Police Involvement in the Black Lives Matter Movement: The Need for Selective Allowance (Part-II)

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§ 1983, Qualified Immunity and Black Lives [Cont.]

Section 1983 of the U.S. Code reads as:

“Every person who……subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity”

Although on its face the section creates a standard of strict liability for police and other public officials, including the right to be free from the unreasonable use of force, qualified immunity was born as a result of judicial policymaking and continued only due to the judicial intent of expanding its scope since its inception in 1967, shaping the provision as not merely a defence to liability but also providing immunity from a suit in its entirety.[1]

Origin, Development and the Threshold for Qualification

The origin of qualified immunity can be traced back to the US Supreme Court’s 1967 holding in Pierson v. Ray[2] when the Court exempted police officers from liability in a false arrest case because they were held to have acted in good faith and with probable cause. Since then, the doctrine (at various instances) has helped in dismissing many genuine claims of the plaintiffs, sometimes resulting into dismissal of the claim in the form of summary disposal as well.

However, the worrying point in application of the immunity has always been the subjectivity of the tests employed, the threshold for which has undergone many changes since the judgement in Pierson. In 1975, when the development of the doctrine was still in its infancy, the Court in Wood v Strickland [‘Wood’] formulated a two-prong test to determine qualified immunity for public officials (the judgement in woods was concerned with expelling of students from schools), which included both an objective reasonableness factor and a subjective factor that took an official’s malice into account.[3] However, in 1982, the Court in Harlow v Fitzgerald eliminated the subjective element.[4]

The most recent shift in the application of doctrine came in 2001 through Saucier v. Katz when the court propounded a sequential two-step test to decide qualified immunity claims for officers.[5] Firstly, a court must decide whether there was an infringement of a constitutional right by the most favourable interpretation of the facts to the plaintiff. Then, on analysis, if such infringement is proved, the court must determine if that right was “clearly established” law. Whether the officer’s acts violated a constitutional right was thus mandated as the threshold inquiry in all qualified immunity cases.

Eight years later, in Pearson v Callahan, the Supreme Court rolled back the strict sequential order stating that although Saucier’s procedures are appropriate, they are not mandatory.[6] The Supreme Court continued to build upon its newly forged doctrine of qualified immunity by adding another component to the analysis of police use of force through prominent decisions in the late 1980s[7] which generally stressed upon the objective reasonable test i.e. the test in Wood under which if a plaintiff can clear the first major hurdle of Section 1983 by proving that an officer is not entitled to qualified immunity, the next hurdle is proving that the officer’s use of force was objectively unreasonable.’ A lack of clarity, in what constitutes a reasonable or unreasonable use of force[8], has made the application of the doctrine very subjective, majorly depending on the composition of the bench.

Exploring Better Approaches on “Qualified Immunity”

As per a significant analysis on the doctrine, formulating the proper standard for qualified immunity presents several fundamental questions which necessitate appropriate balancing among several competing interests: (1) compensation for persons whose rights are violated; (2) deterrence of unconstitutional actions by government officials; (3) vindication of constitutional rights; (4) protection of government officials from frivolous suits and liability when they have acted in good faith and in accordance with established standards; and (5) vigorous and effective enforcement of legal and government policies.[9] Such reforms may take place either through legislative intent or judicial intervention.

Many sitting judges, the most prominent being Justice Sonia Sotomayer (famous for his dissent in Mullenix[10]) have previously expressed concern over application of the doctrine, either concurring or dissenting on issues of qualified immunity, thereby altering the doctrine of qualified immunity.[11] Allowing § 1983 plaintiffs to use an officer’s malice to defeat qualified immunity claims is not an unreasonable retraction, and something the Court can amend.[12] Further, as qualified immunity is a common law doctrine, the Court is in the best position to amend it especially since other branches of government have proved unreliable at effecting positive change.[13]

The analysis of the judgements on qualified immunity has shown, which Justice Sotomayer also states that the court ‘willingly’ reverses lower court orders, when they refuse to grant qualified immunity to police officers. In a contrasting statement, she wrote, the court ‘rarely intervenes’ when lower courts wrongly grant qualified immunity to police officers. This ‘one-sided approach’ transforms the doctrine into ‘an absolute shield for officers’.

It is worth mentioning that the US Supreme Court has essentially reversed almost all lower court cases where the court denied qualified immunity for police officers, stressing the importance of qualified immunity to all of society.[14] Qualified immunity as a doctrine has been defended as a necessity to ensure that suitable officials are not dissuaded from public service due to fear of potential lawsuits.[15] The recent initiatives on scrapping down the law have been really pressing, more than ever with better probability of the Hon’ble Supreme Court changing the status quo filled with legal and moral perversities.

Coming to the present analysis of the George Floyd case, it can be stated that it is going to be really hard to claim remedy against officer Derek Chauvin and other involved officers with the qualified immunity law in place. As the law warrants the plaintiff(s) to find an exact case which dealt with the same issue on the basis of identical factual matrix, “clearly established” norm on Section 1983 would make it difficult for the prosecution to identify a relevant case in the same jurisdiction. Thus, if Mr. Floyd’s family wants to sue police officer Derek Chauvin, they will have to find a case law from the Eighth U.S. Circuit Court of Appeals which stipulates that a police officer may not kneel on a unresisting suspect’s neck, ignoring his pleas for help, until he passes out. What if there is no such case in the law reports? – If that happens, Floyd’s case will be summarily tossed out of court, at the first instance.

Concluding Remarks

On similar lines, as Marcus R Nemeth rightly points out in his Boston Law Review writeup, “in its current form of the qualified immunity doctrine, an irrational fear of a black man can be weaponized into an excuse for murdering an innocent citizen”.[16] The need of the hour is selective allowance of police officers to take part in these protests through the protocol mentioned, which defines not only the extent of involvement and the role in the involvement of police officers wishing to participate, but also the extent of reaction to certain levels of community protests.

In addition to this, there needs to exist a transparent mechanism of dispute resolution for interpersonal disputes that arise in furtherance of prevailing protests, which are of the nature of community outrages. A step towards the same is marked by scrapping off the absolute immunity granted to police officers for any action that is taken while exercising law and order, and introduction of criminal liability for acting beyond the prescribed threshold in the protocol discussed in the article. With the same being done, we believe that the problems that many police officers face, due to obstruction in taking part in protests of this nature, which impedes personal interests and the basic freedom of expression might just get solved.




  1. Mitchell v Forsyth 472 US 511, 526 (1985).

  2. Pierson v Ray 386 US 547, 554 (1967).

  3. Wood v Strickland 420 US 308, 322 (1975).

  4. Harlow v Fitzgerald 457 US 800, 806 (1982).

  5. Saucier v Katz 553 US 194, 201 (2001).

  6. Pearson v Callahan 555 US 223, 231 (2009).

  7. Graham v Connor (Graham III) 490 US 386, 388 (1989) [‘Graham’].

  8. Graham at 388; Rachel A Harmon, ‘When Is Police Violence Justified?’ (2008) 102 NW U L Rev 1119, 1123.

  9. David Rudovsky, ‘The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights’ (Penn Law 1989) <https://scholarship.law.upenn.edu/faculty_scholarship/1507> accessed 13 June 2020.

  10. Mullenix v Luna (Mullenix IV) 136 S Ct 305, 308 (2015) [‘Mullenix IV’].

  11. District of Columbia v Websy 138 S Ct 577, 582 (2018) (Ginsburg J, concurring); Ziglar v Abassi 137 S. Ct. 1843, 1871 (2017) (Thomas J, concurring); Mullenix IV (Sotomayor J, dissenting); Wyatt v Cole 504 US 158, 169-75 (1992) (Kennedy J, concurring); A M v Holmes 830 F 3d 1123 (10th Cir 2016) (Gorsuch J, dissenting).

  12. Saucier v Katz 533 US 194, 210 (2001).

  13. Christian Sheckler & Ken Armstrong, ‘Who Will Now Police the Police?’ (NY Times 2 Dec 2018) <https://www.nytimes.com/2018/12/01/sunday-review/trump-sessions-police-reform.html> accessed 12 June 2020.

  14. William Baude, ‘Is Qualified Immunity Unlawful?’ (2018) 106 Cal L Rev 45, 82.

  15. Wood v Strickland 420 US 308, 319-20.

  16. Marcus R Nemeth, ‘How Was That Reasonable: The Misguided Development of Qualified Immunity and Excessive Force by Law Enforcement Officers’ (2019) 60 BC L Rev 989.


Cite as: Tejas Hinder and Ravi Shankar Pandey, ‘Police Involvement in the Black Lives Matter Movement: The Need for Selective Allowance (Part-II)’ (The Contemporary Law Forum, 16 June 2020) <https://tclf.in/2020/06/16/police-involvement-in-the-black-lives-matter-movement:-the-need-for-selective-allowance-(part-ii)> date of access. 

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