Bench Memos

Law & the Courts

The Surprising Genesis of Qualified Immunity for Police Officers

I was surprised to learn that the rule that police officers enjoy so-called qualified immunity from damages suits brought under federal civil rights law (42 U.S.C. § 1983) was established by a unanimous* opinion written by the very liberal Chief Justice Earl Warren in Pierson v. Ray in 1967 in a case involving civil-rights abuses in the Deep South.

The case arose from an incident in 1961 in Jackson, Mississippi, in which members of a group of 15 white and African-American clergymen attempted to use a “White Only” waiting room in a bus terminal. City police arrested the clergymen and charged them with conduct breaching the peace. All 15 clergymen were convicted and given the maximum sentence of four months in jail and a fine of $200, but the charges were dropped on appeal. (In 1965, the Court ruled that the statute under which the clergymen was convicted was unconstitutional.)

Some of the clergymen sued the individual police officers for damages under section 1983 and under common law. One of the questions the Court faced in Pierson was whether the police officers could assert a defense of good faith and probable cause (on the contested proposition that they acted to prevent imminent violence). The Court held that they could. It first ruled that that defense was available under common law:

The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is, rather, that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country, a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Restatement, Second, Torts § 121 (1965); 1 Harper & James, The Law of Torts § 3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co. of Maryland, 179 F.2d 327 (C.A. 8th Cir. 1950). A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid, but that was later held unconstitutional, on its face or as applied. [Underlining added.]

The Court then held that the same defense of qualified immunity should apply under section 1983. It set forth its reasoning in two sentences:

As we [said in Monroe v. Pape (1961)], § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.

Thus, “if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was, in fact, unconstitutional.” (Emphasis added.)

As, alas, is all too common for Warren Court opinions—especially in the field of criminal law—these breezy assertions don’t have much persuasive force. Law professor Will Baude argues (in “Is Qualified Immunity Unlawful?”) that the Court’s claim regarding a background common-law immunity “does not withstand historical scrutiny.” The sentence I’ve underlined also seems to ignore a basic economic reality: If police officers are going to face liability for damages, a city that wants to hire and retain them is going to have to commit to indemnify them or to find some other way to compensate them for the risk (e.g., higher pay sufficient to cover liability insurance), at least for instances in which the officers haven’t engaged in flagrant misconduct.

I wonder whether some of Warren’s concern for the plight of police officers reflected his recognition that his Court was changing the constitutional rules so quickly and unpredictably that police officers couldn’t possibly anticipate the rules that would be applied retroactively to their conduct. As Warren’s opinion states, “We agree that a police officer is not charged with predicting the future course of constitutional law.”

* Justice Douglas dissented from the Court’s separate holding that judges are entitled to absolute immunity.

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