Published October 6, 2026
Last reviewed October 6, 2026.
What qualified immunity is
Qualified immunity is a defense created by courts, not by Congress. It shields government officials, including police officers, from personal liability for money damages in civil rights lawsuits, unless they violated a constitutional right that was "clearly established" at the time. The modern test comes from Harlow v. Fitzgerald (1982), and courts apply it in two steps described in Pearson v. Callahan (2009): Was a constitutional right violated? Was that right clearly established?
When officers lose it
1. The right was clearly established by earlier cases. If courts in that jurisdiction had already held that very similar conduct was unconstitutional, a reasonable officer is expected to know it.
2. The violation was obvious. The Supreme Court has said that in obvious cases, no prior case with matching facts is needed. In Hope v. Pelzer (2002), prison guards were denied immunity for handcuffing an inmate to a hitching post in the sun. In Taylor v. Riojas (2020), the Court denied immunity to officers who held an inmate for days in cells covered in waste.
What qualified immunity does not protect
- Criminal charges. It applies only to civil lawsuits for money.
- Cities and counties. Under Monell v. Department of Social Services (1978), local governments can be sued for unconstitutional policies or customs, and they cannot claim qualified immunity.
- Court orders to stop a practice (injunctions).
- State-law claims in some states. Colorado (SB 20-217, 2020) and New Mexico (Civil Rights Act, 2021) created state-law civil rights claims where qualified immunity is not a defense, and New York City passed a similar local law.
Why it matters if you film police
The right to record police is now recognized by most federal appeals courts. As more courts recognize it, it becomes harder for an officer to claim that right was not "clearly established," which matters if an officer retaliates against someone for filming.
How to protect yourself
- Record, and back up your footage.
- Stay calm and do not physically resist. Challenge it later.
- Get names, badge numbers and car numbers.
- Request the records with the CopFax request letter generator.
- File a complaint.
- Talk to a civil rights attorney about deadlines. Federal civil rights claims borrow your state's time limit for personal injury suits, often two or three years.
CopFax is not a law firm and this is not legal advice.