Qualified Immunity of the Police

After a series of high-profile police killings, many Americans asked why it is so hard to hold officers accountable, even when the conduct is caught on video. A large part of the answer lies in a court-made doctrine most people had never heard of: qualified immunity. How does it work, where did it come from, and should it change?

In this TalksOnLaw interview, guest host Ingrid Bilowich-von Ahn sits down with Professor Fred Smith, Jr., now of Stanford Law School, a scholar of federal courts and constitutional remedies and a former law clerk to Justice Sonia Sotomayor, to explain qualified immunity, the criticism it draws from across the ideological spectrum, and what real accountability for government misconduct might look like. Bilowich-von Ahn, a lawyer and women's rights advocate, went on to serve as an Assistant District Attorney in Brooklyn and is now co-founder and executive director of the ILVA Foundation.

What Qualified Immunity Is

When someone sues a government official, such as a police officer, for damages for violating the Constitution, the official is immune unless the plaintiff shows that the official violated "clearly established law" that a reasonable person would have known at the time. Smith explains that the standard has become increasingly hard to meet because courts often define "clearly established" narrowly. The general rule that police may not use unreasonable deadly force is not enough by itself. The law is judged objectively at the moment of the incident: if the controlling decision came down at 2:15 p.m., it is clearly established for conduct at 2:16 p.m.

Three Ways to Show Clearly Established Law

Smith describes three routes. The most common is a prior case with closely similar facts. The second is a legal rule so obviously violated that the facts need not match. In Hope v. Pelzer, Alabama prison guards chained prisoners to a "hitching post" in the hot sun, and although no earlier case involved hitching posts, the Supreme Court held that the cruelty was obviously unconstitutional. The third, and rarest, is unmistakable constitutional text, as in Groh v. Ramirez, where a warrant lacked what the Fourth Amendment expressly requires.

A Judge-Made Balance

The doctrine grew from a real concern: fear of lawsuits could deter officials, including police officers facing real dangers, from doing their jobs. In Harlow v. Fitzgerald, the Supreme Court openly created the modern standard to balance deterring unlawful conduct against deterring lawful conduct. Smith argues that the balance rests on faulty premises. Research by UCLA professor Joanna Schwartz shows that officers almost never pay judgments themselves, because their employers indemnify them. Officers still care about being sued, for reasons such as reputation and credit, but those concerns can be addressed directly. Nothing in the Constitution's text, the text of the governing civil rights statute, or history requires the doctrine. That is why justices as different as Clarence Thomas, on originalist grounds, and Sonia Sotomayor, on accountability grounds, have both criticized it.

What Accountability Means

Smith urges a focus not on any one immunity doctrine but on accountability itself, which he breaks into three functions. The first is declaratory: an official body saying that what happened was wrong. The second is compensatory: restoring the injured person to where they would have been. The third is corrective: preventing it from happening again. His proposal, drawn from his Columbia Law Review article "Local Sovereign Immunity," is that when immunities prevent holding any individual accountable for a constitutional violation, the injured person should be able to sue the local government that employs the officer. That, he says, balances accountability with the legitimate concerns of public budgets and effective government.

Legitimacy and Legal Estrangement

Accountability matters beyond the individual case, Smith explains. Procedural fairness builds trust and willingness to comply with law. Drawing on Yale professor Monica Bell's work on "legal estrangement," he warns that many Americans no longer see themselves as part of the constitutional project at all. He recalls Michael Brown's body left in the street in Ferguson for four hours, and a young woman's words: "They shot him, and then they did this to send a message that this could be you." That, he says, is not even the language of second-class citizenship, and for a republic, it is "a really big deal."

Why Criminal Accountability Is Rare

Criminal prosecution is also difficult, as it should be, Smith notes. But video has made the gap visible. The public saw Eric Garner say "I can't breathe," and there was no indictment. It saw Rodney King beaten. It saw an officer in South Carolina appear to plant a Taser near Walter Scott's body, yet the state trial ended in a mistrial, and a conviction came only in federal court. Prosecutors' relationships with police, grand jury practice, and jurors' reluctance all play a role.

A Moment of Convergence

Because qualified immunity is judge-made, Smith argues, it is "up for grabs" at a time when many judges and scholars favor text and history. People on the right who value formalism and people on the left who value accountability have reasons to revisit it. Legal change often comes from such convergence, he notes. The modern doctrine itself emerged that way. He is hopeful that it can be reoriented around text, history, and accountability.

What to Know Now

The debate intensified dramatically after the murder of George Floyd in 2020. The Supreme Court declined that year to take up a group of petitions asking it to reconsider qualified immunity, over Justice Thomas's dissent, and it has continued to apply the doctrine. It has granted immunity in several summary reversals, most recently in Zorn v. Linton (2026), over a dissent by Justices Sotomayor, Kagan, and Jackson, while occasionally denying it in obvious cases, such as Taylor v. Riojas (2020), a prison-conditions case in the spirit of Hope. In Barnes v. Felix (2025), the Court unanimously rejected the "moment of threat" approach to excessive force claims and required courts to consider the totality of the circumstances. Other decisions have narrowed related avenues of relief, including damages claims against federal officers and claims based on Miranda violations. Congress has considered ending qualified immunity for police, most prominently in the George Floyd Justice in Policing Act, but has not enacted it.

Reform has come mainly from states and cities. Colorado, New Mexico, and New York City created state or local rights of action for police misconduct without a qualified immunity defense, and other states adopted narrower changes. The scholarly debate Smith described has also deepened. Critics point to Schwartz's evidence that officers are almost always indemnified, and to historical research questioning the doctrine's foundations. Defenders argue that it protects officers who make split-second decisions, prevents excessive litigation, and should be changed only by Congress. Supporters of reform also point to other accountability tools, from body cameras to federal pattern-or-practice investigations, though in 2025 the Justice Department abandoned proposed consent decrees for the Minneapolis and Louisville police departments, and courts dismissed both cases. Smith's question of how the law can provide declaration, compensation, and correction when rights are violated remains at the center of the debate.