On June 10, the International Association of Chiefs of Police (IACP) issued a statement “fervently oppos[ing]” efforts to eliminate qualified immunity, the judicial doctrine that shields officers from liability—even if they have violated someone’s constitutional rights—unless a court has previously held that almost identical actions under almost identical circumstances were unconstitutional. The crux of the IACP’s position—and the position of others who defend qualified immunity, including President Trump and Senator Tim Scott (R-SC)—is that eliminating qualified immunity will have a “profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.”
They are wrong. Eliminating qualified immunity should not affect police decision-making in this manner, and insisting that it will does a disservice to police professionalism.
The “chilling” argument overstates the impact that civil liability currently has on officer behavior, and would have were qualified immunity eliminated. Officers almost never contribute anything to settlements and judgments entered against them—instead, cities and counties pick up the tab as a matter of state law or local policy. There is no reason to believe these indemnification agreements would change were qualified immunity abolished.
More importantly, though, this misleading defense of qualified immunity relies on false claims about the types of conduct that qualified immunity protects. The IACP contends that qualified immunity is “an essential part of policing” because it “allows police officers to respond to incidents without pause” and “make split-second decisions.” And they claim that, without qualified immunity, officers would not be shielded from liability when taking “good faith actions” that turn out to be unconstitutional.
But the U.S. Supreme Court’s decisions that define the constitutionality of stops, searches, arrests, and force already recognize that officers have to make split-second decisions, and already shield officers for reasonable actions, regardless of the officer’s subjective motivations. The constitutional standards developed by the Supreme Court that apply most directly to the police—the Fourth Amendment rules that govern stops, frisks, searches, arrests, and force—have been very intentionally designed to avoid “impair[ing]” or “hamper[ing]” or “imped[ing]” effective law enforcement. Those rules are built around the notion that officers comply with the Constitution so long as they act reasonably. And the Court has adopted a deferential approach to determining whether officers acted reasonably, reminding lower courts to keep in mind that the operational environment in which officers act can be “uncertain,” “stressful,” “dangerous[,] and difficult.”
Contrary to the assertion that the protections of qualified immunity are all that allow officers to act decisively in quickly evolving scenarios, the Supreme Court has made clear that the reasonableness of officers’ actions must be judged in the context of the high-stress, high-speed circumstances in which they do their jobs. In fact, the Supreme Court’s decision setting out the constitutional standards for uses of force explicitly instructs courts that “the ‘reasonableness’ of a particular use of force . . . must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
The Supreme Court’s constitutional standards make ample allowance for officers to make reasonable mistakes. When assessing the constitutionality of a stop, the Supreme Court has said that officers must act reasonably, but, “[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection.’” For that reason, officers can constitutionally stop or frisk someone when they have “reasonable suspicion,” and that that low bar is met so long as there is a “moderate chance” that the officer’s suspicion is correct. An officer can get a warrant or arrest someone when they have “probable cause,” which requires only a “fair probability” that they are right.
In short, officers have plenty of leeway to make mistakes without violating the Constitution. For example, courts have held that officers act constitutionally when:
- officers arrest the wrong person, so long as their mistake was reasonable;
- officers execute a search warrant on the wrong apartment, so long as the apartment numbers were similar;
- officers pull someone over for having an air freshener attached to their rearview mirror and not having a front license plate—neither of which was illegal—so long as the officer had a reasonable but mistaken understanding of the law
Qualified immunity does not protect officers who make reasonable mistakes because reasonable mistakes do not violate the Fourth Amendment in the first place. Instead, qualified immunity shields government officials from liability when they have acted unreasonably (taking into account the deference that the Supreme Court has built into that term)—so long as there isn’t another court decision holding virtually identical facts to be unconstitutional.
Insisting that officers are so afraid of the consequences for their unreasonable actions that they will refuse to do their job demeans officers instead of treating them as the professionals that the IACP insists they are. Worse, it protects folks who shouldn’t be officers in the first place.