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1 1 (February 21, 2023)

handle is hein.crs/govekqr0001 and id is 1 raw text is: \Congressional ______ R esearch Service Policing the Police: Qualified Immunity and Considerations for Congress Updated February 21, 2023 Incidents involving the use of force by law enforcement, such as the 2020 death of George Floyd and the 2023 death of Tyre Nichols, have raised questions regarding how existing law regulates the conduct of police officers. While some of these issues are explored more broadly in other Legal Sidebars, one particular issue of recent judicial and legislative focus is the doctrine of qualified immunity. Qualified immunity is a judicially created doctrine shielding from civil liability those public officials who perform discretionary functions. The doctrine plays a particularly prominent role in defense of civil rights lawsuits against federal law enforcement officials under the Bivens doctrine and against state and local police under 42 U.S.C. § 1983 (Section 1983). Commentators debate whether Congress should legislate to abrogate or otherwise modify the doctrine. Defenders of the doctrine have suggested that qualified immunity plays an important role in affording police officers some level of deference when making split- second decisions about whether to, for example, use force to subdue a fleeing or resisting suspect. Critics of the doctrine have questioned its legal origins and have argued that, in practice, it has provided too much deference to the police at the expense of accountability and the erosion of criminal suspects' constitutional rights. This Sidebar explores the legal basis for qualified immunity, how it has operated in practice, and current debate over the efficacy of the doctrine. The Sidebar concludes by discussing considerations for Congress regarding qualified immunity. What Is Qualified Immunity? Qualified immunity is a judicially created legal doctrine that protects government officials performing discretionary duties from civil liability in cases involving the deprivation of statutory or constitutional rights. Government officials are entitled to qualified immunity so long as their actions do not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The Supreme Court has observed that qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The immunity's broad protection is intended for all but the plainly incompetent or those who knowingly violate the law and to give government officials breathing room to make reasonable mistakes of fact and law. According to the Supreme Court, the driving force behind qualified immunity was to ensure that Congressional Research Service https://crsreports.congress.gov LSB10492 CRS Legal Sidebar Prepared for Members and Committees of Congress

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