CENTER FOR POLICY ANALYSIS AND RESEARCH Criminal Justice
Federal Legislative Solutions to Curb Qualified Immunity for School Resource Officers and Other School Officials
JANUARY 2023 Tatyana Hopkins, John R. Lewis Social Justice Fellow
IntroductionIn May 2015, Mario Badia, a school resource officer in Kissimmee, Florida, threw a middleschool student to the floor after a minor disciplinary incident. This led to the filing of criminal charges as well as civil rights claims of false arrest and excessive force under 42 U.S.C. § 1983 and battery under Florida state law against Badia. 1 Based largely on a video of the nearly three-minute encounter—where Badia grabbed the 13-year-old by his face and shoved him in the chest before using an “armbar” technique to flip and slam him to the ground—Badia was criminally prosecuted for, and pled guilty to, battery. However, the district court dismissed the student’s civil claims after finding that qualified and statutory immunity were applicable.
This year, a panel of the U.S. Court of Appeals for the Eleventh Circuit voted to revive the civil claims for excessive force and battery. Finding that Badia had no law enforcement justification for his actions and that the seventh grader was “a non-hostile and nonviolent suspect who ha[d] not disobeyed instructions” or attempt to flee, the court held that Badia’s actions violated the student’s Fourth Amendment rights. The court’s August 22, 2022, decision in Richmond v. Badia marked a rare denial of qualified immunity—a legal doctrine that shields police and other public officials from being sued over allegations of misconduct—and possibly pronounced a potential shift in the application of the highly criticized doctrine in later excessive force cases.
Without federal legislation, however, inconsistent application of qualified immunity doctrine in courts around the country leave children—particularly Black children— vulnerable to having their constitutional rights violated in schools without recourse for the school officials who abuse them.
Qualified Immunity
Qualified immunity became a pillar of the 2020 protests calling for greater police accountability, following the police killing of George Floyd in Minneapolis, MN. 2 Since then, most Americans have called for ending the legal defense to civil rights actions, 3 but both Congress and the Supreme Court remain reluctant to do so. 4
The defense shields different classes of state government officials—including police officers and prison and school administrators—from lawsuits seeking monetary damages when they are accused of violating the Constitution. Created by the Supreme Court
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CPAR | Federal Legislative Solutions to Curb Qualified Immunity for School Resource Officers and Other School Officials
in 1982, through its decision in Harlow v. Fitzgerald , in an effort to prevent litigation and liability from chilling the work of government officials, qualified immunity is one of the main mechanisms for police and other public officials to avoid accountability for constitutional violations.5 Under the doctrine, government officials are immune by default, and to overcome immunity, a victim of government abuse must prove that the government official violated a clearly established right. Proving such often requires the victim to point to a prior Supreme Court or circuit court opinion that held nearly identical behavior to theirs to be unconstitutional.6
Overcoming qualified immunity is a critical step in a police misconduct case. The doctrine applies when government officials exercise discretion in their official capacity, and it is often the first defense they claim when sued for misconduct. If successfully applied, qualified immunity leads to the dismissal of civil claims, meaning victims recover nothing for their losses. If qualified immunity is denied, the official can be held personally liable for their actions and can be compelled to compensate the victim. However, victims of even the most outrageous unconstitutional conduct are often left without remedy.7
Since its creation, qualified immunity has been one of the main mechanisms for public officials to avoid accountability for constitutional misconduct. While much of the focus on qualified immunity has been how it protects law enforcement officers, the calls for reform hardly ever consider its extension into schools and classrooms. This extension often affords public school employees and officials protection when mistreating students without fear of personal liability under federal civil rights law.
Although the Eleventh Circuit—which covers Alabama, Georgia, and Florida—denied the application of qualified immunity in Richmond v. Badia , all federal courts have not moved to recognize students’ Fourth Amendment right to be free of excessive force in school.
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CPAR | Federal Legislative Solutions to Curb Qualified Immunity for School Resource Officers and Other School Officials
Implications and Limitations of Richmond v. Badia
With the ruling established in Richmond v. Badia , similar acts of excessive violence from student resource officers could be brought forward for review. However, the impact of the decision in other federal circuit courts is unclear. This is because after nearly four decades since its creation of qualified immunity, the Supreme Court has still not clarified what authorities, other than its own,8 are relevant to the analysis of the clearly established standard. Instead, the Court has only vaguely offered that existing precedent used to prove that alleged misconduct was a violation of clearly established law should place the constitutional question “beyond debate.” 9
Four decades since its creation of qualified immunity, the Supreme Court has still not clarified what authorities, other than its own, are relevant to the analysis of the clearly established standard.
With such little guidance as to what cases and sources— such as reference to Supreme Court, circuit court, or district court precedent—are sufficient to prove that an alleged act of misconduct constitutes a violation of clearly established law, many lower courts have adopted a more restrictive definition of the standard.10 These definitions often require a case to have taken place in the same jurisdiction as the alleged misconduct to count as controlling precedent for purposes of a qualified immunity analysis. This means precedent set outside of a jurisdiction of alleged government misconduct is often of little consequence.
Even cases with similar facts in the same jurisdiction may be limited in their effect to put public officials on notice to sufficiently meet the clearly established standard, a requirement for victims alleging misconduct to overcome qualified immunity. While the Supreme Court has not required that precedent be factually identical to subsequent cases alleging governmental misconduct to establish whether the alleged actions constitute a violation of clearly established law, the Court has held that existing precedent places an issue beyond debate. This requires analysis considering the specific facts of a case. For example, in the 2021 case, RivasVillegas v. Cortesluna , the Supreme Court reversed the Ninth Circuit’s denial of qualified immunity to a California police officer who placed his knee on the back of an armed suspect lying face-down on the ground for eight seconds during the handcuffing process.
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CPAR | Federal Legislative Solutions to Curb Qualified Immunity for School Resource Officers and Other School Officials
The Court determined that the single Ninth Circuit precedent relied upon by the appeals court did not clearly establish that the officer’s conduct was unconstitutional because the facts of the precedential case were not sufficiently similar to the facts of the case before it.
While most circuits already have a rule on what precedents are binding and applicable to similar cases to establish that alleged misconduct constitutes a violation of clearly established law, the potential adoption of Richmond v. Badia to resolve future schoolbased excessive force claims in other circuits remains unknown.
Effect on Black Students
Tasked with keeping schools safe, school resource officers have long been a fixture in American schools. Instead, the reality has been the criminalization of students of color, especially those belonging to other marginalized groups such as students with disabilities and students of LGBTQ+ identities.
While referred to as school resource officers, the legal power of these officers assigned to patrol schools is that of any other police officer. School resource officers can legally use force against students and arrest them, even for simple misbehavior. This often makes schools the entry point to the legal justice system as virtually any violation of a school rule can be considered a criminal act if viewed through a police-first lens.11
The Center for Public Integrity found that during the 2017-18 school year, nearly 230,000 students across the U.S. were referred to law enforcement, and roughly a quarter of those referrals led to arrests.12 Further, it found that school policing disproportionately affects students with disabilities, Black children and, in some states, Native American and Latino children. In 46 states, the rate at which Black students were referred to law enforcement was higher than the rate for all students, and in every state, the rate at which students with disabilities were referred to law enforcement was higher than the rate for all students. Nationwide, Black students and students with disabilities were referred to law enforcement at nearly twice their share of the overall student population.
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CPAR | Federal Legislative Solutions to Curb Qualified Immunity for School Resource Officers and Other School Officials
The over-policing and over-disciplining of Black children in schools is cause for concern about how doctrines like qualified immunity fail to compensate students for the unlawful acts of those responsible for their care.
Federal Efforts
After nearly a year of Congressional debate, major legislative efforts to end qualified immunity were eventually abandoned in the 116th Congress.13 However, some efforts have been revived in the 117th Congress:
The George Floyd Justice in Policing Act of 2021 (H.R. 1280) is a policing reform bill drafted by Democrats and re-introduced in the 117th Congress by Rep. Karen Bass (D-CA) in the House of Representatives on February 24, 2021. The bill promotes restricting the use of certain policing practices, enhancing police transparency and data collection, and establishing best practices and training requirements for police. Its provisions restricting the application of the qualified immunity doctrine for local and state officers was a source of debate. The bill passed the House of Representatives but was blocked in the Senate in September 2021.
The Just and Unifying Solutions to Invigorate Communities Everywhere Act of 2021 (JUSTICE Act) (H.R. 677) is a parallel House bill, introduced by Rep. Pete Stauber (R- MN), which is identical to a bill introduced in 2020 in the Senate by Sen. Tim Scott (R-SC). The bill offers federal incentives for police departments that implement “best practices” and end “controversial” policing tactics and would seek to penalize departments that do not. The bill, however, does not include federal mandates to curb police use of force or ban harmful practices like chokeholds and no-knock warrants. It also does not address the issue of qualified immunity.
A more targeted bill, the Ending Qualified Immunity Act (H.R. 1470), reintroduced by Rep. Ayanna Pressley (D-MA) in the House on March 1, 2021, eliminates the defense of qualified immunity in civil actions for deprivation of rights. On April 28, 2021, the bill was referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
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CPAR | Federal Legislative Solutions to Curb Qualified Immunity for School Resource Officers and Other School Officials
Policy Recommendations
Policy, not law, drove the Supreme Court’s adoption of qualified immunity, and over the decades, the doctrine has significantly narrowed accountability for government officials by exempting them from litigation and leaving victims without remedy. To curb the harms of qualified immunity in all its applications, not just between police officers and civilians but also between students and public-school employees, it is imperative that policies do the following:
Eliminate the doctrine of qualified immunity for Section 1983 suits. Congress should amend Section 1983 to explicitly eliminate the doctrine of qualified immunity from all suits arising under the statute against state and local government officials.
Apply any elimination of qualified immunity to all government actors, not just police officers. Recent efforts and legislation to eliminate qualified immunity have been focused specifically on law enforcement but should include all government officials, especially those performing quintessential public functions such as operating public schools.
Amend the Civil Rights Act of 1871 to make government employers vicariously liable for misconduct. Even if qualified immunity is eliminated, victims are likely to only be able to collect a small portion of it from violating government officials.14 The Civil Rights Act of 1871, under which misconduct cases have been brought, precludes governments that employ the offending officers from getting held financially responsible. Fortunately, Congress would be able to rectify this by amending the Civil Rights Act of 1871 to make the employers of law enforcement officers and other public officials liable for the misdeeds of their employees to the same extent as private employers could be held liable for their workers.
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CPAR | Federal Legislative Solutions to Curb Qualified Immunity for School Resource Officers and Other School Officials
Codify the right to bring civil damages actions against federal officials and individuals who commit violations under the color of federal law. There is no legislation that establishes a statutory right of action against federal officials and those acting under the color of federal law. Although the Supreme Court recognized the ability of individuals to bring damages claims against federal officers in certain circumstances ( Bivens v. Six Unknown Named Agents , 1971), that decision has been almost completely gutted over the past 30 years. Therefore, codification of Bivens and congressional override of judicially imposed limitations on the doctrine is necessary.
Place conditions on federal funding to encourage states and local governments to adopt policy changes that promote accountability and justice. The federal government has almost no control over state and local police departments and school boards. However, Congress can make the adoption of certain policies and practices a condition for getting federal grants, so long as the condition is not coercive. For example, certain federal funds can be conditioned on states eliminating qualified immunity for actions arising under state or federal law and corporal punishment in schools or unsealing the disciplinary records of public officials. Funding can also be used to encourage school districts to adopt public Memorandums of Understanding with local law enforcement that limits the role of police in schools, including to prohibit the regular presence of police in schools or limit police responses to serious criminal matters that present an immediate threat of harm.15
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CPAR | Federal Legislative Solutions to Curb Qualified Immunity for School Resource Officers and Other School Officials
Conclusion
Qualified immunity reform is needed to ensure that police and other government officials can be held accountable after they violate the Constitution. Immunity allows government employees to do their jobs without exposure to personal liability and can obstruct accountability and justice for victims of governmental abuse. This rings true even in classrooms where teachers, school administrators, and school resource officers are granted immunity for conducting unconstitutional strip searches of 13-year-old students,16 punishing student speech,17 or even participating in corporal punishment.18
Federal legislators must work to eliminate the harm of qualified immunity, which bears heavily not just on the street but in schools— where a troubling record of unchecked violence against students exists.
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CPAR | Federal Legislative Solutions to Curb Qualified Immunity for School Resource Officers and Other School Officials
REFERENCES
1. Richmond v. Badia (United States Court of Appeals for the Ninth Circuit August 22, 2022).
2. Kindy, K. (2021, October 7). Dozens of states have tried to end qualified immunity. Police officers and unions helped beat nearly every bill. Washington Post. Retrieved from https://www.washingtonpost.com/politics/qualified-immunity-policelobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1-42a8138f132a_story.html
3. Pew Research Center. (2020). (rep.). Majority of Public Favors Giving Civilians the Power to Sue Police Officers for Misconduct. Retrieved from https://www.pewresearch.org/politics/2020/07/09/majority-of-public-favors-giving-civiliansthe-power-to-sue-police-officers-for-misconduct/
4. Sullivan, B. (2021, October 18). The U.S. Supreme Court Rules in Favor of Officers Accused of Excessive Force. Retrieved from https://www.npr.org/2021/10/18/1047085626/supreme-court-police-qualified-immunity-cases
5. An Immune System. (2020, July 8). Code Switch. episode. Retrieved from https://www.npr.org/2020/06/12/876212065/ an-immune-system
6. Schwartz, J. C. (2020, June 3). Suing police for abuse is nearly impossible. The Supreme Court can fix that. Washington Post.
7. Id.
8. D.C. v. Wesby (Supreme Court of the United States January 22, 2018).
9. Ashcroft v. al-Kidd (Supreme Court of the United States May 31, 2011).
10. Fynn, T. (2019). Qualified Immunity Formalism: “Clearly Established Law” and the Right to record Police Activity. Columbia Law Review, 119(2), 445–486. Retrieved from https://columbialawreview.org/content/qualified-immunity-formalism-clearlyestablished-law-and-the-right-to-record-police-activity/
11. Na, C., & Gottfredson, D. C. (2011). Police officers in schools: Effects on school crime and the processing of offending behaviors. Justice Quarterly, 30(4), 619–650. https://doi.org/10.1080/07418825.2011.615754
12. Mitchell, C. (2021). (rep.). What You Need to Know About School Policing. The Center for Public Integrity. Retrieved from https://publicintegrity.org/education/criminalizing-kids/what-you-need-to-know-about-school-policing/
13. Cowan, R. (2021, September 22). U.S. Congressional Negotiations on Police Reforms Fail. Reuters. Retrieved from https:// www.reuters.com/world/us/republicans-are-refusing-back-police-reforms-trump-supported-white-house-2021-09-22/
14. Schwartz, J. C. (2014). Police indemnification. New York University Law Review, 89(3). https://doi.org/10.2139/ ssrn.2297534
15. Dignity In Schools. (2018). (rep.). Model Policies to Fight Criminalization. Retrieved from https://dignityinschools.org/wpcontent/uploads/2018/10/ModelPolicies_FightCriminalization.pdf
16. Safford Unified School District v. Redding (Supreme Court of the United States June 25, 2009).
17. Morse v. Frederick (Supreme Court of the United States June 25, 2007).
18. Gershoff, E. T., & Font, S. A. (2018). (rep.). Corporal Punishment in U.S. Public Schools: Prevalence, Disparities in Use, and Status in State and Federal Policy. National Center for Biotechnology Information. Retrieved from https://www.ncbi.nlm.nih. gov/pmc/articles/PMC5766273/
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CPAR | Federal Legislative Solutions to Curb Qualified Immunity for School Resource Officers and Other School Officials
CENTER FOR POLICY ANALYSIS AND RESEARCH Criminal Justice
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