New York City Ends Qualified Immunity for Police Officers

On March 25, 2021, the New York City Council passed a law that makes it easier to sue police officers for conducting illegal searches, making false arrests, and using excessive force.  The law “establish[es] a local right of security against unreasonable search and seizure and against excessive force regardless of whether such force is used in connection with a search or seizure.” More importantly, it does not allow for qualified immunity as a defense in any civil lawsuit brought under the law.

Qualified Immunity

To win a lawsuit under Section 1983 of the Civil Rights Act, a plaintiff must prove, among other things, that a constitutional right was violated by a government official.  A plaintiff also has another hurdle. For decades, police officers and other government officials who are defendants in civil suits for alleged violations of constitutional rights have been able to invoke an affirmative defense called qualified immunity.  Qualified immunity, created by the United States Supreme Court, protects government officials from suit for money damages if: (1) their actions do not violate clearly established rights of which a reasonable official would have known or (2) even if the right was clearly established, whether it was objectively reasonable for the officer to believe the conduct was lawful.

Therefore, even if a civil rights plaintiff proves that the government violated a constitutional right, qualified immunity still may protects a government official defendant.  First, if the right was not clearly established, the official is entitled to qualified immunity.  Second, if it is determined that the right was clearly established, then, under the second factor, qualified immunity still protects the official if the court determines that the official’s actions were objectively reasonable in light of the law at the time of the incident.

Qualified immunity is a tough legal roadblock for a plaintiff in a lawsuit against police officers, and is a leading reason why such suits are dismissed.

The New York City Law

Because the Supreme Court has refused to revisit its qualified immunity decisions and Congress has not passed laws limiting or eliminating the defense, New York City, like some other states and municipalities around the country, has taken action by creating a local law.  

The newly created Chapter 8 of the New York City administrative code establishes a local right to be free from excessive force and unreasonable searches and seizures. This local right mirrors the rights conferred by the Fourth Amendment of the United States Constitution and the law explicitly that it is to be interpreted in the same way.  The law also allows individuals to sue police for the deprivation of that right, while explicitly stating that “qualified immunity or any other substantially equivalent immunity” will not shield officers from responsibility.  The law also holds the employer of the officer liable for a violation of the plaintiff’s rights.  Thus, if a plaintiff successfully sues an officer and the officer cannot pay (or if the City refuses to indemnify the officer), the City (and the taxpayers) will be on the hook.

Finally, the law also requires the New York City Law Department— agency that represents the City and its employees in court—to post on its website a list of lawsuits filed under the law.  This allows for more transparency regarding police lawsuits.