Civil Liability

Law enforcement officials are subject to civil liability for intentional actions on their part to deprive citizens of constitutional rights. This liability derives primarily from the Ku Klux Klan Act of 1871, enacted as a response to the systematic injustices leveled against blacks in the aftermath of the Civil War. Although written with a narrow constituency in mind, the Act is cast in broad terms, providing a remedy against “any person” who, under color of state law, deprives any person of “any rights, privileges or immunities secured by the Constitution.” The Act is codified as 42 U.S.C. §1983.

During the 1960s and 1970s, the U.S. Supreme Court began widening the coverage of Section 1983 to match its expansive language. In Monroe v. Pape (1961), the Court held that Section 1983 provides a remedy for any constitutional violation committed under color of state law. Prior to that decision, the Court had left unresolved the question of whether the phrase “under color of state law” includes actions taken by public officials in the course of their duties, but not mandated by the law of the state. In 1971, the Court went a step further, ruling in Bivens v.Six Unknown Named Agents of Federal Bureau of[Page 61]Narcotics that a private right of action existed for violations of constitutional rights by federal officials, analogous to that of Section 1983. These decisions significantly increased the limits of personal liability for state and federal officers.

At the same time, the Court developed a scheme to protect individual public officials from Section 1983 and Bivens liability. Common law had long recognized certain immunities for public officials. Judges, legislators, prosecutors, the president, and other members of the executive branch are all absolutely immune from liability for actions taken within the scope of their discretionary authority. In 1967, the Court began a process of extending a qualified immunity to law enforcement officers and other government officials for actions taken during the execution of their official duties.

In Pierson v. Ray, the Court established a good-faith defense for public officials. The Pierson Court held that police officers who had arrested several black ministers in a “whites only” area of a train station were immune from damages so long as they “reasonably believed in good faith that the arrest was constitutional.” The Pierson standard contained both an objective component (reasonable belief) and a subjective component (good faith).

In Harlow v. Fitzgerald (1982), the Supreme Court abandoned the subjective prong of the test, thus broadening the scope of protection afforded officers. The new test shielded government officials from civil liability as long as their conduct did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Under Harlow, if the right violated by an official is found to be not clearly established at the time of the official's action, the official is shielded from liability even if a court determines that a violation of constitutional rights occurred and even if the official knew that his conduct violated the plaintiff's rights.

Qualified immunity is thus a broad protection. Even if an officer believes him-or herself to be violating a citizen's constitutional rights—and even if he or she is right in this belief—he or she is nevertheless protected from liability as long as that violated right has not been clearly established. According to Anderson v. Creighton (1987), a right is clearly established if the “contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates the right.” Again, an especially knowledgeable officer who intentionally violates someone's rights may nevertheless be exempt if an officer of average knowledge would not have been aware of the right. Subjective intent is irrelevant to the determination of immunity. Moreover, qualified immunity is a protection from suit, not just a shield from liability. Unless a plaintiff can show that the right he or she alleges to have been violated was clearly established, his or her claim will be dismissed.

...