Qualified Immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations—like the right to be free from excessive police force—for money damages under federal law so long as the officials did not violate “clearly established” law. Both 42 U.S.C. § 1983—a statute originally passed to assist the government in combating Ku Klux Klan violence in the South after the Civil War—and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) allow individuals to sue government officials for money damages when they violate their constitutional rights. Section 1983 applies to state officials, while Bivens applies to federal officials. Because damages are often the only available remedy after a constitutional violation has occurred, suits for damages can be a crucial means of vindicating constitutional rights.

When government officials are sued for civil damages, qualified immunity functions as an affirmative defense barring damages even if they committed unlawful acts. This follows Pierson v. Ray (1967), the Supreme Court case that establishes a form of sovereign immunity for government officials. This makes it difficult, if not impossible, to secure damages against law enforcement in instances where constitutional rights are violated, and where criminal charges are not forthcoming (often due to existing relationships between the District Attorneys responsible for filing criminal charges, and the peace officers that would be charged). The right to sue government officials in instances of civil rights violations, as allowed in both §1983 and Bevins, is all too often short-circuited by claims of qualified immunity, even in instances of egregious harm.

It is critical that every citizen be aware and understand your rights when interacting with law enforcement. This helps ensure the best possible outcome, for all parties, in tense or otherwise volatile situations. The following resources provide crucial details and information on this topic:

Constitutional Protections and Best Practices for Engaging with Law Enforcement

Student Rights and Protections on College Campuses

Filing a Police Complaint or Reporting Police Brutality

Common Lawsuits and Defenses Brought Against Local Government and Public Officials

George Floyd Act - Texas Black Caucus
[To Be Submitted January 2021]

H.R. 7120 - George Floyd Justice in Policing Act of 2020
[Passed by 116th US House of Representatives]

S.4142 - Ending Qualified Immunity Act
[Introduced to US Senate by Senator Markey]

H.R. 7085 - Ending Qualified Immunity Act
[Submitted to 116th US Congress]

Virginia House Bill No. 5013
[Passed by Virginia House of Representatives]

Colorado Senate Bill 20-217

[Passed into Law by Colorado Legislature]

Civil Action for Deprivation of Rights
42 U.S. Code § 1983
Federal statute derived from Enforcement Act of 1871, also known as the Ku Klux Klan Act.

Pierson v. Ray, 386 U.S. 547 (1967)
Ruling setting precedent for Qualified Immunity as an affirmative defense against civil proceedings.

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