Qualified Immunity? What Is It and What Happens If It Is Gone?

Lately there have been calls to restrict or remove “qualified immunity” or “QI”, without any real sense that anyone knows what it is, what it does and why it is important.

First, let’s start with what it isn’t. QI has nothing to do with shielding officers from criminal conduct.  QI has nothing to do with discipline of an officer.   QI has nothing to do with the day to day actions of government officials, including police.

QI is a legal theory that holds that the government (taxpayers) should not be liable for acts which they believe are lawful but, due to changing court opinions or no court opinions, was not clearly wrong when the action occurred.  

Historically, government actions fell under “absolute immunity” also known as “sovereign immunity” meaning the government was absolutely immune from suit. It was simply impossible to sue the government.  This stemmed from old English law that the King was the ruler whose acts could not be questioned.  Even today, most states, like Washington agree that absolute immunity is too harsh. 

Most people would be surprised to find that in Washington, it was only relatively recently that you could actually sue the State, counties or cities.  It wasn’t until the 1960s that the Legislature started doing away with absolute immunity.

“In 1963, the Washington State Legislature abolished the State’s sovereign immunity for tort liability. RCW 4.92.090… In 1967, the Legislature extended this abrogation of sovereign immunity to all its political subdivisions, including cities such as Seattle. RCW 4.96.010.”  

Wilson v. Seattle, 122 Wn.2d 814 (1993).  

When states started agreeing to allowing themselves to be sued, questions came up about changes in the law.  What happens when the law changes, should the state or localities be liable when a court changes the law?  Anyone who follows law knows that judges will take the same set of facts and rule differently. This is often why cases move up to the Supreme Court, whose primary role is to settle disputes between the various Courts of Appeal.  These disputes typically arize because one federal court, such as the 9th Circuit Court of Appeals decides something differently than the rest of the country.  Is it fair or appropriate that states or localities and employees in the 9th Circuit can be held liable for complying with the law as approved for the rest of the country?  

The doctrine of Qualified Immunity acts as a defense to changes in the law.  Under QI, a government employee, whether it is a teacher, social worker, or a police officer can present a defense to a civil case that they acted in good faith and did not know that their actions violate the ever-changing state of the law.   “Qualified immunity protects an official only for those acts done in good faith.  In general, executive branch officials are afforded qualified immunity.” Musso-Escude v. Edwards, 101 Wn. App. 560, 568, (2000).

Doing away with QI makes officers liable for changes in the law that no one anticipated.  For example, if the legislature passes a statute holding that it is illegal to possess a drug, and an officer makes an arrest under that statute, but later the court strikes down the statute, is it appropriate to hold the officer can be sued for making a false arrest?  The results are absurd.  Doing away with QI can and will result in lawsuits for good people, following the law as written, but being held liable for simply doing their job.

Once a court has ruled in a case though, the doctrine of QI goes away for that issue.  After the court issues a final ruling, the law becomes “settled” in that court’s area.  This means that the government and its employees are expected to follow the courts decision.  They don’t get to ignore the opinion and argue for qualified immunity in the next case that comes along.  Why?  Because they aren’t acting in good faith.

The claimed “benefit” of doing away to QI is to hold that government and it’s employees, including teachers, social workers, firefighters and police and other government employees liable for actions that, at the time they took the actions were considered legal.  This changes the game completely.  These employees are to be expected to not only know their jobs but there are expected to know what the law is, and what changes courts in the law that the courts may order.  This is an impossible task given that so many different judges, and federal courts rule differently regarding the same set of facts.  Even among judges they often can’t agree.  As an example, look at all of the Supreme Court decisions that are decided with 5 judges on one side and 4 on the other.

What will doing away with QI do?  It will require the employees and government agencies to question every law, every decision, every act to determine if at some point, a court won’t rule against them.  This simply isn’t possible in everyday work of the government, and particularly of the police and other agencies, such as APS, CPS, and the like who have to make snap decisions out in the field to take action.

QI has long been the law in the United States.  The Washington Supreme Court has adopted and encourages the use of QI.  In Babcock v. State, 116 Wn.2d 596 (1991) the court encouraged the use of QI when social workers were sued for their decision making.  As the court pointed out “It is good policy to grant caseworkers a qualified immunity for initiation of dependency proceedings” as just one of many decisions where the court has discussed the matter.

Doing away with QI will not change the role of government.  Government will still be there, cleaning the streets, teaching students, investigating child abuse, arresting miscreants.  If these workers do not have a legal liability shield for performing their jobs in good faith, who would want that job?

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