On July 10, 2017, police officers arrived at Gabriel Olivas’s home after his son called 911 to report that his father was suffering from a mental health crisis.[1] After Mr. Olivas doused himself in oil, an officer stated, “[i]f we tase him, he’s going to light on fire.”[2] The two fellow officers ignored his warning, fired their tasers at Mr. Olivas, and ignited him in flames. After killing Mr. Olivas, both officers received protection from civil liability under the doctrine of qualified immunity.[3] The lack of police accountability for Mr. Olivas ‘s death stems from the unique protections afforded to police officers by the United States Supreme Court.[4] The judicially constructed doctrine of qualified immunity positions the United States (“U.S.”) as a global outlier in police accountability policy and violates international human rights obligations to provide effective remedy for state violence.[5]
The foundational elements of qualified immunity emerged from Pierson v. Ray, a 1967 U.S. Supreme Court decision where the Court sought to balance accountability with protections for government officials.[6] To avoid frivolous litigation, the Court held that police who acted in good faith with probable cause were entitled to qualified immunity as a defense for civil liability.[7] In 1982, the Court clarified the application of the doctrine, “by stating that officials are immune from prosecution unless they violate ‘clearly established’ rights known to any reasonable person, raising the bar for plaintiffs to challenge abuses.”[8] To show that an official violated a clearly established right, the doctrine “requires a civil plaintiff to identify not only a ‘clear legal rule[,] but a prior case’ with identical facts[,]” which in turn greatly limits a plaintiff’s ability to seek redress for harm caused by government officials.[9] A 2024 study of 5,500 federal appeals revealed the implications of the doctrine, finding that fifty-four percent of plaintiffs were barred from seeking civil remedy due to qualified immunity.[10]
The U.S. fundamentally undermines international protections by substantially limiting citizens from obtaining effective remedies through qualified immunity.[11] The widespread reliance on qualified immunity as a defense to civil liability, particularly by law enforcement officials, stands in stark contrast to international human rights frameworks. Article 8 of the Universal Declaration of Human Rights (“UDHR”) establishes the right to effective remedy, declaring that “[e]veryone has the right to an effective remedy by competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”[12] Similarly, Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”) asserts, in part, that “[e]ach State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”[13] Under Article 2(3) of the International Covenant on Civil and Political Rights (“ICCPR”), as ratified by the U.S. in 1992, each nation must provide protections:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.[14]
In comparison to nations like South Africa and the United Kingdom (“U.K.”), the U.S. stands as a global outlier with its sweeping interpretation and implementation of immunity for law enforcement against civil liability.[15] For example, “[u]nder the South African civil law of delict, any person who ‘wrongfully and culpably causes damage or harm to another’ through an act or omission is liable for compensation,” which allows citizens to hold police accountable under traditional tort liability principles of negligence.[16] Additionally, plaintiffs may invoke the State Liability Act to hold the state vicariously liable for the misconduct of its officials.[17] In contrast to the U.S., where qualified immunity bars over half of the nation’s plaintiffs from seeking civil redress against police officers, South Africa civil claims data reveals a dramatic increase in both successful claims and remedies awarded to plaintiffs.[18] Similarly, in the U.K., “a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So [officers] may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence.”[19] This rule extends the duty of care to injuries created by officials themselves, unless statute or common law provide an exception.[20] Through individual and state liability, South Africa and the U.K. allow multiple avenues for citizens to hold public officials accountable, and both nations comply with UDHR, UNCAT, and ICCPR requirements of ensuring proper remedy and redress to individuals harmed by police misconduct—it is time for the U.S. to do the same.[21]
Qualified immunity stands as an over-sweeping and over-broad protection to public officials that limits opportunities for redress and remedy to U.S. citizens harmed by police misconduct and violence. Qualified immunity barred Mr. Olivias’s family from receiving any redress for his tragic and preventable death, and his story exemplifies the individual and systemic consequences of the nation’s refusal to provide meaningful remedy for state violence. To comply with international human rights standards, the U.S. must abolish the qualified immunity doctrine and shift towards general tort liability principles to ensure police accountability and effective remedy for citizens harmed by state actors.
[1] William Roberts, ‘Qualified immunity’: How US Police are Shielded from Lawsuits, Aljazeera, May 24, 2021, https://www.aljazeera.com/news/2021/5/24/qualified-immunity-why-us-police-get-away-with-abuse-murder.
[2] Nick Sibilla, Court Grants Qualified Immunity to Cops Who Set A Man On Fire By Tasing Him, Forbes, Feb. 19, 2021, https://www.forbes.com/sites/nicksibilla/2021/02/19/court-grants-qualified-immunity-to-cops-who-set-a-man-on-fire-by-tasing-him/.
[3] Id.
[4] See Jessika L. Gonzalez, American Judicial Rejectionism and the Domestic Court’s Undermining of International Human Rights Law and Policy After Human Right Violations Have Occurred in the State, 30 Wash. Int. L.J. 397 (2021).
[5] See Id. at 399.
[6] Id. at 400-401.
[7] Id.
[8] Alicia Maule & Keli Young, What You Need to Know About Qualified Immunity and How It Shields Those Responsible for Wrongful Convictions, Innocence Project, Apr. 22, 2024, https://innocenceproject.org/what-you-need-to-know-about-qualified-immunity-and-how-it-shields-those-responsible-for-wrongful-convictions/.
[9] See Gonzalez, supra note 4, at 401-402.
[10] Andrew Wimer, Massive New Study Reveals That Qualified Immunity Is About More Than Police Misconduct, Inst. For Just., Feb. 7, 2024, https://ij.org/press-release/massive-new-study-reveals-that-qualified-immunity-is-about-more-than-police-misconduct/.
[11] See Gonzalez, supra note 4, at 397.
[12] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948) [hereinafter UDHR].
[13] G.A. Res. 39/46, Convention Against Torture (Dec. 10, 1984) [hereinafter UNCAT].
[14] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
[15] Gwen Dereymaeker, Making Sense of the Numbers: Civil Claims Against the SAPS, 54 SA Crime Quarterly 29, 30 (Dec. 2015).
[16] Id.
[17] Id.
[18] Id.
[19] Meg Gibson, Robinson v Chief Constable of West Yorkshire Police [2018] – What are the Implications for the Law of Negligence?, Cambridge Univ. Law Soc’y, https://www.culs.org.uk/per-incuriam/robinson-v-chief-constable-of-west-yorkshire-police-2018-what-are-the-implications-for-the-law-of-negligence?117781f6_page=2.
[20] Id.
[21] See UDHR supra note 11; UNCAT supra note 12; ICCPR supra note 13.
