The tangled web of “qualified immunity” laws


I note that New Mexico has abolished “qualified immunity” under state law.  Police and other state officials are now liable for mistakes, errors and misconduct committed while on duty.  It’s aroused a storm of criticism, not just from law enforcement, but also from other first responders, who believe they can no longer exercise professional judgment without running the risk of being sued by anyone who didn’t like the way they did that.  For example, a representative of one New Mexico volunteer firefighting district writes:

What if you called 911 and no one answered? That will start to happen very soon in rural New Mexico.

Volunteer fire and EMS (Emergency Services) departments are the one place where political parties, religious differences, and racial and age biases all disappear. We are family, and we need and depend on each other for the good of our communities. Gov. Michelle Lujan Grisham signed H.B. 4, the “Civil Rights Act” into law this week. It has the potential to shut us down and close our doors. Qualified immunity is not just a bad cop issue; it is a huge issue in so many other areas. In the fire service, fire officers make huge decisions almost daily that affect human life, safety, and due process based on the deprivation of life and property, secured rights in the New Mexico Bill of Rights.

Our training helps, but the rapid, explosive, and unpredictable nature of fire and having only the information available at that time make these decisions difficult. On wildfires, firefighters often have to write off homes and other structures for the greater good at that time. Some homes are defendable, and some are not. Sometimes we may make the right decision and know it is the responsible thing to do, yet you may not feel that way if it is your home. Qualified immunity prevents frivolous, groundless, and costly lawsuits against public servants.

. . .

We have used the qualified immunity defense on numerous occasions. Without qualified immunity, we can see a huge exodus of our volunteer firefighters, especially our invaluable, most knowledgeable fire officers … We have consulted five attorneys regarding the result of losing qualified immunity for our volunteer firefighters. Two attorneys told us that the entity we represent could come back on the individual to recoup their losses. Who would risk all they have and all they have volunteered to be sued by someone who thinks they have been wronged and denied their rights or privileges?

. . .

The same goes for our volunteer EMTs.  59.1% of all of the EMTs in New Mexico are volunteers. We are sued on occasion and are saved from sue-happy citizens by qualified immunity. We have alleged HIPAA violations. We have triage situations and have to make the best decisions we can as to who we can save and who we cannot. We also legally have to stay with a patient until we can hand them off to someone of equal or higher medical qualifications. Often, it makes us look uncaring when we are only doing our job. Believe us, we care.

Often, we are asked to “stage” before going into a scene because of the danger involved. This leads to a delay in medical attention and opens EMTs to lawsuits. Again, without qualified immunity, we think there will be a mass exodus of these volunteer EMTs who will fear and most likely face civil suits if QI is lost. None of us can afford the legal fees of a civil suit, even if we are found not guilty. None of us can afford to repay the entity we serve if they come after us personally for all or part of the damages they had to pay, as one attorney advised could happen.

There’s more at the link.

On the other hand, there have undoubtedly been abuses perpetrated by individuals and agencies that have been successfully defended under the doctrine of qualified immunity.  Examples are legion;  see, for example, those linked in this article.  Anyone in his right mind will support removing that protection from such egregious cases.  However, if doing so will put at risk other officers and agencies who are acting in good faith, that’s a big problem.

There’s also the discrepancy between state and federal law.  As New Republic points out:

Qualified immunity is a judicial doctrine that applies in federal courts when interpreting Section 1983, which is part of a federal law. State lawmakers … can no more tell federal judges how to interpret Section 1983 than they can tell the Vatican how to read the catechism.

Again, more at the link.

That discrepancy between state and federal law is likely to prove a major bone of contention.  Individuals and agencies being sued under state law may well seek to have the case moved to a federal court on even the flimsiest of grounds.  On the other hand, plaintiffs who believe they might “get a better deal” under state law may try to remove a case from federal court and transfer it to a state court system.  I think lawyers are going to make a lot of money arguing over such nuances.

I certainly agree that qualified immunity laws need to be reformed, at both state and federal level.  The existing laws seem to me to be too broad, and protect conduct that would otherwise be classed as unlawful, injudicious or even criminal.  On the other hand, I agree that first responders – law enforcement, fire, EMS and others – do need some protection against frivolous lawsuits, or those brought by victims who disagree with the choices made by first responders in the heat of the moment.

I don’t think there’s any easy, universally applicable answer.  Every case is different, and requires the best judgment of all concerned.  A law is necessarily a “one-size-fits-all” approach – and we already know that doesn’t work.  As the proverb reminds us, circumstances alter cases, and no law can take all the circumstances into account.



  1. Nope. Medical and nursing staff don't have the luxury of qualified immunity, so what makes fire/EMS/police so special?? We're forced to treat assholes who threaten us and threaten to sue and take everything we own, sometimes on a nightly basis. Refusing to take the patient isn't an option. Yet we go in to work anyway. EMS can just deal with it, same as everybody else.
    Jennifer, ER nurse

  2. Colorado abolished qualified immunity last year and things haven't fallen apart yet.

    Police need more legal protections than average citizens because they're making decisions in the middle of dangerous situations. The problem with qualified immunity is, for example, police have received qualified immunity after stealing from a suspect because no court had specifically ruled that police can't steal from those they arrest. Prison guards have beaten prisoners (without provocation) and had qualified immunity because a court hadn't ruled that prison guards can't beat prisoners.

    It's abuses of this sort which have caused the push against qualified immunity.

    Worse is absolute prosecutorial immunity. Prosecutors have been found to have knowingly fabricated evidence and courts have ruled they can't be held responsible due to absolute immunity.

    1. He makes sense too. I think from reading all this that it was a good decision, not a bad one to get rid of Absolute Immunity. Perhaps we should take it away from big Pharma too. It might means less drugs get created, but that would probably be good too,….there are way too many drugs and no consequences for the companies that come up with them. And it might make them a lot more cautious putting out drugs and Vaccines that they don't really know the efficacy of!

  3. immunity (as in nobody can be held liable) is too broad, but when someone is working within their training they need to be defended by the org they are working for.

    Now, this falls apart when you get to voluneer orgs that are self funded. They don't have the deep pockets to defend lawsuits, so something needs to be figured out.

    @Jennifer, if someone sues you, you aren't hung out to dry and have to completely fund your own defense. The hospital has a legal team that helps to defend you. That's what these volunteer orgs need.

  4. @unknown, Actually, no. As soon as there's an issue, the hospital just cuts loose the staff in question, leaving them to deal on their own. It saves the hospital money, apparently. And, if you have liability insurance, it is expensive, and tells the lawyers you're a juicy target with deep pockets. My solution is a 20 year old minivan and no assets in my name. A lot of our docs keep assets in spouse's name for just that reason. It sucks, but imagine if all medical personnel and companies had the cops' immunity: it'd be just like, well…the vaccine companies…

    1. @Jen

      Didn't the guy in Mr Grant's post mention "volunteers" specifically?

      Your argument may hold for people who get paid to do jobs where they might get sued, but it's completely bogus for people who volunteer to risk their lives, without pay, because they want to help the people in their community.

      Qualified immunity is extremely dangerous, and frequently abused, in despicable ways, but your answer is far too simplistic.

  5. Qualified immunity for prosecutors sure has to be reformed too. Witholding exculpatory evidence from the defense in a capital case, to my mind, is tantamount to planning and attempting murder.
    Also, search "dry labbing". Houston PD, in Texas, made the term popular not too many years ago.

    1. Prosecutorial misconduct should be punished with the most severe sentence they sought in the case in which they committed the crime.

      If they withheld Brady evidence in a murder 1 trial, and sought the death penalty, that's what they get.

      Sought 20 years in a case, with a crime, that usually gets substantially less, and broke the law during the case (withheld evidence, manufactured it, etc, etc) they get 20 years.

      Sought 5 when it could've been 20, maybe because they "needed" a conviction but felt guilty for being evil? They get 5.


  6. If the courts would have done their jobs properly we wouldn't be having this discussion. Qualified immunity is supposed to apply to those making a good faith effort to do their job properly. It isn't supposed to apply to those who violate laws that apply to everyone else. A building is on fire, you break in to save a two year old and find drugs, you can't be charged with B&E. You shoot a woman in the face you comes up to your police car to tell you she has been raped, you get charged with murder. Sure these are the obvious cases but the judicial trend seems to have been to push the Overton window of acceptable behavior in the direction of the latter, making it easier for authorities to abuse their power.

    I still wonder (and I know there are valid arguments against but…) why we can't start looking at systems where police, govt officials, etc aren't required to carry personal liability insurance like teachers are. If you abuse your authority too often, that insurance gets expensive enough that you probably have to find a new job.

    And as far as the lawyers making money, don't they always, win, lose, or draw?

  7. Good Samaritan Law: Immunity if you get volunteer, none if you get paid.

    Short term solution.

    Long term is "A law in every heart or a policeman on every corner."

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