such a scenario before, according to The Appeal. The case was dismissed.

The facts of the case need to be all but identical for courts to recognize the established precedent, Fallone said, making it “very easy” for police to get off on technicalities.

“It’s not just that this doctrine exists,” Fallone said. “It’s that the police officers and the lawyers for the police unions know how to use the doctrine to cut off any potential liability.”

The Supreme Court has been hesitant to accept cases that could force the justices to address or roll back parts of qualified immunity, a 2020 Reuters analysis found. In the 15 years before the analysis, the Court agreed to hear 12 appeals from police seeking a high court ruling that allowed them to claim qualified immunity. Meanwhile, the Court accepted just three appeals from victims asking the justices to rule against qualified immunity, Reuters found.

Fallone said the Supreme Court made a mistake when it established qualified immunity. Civil lawsuits, he said, are important tools to prevent unjust activity when the criminal justice system fails to do so, whether it be due to a lack of resources, a prosecutor who is hesitant to charge police, or a jury that acquits officers in a trial setting.

“Civil lawsuits are very important as a way of having society be able to enforce our standards on government actors,” Fallone said. “And so I think it was a mistake even to create this form of immunity. But then once created, [the Supreme Court] made it worse because they continued to let it evolve and make it more broad.”

Blake’s family wants qualified immunity to end. Seven out of 15 members of the Milwaukee Common Council last month sent a formal request to President Joe Biden asking him to ban qualified immunity with an executive order. 

Nationally, there is a desire for qualified immunity reform from many Democrats and even some Republicans, but it remains a controversial topic among moderate lawmakers.

Last June, Colorado became the first state to ban qualified immunity. Lawmakers in Maryland are discussing a bill to limit qualified immunity.