How the States Can be Even Worse than the Feds on Qualified Immunity

How the States Can be Even Worse than the Feds on Qualified Immunity


By TJ Martinell


For decades, the federal courts have upheld the doctrine of qualified immunity, giving federal officials enormous legal protections against lawsuits from private citizens for violating their rights.


As interpreted today, a federal agent only has to “reasonably believe” their behavior was lawful under clearly established law to retain immunity.


Naturally, this broad interpretation makes it incredibly difficult to hold federal officials, specifically those in law enforcement, accountable when they engage in clear rights violations.


However, a report released this year by the Institute for Justice titled “50 Shades of Immunity” revealed that prevailing in legal action against government agents at the state level can be just as insurmountable, if not more so. Whereas, under federal jurisprudence only one doctrine protects government officials including police officers, states have many overlapping immunity laws.


The report graded states based on a variety of factors, including whether they have a civil rights statute, to what degree that statute is limited by exceptions, in addition to existing tort statutes regarding individual rights violations.


Under those criterion, only New Mexico and Michigan scored an “A,” while 27 states scored a “D.” Four states – Wyoming, South Carolina, Mississippi, and Alabama – scored an “F.” Just eight of the 50 states have passed laws allowing victims to sue officials for at least some civil rights violations.


In New Mexico’s case, the report noted that it enacted a civil rights statute in 2021. “Unlike other recent reforms, which are limited to law enforcement, the New Mexico Civil Rights Act applies to almost all state and local agencies that violate the New Mexico Bill of Rights. There is also no risk of personal liability for government employees:  Individuals may only sue the public body, not the public employees themselves, who are fully indemnified.”


In contrast, in Wyoming, the “Government Claims Act” grants immunity to all public officials except peace officers. Yet, “Wyoming courts have not given this provision broad effect.” The courts have also instituted a four-step test to see if qualified immunity applies under that law.


In practice, this means that despite the high threshold established under federal qualified immunity, it is more practical to file a lawsuit in federal court because the plaintiff only faces a single law.


That was the case with two Arkansas boys who were victims of police misconduct. However, the Institute report noted the dilemma they faced:


“When the boys sued the officer for unreasonably seizing them in violation of their rights, they had a choice to make. They could either sue for violations of the Fourth Amendment under federal law or they could sue in state court under state law. The problem is that when the boys’ lawyers looked at their options—or lack thereof— under Arkansas law, they decided to take their chances in federal court, where the officer would be entitled to the protection of qualified immunity. They chose to face one federal immunity rather than deal with the maze of Arkansas immunities. And Arkansas is hardly the worst state for civil rights plaintiffs.”


One of the studies’ authors Kendall Morton said in a press release statement that “every American deserves their day in court, but the sad truth is that for most victims of government abuse, the courthouse doors are locked. As far as life, liberty, and property are concerned, state and local officials get near absolute immunity, under both state and federal laws.”


It’s sad when victims of government misconduct feel the need to turn to the feds to hold local officials accountable. It’s also harmful to the concept of federalism. Not only are states supposed to protect their citizens from federal encroachment, but it goes contrary to the notion of the federal government having “few and defined” powers.


Further, the legal history of qualified immunity at the federal level itself is questionable. The original 1967 Supreme Court case Pierson v. Ray establishing qualified immunity relied on an interpretation of federal law that some scholars have since challenged.


The decision argued that state common law immunity applied to a federal code known as Section 1983, which itself was the codified version of the 1871 Civil Rights Act. However, the original 1871 law included a clause accidentally left out of the federal code that made it clear state immunity laws did not apply to its provisions. Further, the common law the Court relied on was as it existed in 1967, not 1871 when the law was enacted.


In 2015 a federal court of appeals decision in Browder v. City of Albuquerque found an off-duty police officer liable for killing one person and injuring another after driving recklessly on the road. Writing in support of the decision, Neil Gorsuch stated “often there’s no need to turn federal courts into common law courts . . . when we have state courts ready and willing to vindicate those same rights using a deep and rich common law that’s been battle-tested through the centuries.”


While Gorsuch’s sentiment in that opinion is in keeping with federalism and the Tenth Amendment, the reality on the ground is that private citizens will continue to seek justice in federal court as long as their states laws are an impediment. That poses a constitutional problem that goes far beyond the individual lawsuits.


TJ Martinell
TJ Martinell is an author, writer, and award-winning reporter from Washington state. His dystopian novel The Stringers depicting a neo-Prohibition Era in the city of Seattle is available on Amazon.

Visit his personal site at Join his Facebook page here. Listen to his weekly podcast on Sound Cloud.