Disqualifying Immunity: How Qualified Immunity Exacerbates Police Misconduct and Why Congress Must Destroy It

Abstract

The United States is currently in the “post-Ferguson” era of the fight for civil rights—an era defined by calls for criminal justice reform, police accountability, and radical revolution of law enforcement. This era, much like its predecessors throughout American history, is perpetuated when police are not held accountable for violating constitutional rights. Qualified immunity is a defense asserted by executive officials, including police, to claims of constitutional violations brought against them under 42 U.S.C. § 1983. The defense prevents the judiciary from protecting those constitutional rights. Commentators have recognized that qualified immunity hinders community-police relationships and police accountability efforts in America. In order to argue for the defense’s dissolution, some have suggested the U.S. Supreme Court unconstitutionally created the defense in violation of separation of powers principles. Others have argued that the judiciary is the best branch qualified to change or destroy the defense. However, the author argues that Congress, and not the Court, should change, if not destroy, the defense. Both statutory stare decisis and congressional assent to the defense protect it from meaningful change by the Court. Furthermore, Congress is better situated to address the political concerns that accompany problems caused by qualified immunity. The author provides Congress with compelling reasons to overrule the Supreme Court’s qualified immunity doctrine with statutory condemnation of the defense—including an analysis of the history and purpose of both 42 U.S.C. § 1983 and the defense’s adoption as well as the history of racial protests and public outcry in response to police misconduct and governmental failure to hold police accountable. The author argues that complete dissolution of the defense accompanied by a requirement that officers hold individual liability insurance best satisfies the purposes of 42 U.S.C. § 1983 and resolves police accountability concerns.