3rd May 2025
Episode #10- Qualified Immunity - Part 1
Welcome back to Real Talk – Behind the Badge. I’m Tim, a retired police Detective Sergeant. Today, we’re going to talk about a huge, controversial subject, Qualified Immunity-Part One, and you are going to be surprised by a lot of what I am going to tell you. Part Two is going to be about states and cities that have revoked or limited qualified immunity for police officers. So, let’s get going and you can chime in at the end with your comments. We encourage everyone to leave a comment!
I’m going to start by saying QUALIFIED IMMUNITY is needed by good cops, but can also be a hindrance to justice, depending on the situation that is being judged. Let me explain. I am definitely for QUALIFIED IMMUNITY MOST of the time. Policing involves split-second decisions in high-stress situations. Qualified immunity prevents officers from being personally sued for every controversial action, which could deter them from doing their jobs effectively. Without it, the fear of litigation might lead to hesitation in critical moments, potentially endangering public safety and the life of the officer. The problem with QUALIFIED IMMUNITY is determining the INTENT of the officer and also his/her knowledge and training.
Those against QUALIFIED IMMUNITY argue qualified immunity makes it too difficult to hold officers accountable for misconduct, especially in cases of excessive force or civil rights violations. And this is also true. The "clearly established" standard is often narrowly interpreted; meaning even egregious actions may not lead to liability if no prior case law explicitly matches the scenario. But this is slowly changing.
I have been sued twice in my career as a police officer.
The first lawsuit, my partner and I had a call of a highly intoxicated woman banging on the back door of a bar that had earlier had her leave for causing problems in the bar. We found her, ask her to leave, but she wouldn’t. We placed her in protective custody. She started fighting us the minute we put hands on her. She fought us violently all the way to the cruiser. She would not get in, so we had to drag her across the seat from the opposite door. She was wearing a tube- top, which rolled down when we pulled her across the seat exposing her breasts. She was yelling and screaming at us all the way to the station, which was about 2 blocks away. When we got her to the station and the booking desk, we placed a blanket on her. I remember the Lieutenant telling us to roll her top back up. Someone did, but I knew we were in a damned if you do, damned if you don’t situation, not of our making.
We were later notified that my partner and I and the city were being sued for $50K. I never heard anything more about it until I read in the newspaper she was awarded $25K. The insurance company decided it was cheaper to settle than go to court; thus we had no say in the outcome. I was plenty pissed off about it as it made us and the department look bad when we did absolutely nothing wrong.
The second lawsuit will blow your mind as I’ve never heard of anything like it, and neither has anyone I’ve spoken to about it. They still talk about it today at the police station. Have you ever heard of a cop being sued 18 years after an action he performed on duty? I was.
I was sued and went to trial 18 years after the event happened that I was being sued for. I was The Officer in Charge of a drug enforcement unit at the time when I received information from an informant about someone selling drugs in our city from what we called a roach-coach, (a mobile food truck). As my officers and I were very busy at the time working on a case with the DEA, I gave the information to a Sergeant in a neighboring city where the individual lived. They investigated the case and it resulted in a search warrant. They called me and asked if my unit would assist on the warrant. We did and came away with large amounts of cocaine, other drugs, scales and paraphernalia. The individual was arrested, went to trial, was convicted and was sentenced to jail. Five years later he got out and applied for a new license for the roach coach in the town where he lived. The Sergeant who worked the case five years earlier is now the Chief. To get a license for a roach coach, the Chief has to certify that the person applying is “of good moral character,” which he refused to do as he knew the history of the individual.
At this point, he sued me, the Chief of his town and my city for a large amount, I don’t remember the exact amount, but it was large. He was stating in the lawsuit that the information I supplied was false, and thus the search warrant was null and void. It was thrown out of district court as the 2-year time for civil remedy had run out. He appealed it to the State Appellate Court. They affirmed the lower court. He then appealed to the Massachusetts Supreme Court who reversed the rulings stating the since the Police Chief used the information on the drug bust again when he refused the application, it was fresh and he had two years from that point to sue.
So about 16 years after the raid I was notified I was being sued in Superior Court. At the time I was retired and living in Colorado. I had two telephonic depositions I had to give from a law office in Colorado Springs. Two years later we had a trial date. Two weeks before the trial, they made an offer to my attorneys that if I would sign a letter saying the information I supplied from my informant was false, they would drop me from the lawsuit. I told my attorney to tell them, quote, “Kiss My Ass!” Whether de did or not, I don’t know.
My attorney was from the city’s insurance company and I was OK with that. I probably should have had my own attorney, but I didn’t as I couldn’t afford it.
Anyway, the insurance company paid for my flight to Massachusetts, put me up at a Sheraton hotel, paid for a rented car and paid for all my expenses. The first day in court, they picked a 12 person jury. The second day I was on the stand most of the morning. After lunch break, the judge threw the case out; it never went to the jury.
The insurance company was so happy; they dined my wife and I with an expensive dinner and also paid for all my wife’s expenses including her airfare.
Both of these cases are over 20 years old and I don’t recall anyone ever saying anything about officer Qualified Immunity. I didn’t even know anything about it at the time. Would I have been granted QUALIFIED IMMUNITY if it had been raised? I don’t know, but I doubt it in the 2nd case as they were saying I supplied false information. In the first case, if it had gone to trial, probably so.
Officers usually lose QUALIFIED IMMUNITY when they knew or should have known what they did was illegal. The "clearly established" standard is oftentimes hard to quantify. Unjustified aggression and violations of civil rights are usually the cause of officers losing their QUALIFIED IMMUNITY most of the time. The Supreme Court has also thrown in another reason in the Taylor v. Riojas (Supreme Court, 2020) where the Fifth Circuit Court initially granted qualified immunity, citing no prior case with identical facts. The Supreme Court reversed, saying the violation was so obvious that no precedent was needed.
Qualified immunity serves a purpose in shielding officers from undue harassment, but its current form often protects bad officers and frustrates justice to those who have been wronged. The "clearly established" standard is too rigid, letting some violations slide when common sense suggests accountability is warranted. We need to focus on reasonableness—seems more practical than outright abolition, but it must balance officer protection with public trust as others with qualified immunity also receive.
Let’s look at other forms of QUALIFIED IMMUNITY. Judges have immunity from anything they officially do in a court room. Ever hear of a judge being sued for over-sentencing someone or letting someone out with no bail who them kills another person? But Judges do not have absolute immunity for everything they do on the bench. They have judicial immunity, which protects them from civil lawsuits for actions taken in their official judicial capacity, as long as those actions are within their jurisdiction. This immunity is designed to ensure judges can make decisions without fear of personal liability. However, there are exceptions:
- Non-Judicial Actions: If a judge acts outside their judicial role (e.g., engaging in personal misconduct or administrative tasks), immunity may not apply. We just saw this when two judges were arrested for harboring an illegal or helping them escape the Feds.
Legislators have immunity from anything they do while performing their job. Ever hear of a legislator sued because of a law they passed caused the death of a loved one? No, they have immunity, and it’s not even qualified. In the United States, legislators have significant but not absolute immunity for actions taken in their official capacity, primarily through the Speech or Debate Clause of the U.S. Constitution. Similar protections exist for state legislators under state constitutions or statutes. Members of Congress (Senators and Representatives) are protected from civil or criminal liability for actions directly related to the legislative process.
Qualified immunity, in particular, is a legal doctrine that shields government officials from civil lawsuits for actions performed in their official duties, provided those actions do not violate "clearly established" constitutional or statutory rights. Let’s take a look at others who may have qualified immunity or other protections:
Executive Branch Officials: Federal and state officials, such as mayors, governors, or agency heads, may have qualified immunity when acting within their discretionary duties.
Teachers and School Administrators: School officials have been granted qualified immunity for disciplinary actions unless they knowingly violated students’ rights. In cases like Wood v. Strickland (1975)
Social Workers: Social workers may have qualified immunity for decisions made in child welfare cases, unless their actions were clearly unconstitutional (e.g., Anderson v. Creighton (1987)).
Prison Officials: Correctional officers and wardens often receive qualified immunity for actions taken to maintain order or safety, unless they violate clearly established rights, as seen in Hope v. Pelzer (2002).
Prosecutors: Prosecutors have absolute immunity (stronger than qualified immunity) for actions directly tied to judicial proceedings, like filing charges or presenting evidence (Imbler v. Pachtman, 1976). However, they may have only qualified immunity for investigative or administrative actions, such as giving legal advice to police (Burns v. Reed, 1991).
Public health officials, such as those working for state or federal agencies, may have qualified immunity for decisions made during public health crises (e.g., enforcing quarantines or vaccine mandates), as long as their actions don’t violate clearly established rights.
Even Some Government Contractors-In limited cases, private contractors working for the government may receive qualified immunity or similar protections. For example, in Filarsky v. Delia (2012), the Supreme Court granted qualified immunity to a private attorney hired by a city to conduct an investigation, reasoning that the attorney was performing a government function.
Court-Appointed Officials: Some court-appointed roles, like guardians ad litem or public defenders, may have qualified or absolute immunity depending on their function:
Licensing Board Members: Members of professional licensing boards (e.g., medical or bar associations) may have qualified immunity for disciplinary actions taken in their official capacity, as these are often considered quasi-judicial functions.
Administrative Law Judges and Hearing Officers: Individuals conducting administrative hearings (e.g., in Social Security or immigration cases) often have absolute quasi-judicial immunity for actions within their adjudicative roles, similar to judges (Butz v. Economou, 1978).
Parole and Probation Officers: These officials may have qualified immunity for discretionary decisions, like recommending parole denial, but could face liability for clear violations of rights (Swift v. California, 9th Cir. 2004).
So in looking back at our 9th podcast of the Lake Ozark Detainment, it’s hard for me to say if all of the officers involved should have qualified immunity as I don’t know the extent of their training. If they had been trained in 1st & 4th amendment rights, they should have known they can’t detain or arrest someone because they didn’t leave a public sidewalk upon their demand. They also appear to be ignorant on identification laws. They didn’t have any probable cause or reasonable suspicion of any crime to demand identification. They didn’t have any reasonable suspicion that the citizen was armed or possible dangerous to search him.
If they had training on these issues, I’d have to say they would probably lose their immunity as the offenses were so blatant and a disregard for constitutional rights that the average officer would not have done what they did.
If they did not have training on these issues, I’d have to say the department and city was liable.
In closing, one of the things I struggle with is the question of at what point does a citizen whose constitutional rights have been violated have a right to compensation, and how much. Do minor violations constitute compensation? How would you rate the following?
- Illegal detention w/o cuffing?
- Illegal detention w/ cuffing?
- unlawful orders to leave public property
- unlawful demand for identification
- unlawful pat-down of a citizen without any suspicion of being armed.
- unlawful search of a citizen without any suspicion of being armed.
- unlawful taking of a phone/camera from a citizen
- traffic stop w/ no violations
The one thing police officers are hired to do is to enforce the law. But what if they don’t know the law? Whose fault is that? The officer? The Chief? The city or county? Citizens can’t go into court and plead they didn’t know the law, can police?
In closing, I ask this simple question… why are police officers always the target of people wanting to deny qualified immunity. To me, the answer is simple… cameras everywhere and a law that allows citizens to record police actions anywhere in public.
Do you ever wonder why judges don’t allow cameras in their courtrooms?
Do you ever wonder why schools and colleges don’t place cameras in classrooms?
Do you ever wonder why mayors, governors, social workers, prosecutors, etc. don’t have cameras in their offices?
Now you know why.
I fully condemn the states that have taken away or are thinking about taking away police officers QUALIFIED IMMUNITY. The one person they don’t think twice about sending into dangerous situations they want to make civilly liable for any mistakes. I suggest they take away their own QUALIFIED IMMUNITY first and see how they respond. This is outrageous!