The Four Myths About Qualified Immunity; What Cops Need to Know

Jul 11, 2022 | Knowledge

What is Qualified Immunity?

Qualified immunity is a judicial doctrine that protects state actors from liability in certain instances. Qualified immunity was created by several U.S. Supreme Court cases, most significantly Harlow v. Fitzgerald, Saucier v. Katz, and Pearson v. Callahan. Qualified immunity protects government officials from being held personally liable under federal law for conduct that did not violate a “clearly established” law. For example, let’s assume there is a use of force incident and a correctional officer is sued for violating an inmate’s civil rights. The court could conclude that the officer’s conduct violated the Fourth Amendment, but because the plaintiff could not cite previous cases where similar enough conduct was found to be a constitutional violation (i.e., the law was not “clearly established”), the case against that officer would be dismissed.  

Myth-Busting Qualified Immunity

Qualified immunity has recently become a hot topic, not only in California but around the country. The protests over the summer of 2020 regarding police reform caused the doctrine of qualified immunity to be put under intense scrutiny. The scrutiny is intensified by several misconceptions about qualified immunity that have led some states, including California, to consider passing laws to abolish or severely limit qualified immunity, especially as it relates to law enforcement.

“Thus, a better understanding of what qualified immunity really is will assist advocacy efforts to preserve some form of qualified immunity. An understanding of what qualified immunity is and is not should provide comfort to any who thinks that the doctrine’s loss will be devastating to law enforcement.”

– Brandi Harper, Castillo Harper Partner

For those calling for police reform after the social unrest during the summer of 2020, qualified immunity became a popular target. We have since seen various states begin the process of eliminating qualified immunity. Additionally, there are some who believe that recent cases suggest the United States Supreme Court may limit qualified immunity in the future. Qualified immunity no doubt offers a layer of protection against potentially devastating civil liability for law enforcement officers, but change may well be coming. 

Myth #1 – Qualified Immunity Prevents Law Enforcement From Being Criminally Prosecuted

Qualified immunity only exists within the civil realm. The granting or denial of qualified immunity has no impact on an individual’s ability to be prosecuted. Qualified immunity is basically a type of affirmative defense that protects individuals from being monetarily liable for civil claims made against them in the scope and course of their duty.

Myth #2 – Qualified Immunity Is Guaranteed Protection for All Law Enforcement Individuals and Is Always Granted

Qualified immunity is not automatic. Even if a law enforcement defendant raises qualified immunity as an affirmative defense, there is no guarantee that it will be granted. In every case, the decision as to whether qualified immunity is granted is within the discretion of the judge. Qualified immunity is generally raised prior to trial through a motion to the court.

Although many say it is nearly impossible to successfully sue police officers because of qualified immunity, this is not the case. One study from UCLA’s School of Law Professor Joanna Schwartz and another by Reuters Investigates show that qualified immunity is not always granted or rarely granted in full. In the Schwartz study, the courts denied motions for summary judgment, thus rejecting the qualified immunity defense, approximately 32% of the time.

Additionally, courts only granted qualified immunity defenses in full 12% of the time. However, this does not account for the plaintiff (or more accurately, their attorneys) who may be dissuaded from bringing certain cases against law enforcement officers because of qualified immunity when the particular facts are not closely analogous to a previous decision finding a constitutional violation. 

Myth #3 – Qualified Immunity Applies to All Civil Cases

Qualified immunity only applies to federal cases brought pursuant to Section 1983. These are federal cases that generally encompass claims of excessive force, although they can also include other claims such as First Amendment claims. Qualified immunity does not apply to state law claims often brought with federal civil rights claims like battery, false imprisonment, or Bane Act violations.

Myth #4 – Abolishing Qualified Immunity Will Mean Paying a Judgment in a Civil Case for Actions Taken at Work

This is not necessarily true. Even under the current state of the law, state employees are found liable for actions taken in the course and scope of their duties. Under most circumstances, where the actions were not knowingly unlawful, a public entity will indemnify the officer.  


In conclusion, judicial doctrines change over time. Qualified immunity itself has changed over time. Qualified immunity, even as it stands now, is not guaranteed. Individuals should consult with trusted attorneys and estate planning experts to explore their options for protecting their assets.


  • Brandi Harper

    Brandi Harper is a managing partner at the Castillo Harper Law Firm in Southern California. The firm focuses on representing first responders in administrative, criminal, civil, and family law matters.