“Zooming In”: Government Surveillance and the Role of Courts in Shaping Qualified Immunity Doctrine

Madeline G. Ziegler

The killing of George Floyd at the hands of Minneapolis police officers shocked the Nation into intense, renewed awareness regarding police use of force. In the wake of increased activism surrounding police conduct, national attention has turned once again to the qualified immunity doctrine. The doctrine of qualified immunity creates a default presumption of immunity for executive officials performing discretionary functions, and further protects those actors from financial liability, operating as a barrier to plaintiffs attempting to challenge police conduct.

Qualified immunity exists as one option amidst a range of other judicially created immunities for public officials such as absolute immunity for judicial officials. The qualified immunity doctrine purportedly exists to shield the government from the burdens of unwarranted, excessive lawsuits against its executive officials. However, growing scholarly consensus demonstrates that the qualified immunity doctrine insulates police officers from egregious forms of misconduct, promotes “constitutional stagnation,” and fails to achieve the proposed reasons for its continued existence, such as saving the government time and money. Yet, even as a surprisingly diverse consensus of voices denounce qualified immunity, the Supreme Court continues to enforce the doctrine with gusto, and all signals point to the fact that the Court’s position is unlikely to change. This reality is juxtaposed with greater public pressure to end the doctrine as applied to police officers in excessive force cases, and growing dissent within the judiciary itself.

With this context in mind, this Comment has two purposes: (1) to reframe the current discussion of qualified immunity by conceptualizing the doctrine as a mode of government surveillance that disproportionately impacts individuals of color; and (2) to elucidate suggestions for various institutional actors including courts, legislators, and the general public.