Qualified immunity is a legal doctrine created by courts, not Congress. A federal law passed in 1871 to fight Ku Klux Klan violence, now known as Section 1983, lets people sue officials who violate their constitutional rights. In Pierson v. Ray (1967), the Supreme Court first recognized a good-faith defense for police. In Harlow v. Fitzgerald (1982), it set the modern test: officials are protected unless they violated a clearly established right.
In practice, clearly established often means a court must have already ruled on nearly identical facts. If no earlier case matches closely, the officer is shielded, even when the conduct was clearly wrong. Courts can also grant immunity without deciding whether the conduct was unconstitutional, so the law never develops. Because police use force disproportionately against Black people, the doctrine falls hardest on Black victims and families.
After the 2020 murder of George Floyd, reform efforts grew. Colorado passed a law in 2020 that bars qualified immunity as a defense in state-law claims against police. New Mexico passed a similar law in 2021. The George Floyd Justice in Policing Act, which would have limited the doctrine nationally, passed the House in 2021 but stalled in the Senate.