By Granite State Report
Introduction
The doctrine known as qualified immunity has been a major point of contention in U.S. policing and civil-rights reform. Simply put, it shields law-enforcement officers (and other public officials) from being held personally financially liable in many civil suits alleging constitutional violations, unless they violated a “clearly established” right. Critics argue this creates a near-impunity shield for officials, especially in policing; defenders argue it protects officers from frivolous litigation and allows confident decision-making in high-risk moments. (Cato Institute)
In the context of New Hampshire, the discussion is urgent and locally grounded: legislative efforts have been made (but not yet passed) to remove or significantly narrow qualified immunity protections, especially for police officers. This article explores the doctrine’s origins, how it operates in New Hampshire, the arguments for ending or reforming it, the counter-arguments, and what reform might look like in practice.
What is Qualified Immunity?
Origins and Federal Doctrine
Qualified immunity was developed by the U.S. Supreme Court; it was not found explicitly in the statute (42 U.S.C. § 1983) that allows civil-rights claims. (State Court Report)
Here are some key points:
- Under § 1983, individuals can sue state and local officials for deprivation of constitutional rights (“under color of state law”). (Cato Institute)
- In Harlow v. Fitzgerald (1982), the Court established the modern form of qualified immunity: officials are immune from damages unless they violated a right that was “clearly established” at the time of their actions. (Business NH Magazine)
- The “clearly established” test means that the law must put the officer on notice that his or her conduct was unlawful. In practice, this often means an earlier case with nearly identical facts. (NH Business Review)
How It Operates in New Hampshire (and Generally)
In New Hampshire:
- As of now, state employees (including police officers) can often assert “official immunity” or similar defenses under state law, and federal qualified immunity remains available in federal court. (New Hampshire Bulletin)
- Reform efforts have been introduced to allow state-law civil causes of action that exclude the qualified immunity defense (in state court) so claims don’t have to navigate the federal doctrine’s high hurdles. (Tenth Amendment Center Blog)
Why the Push to End or Reform It in New Hampshire?
Several arguments (both empirical and normative) underpin the movement to end or reform qualified immunity in New Hampshire. Nerdy-bot alert: the key is distinguishing what the doctrine does now versus what reformers hope it will do.
Accountability & Remedies
- Critics say that qualified immunity frequently allows police misconduct—even serious constitutional violations—to go unremedied because plaintiffs cannot meet the “clearly established” barrier. “If you can’t point to a prior case with the same facts . . . you’re out of luck,” according to commentary in New Hampshire. (NH Business Review)
- For instance, one commentary noted that New Hampshire agencies settled 87 civil-rights claims totaling about $4.3 million over a decade (2010-20), yet the law did not provide a direct cause of action under the state constitution for these deprivation of rights claims. (Josiah Bartlett Center)
- Reformers argue that removing qualified immunity would enhance public trust in policing by signaling that constitutional violations will not go unaddressed.
Alignment with the State’s Constitution & Rights
- New Hampshire has its own Bill of Rights (in its state constitution) that provides protections against state action. Some reformers argue the remedy structure should reflect that and allow citizens to seek redress in state court without being blocked by defense doctrines rooted in federal jurisprudence. (Josiah Bartlett Center)
- The idea: if the state constitution says you have rights, the legislature (or courts) should ensure you have a pathway to enforce them.
Comparative Reform Elsewhere
- States such as Colorado and New Mexico have passed laws eliminating or limiting qualified immunity under state law (though not removing federal qualified immunity). (Police1)
- The movement in New Hampshire draws on those examples: providing an alternative or supplement to federal law, increasing accountability at the state level.
Legislative Efforts in New Hampshire
- In 2021, HB 111 was introduced in the New Hampshire House to exclude qualified immunity as a defense in suits involving public officials. The bill was defeated (House voted 184-178 then tabled) in April 2021. (WMUR)
- More recently, HB 1640 (prefiled December 2023) would have allowed state‐court causes of action against state agents or political subdivisions for violations of rights under state or federal law, explicitly excluding qualified immunity. (Tenth Amendment Center Blog)
What Are the Arguments Against Ending Qualified Immunity?
Of course — chaotic justice is not the goal (nerd budget says: let’s evaluate the pushback). Here are the main counter-arguments:
Fear of Litigation Flood
- Police associations and municipal groups say that eliminating qualified immunity will expose officers and municipalities to large numbers of lawsuits, including frivolous ones, which could increase insurance costs, deter officers from doing their jobs, or lead to budget impacts (taxpayers covering judgments). (NH Journal)
- Example: A New Hampshire sheriff warned of a “mass exodus” of officers if immunity protections are stripped. (NH Journal)
Operational Risk and Officer Disincentives
- The argument is that in policing, officers often must make split-second decisions under uncertainty; if officers fear personal liability, they may engage in overly cautious or defensive policing, or avoid making necessary interventions.
- Some also assert that qualified immunity protects public service by preventing distraction and skyrocketing liability costs. (See Alito’s description of balancing interests). (NH Journal)
Municipal/Taxpayer Financial Concern
- Municipalities fear large judgments or increased insurance premiums could impact budgets, reduce funds for police or other services, or shift responsibilities onto local governments. In fact, in New Hampshire’s 2021 debate, a coalition of 13 mayors opposed the immunity-removal bill citing taxpayer exposure. (WMUR)
Complexity of Implementation
- Some legal commentators note that simply eliminating qualified immunity may not fully solve the accountability problems because other barriers remain (statutes of limitations, causation, doctrine of sovereign immunity, evidentiary hurdles). (State Court Report)
What Would “Ending Qualified Immunity” Look Like in Practice in New Hampshire?
Here’s a working theory map of how reform might play out, with pitfalls.
Legislative Options
Amend State Law to Create State Cause of Action Without Qualified Immunity Defense.
- A bill (like HB 1640) could allow a person to sue in state court for violations of rights under the New Hampshire Constitution or U.S. Constitution, holding the governmental employer liable (rather than the individual employee) and eliminating the “clearly established” requirement. (End Qualified Immunity)
- Example provision: “The court shall not be impeded by an invocation of a defense of immunity including that the rights were not clearly established etc.” (End Qualified Immunity)
- The employee might still be shielded from personal liability (so municipalities absorb risk) — this addresses one concern of officers being personally bankrupted or deterred.
- The bill might also include attorney’s fees, public-records access to misconduct, and employer responsibility for settlements. (End Qualified Immunity)
Legal Effects
- Plaintiffs might find it easier to bring suits in state court without needing to find nearly identical precedent.
- Police departments (municipalities) would likely face more claims, and insurance or risk-management would change.
- It may shift behavior: the knowledge of potential liability might push departments to invest more in training, oversight, use-of-force policies, body cameras, community policing.
Implementation Challenges & Unintended Consequences
- Despite removing qualified immunity, plaintiffs still face hurdles: proving constitutional violation, causation, identifying the proper defendant (employee vs. employer), statutes of limitation.
- Risk of defensive policing: officers might avoid proactive decisions to avoid liability, or departments might recruit fewer officers or make more conservative decisions.
- Local governments may see increased cost risk (litigation, settlements, insurance), which may lead to budget trade-offs or pushback.
- There could be jurisdictional tension: if claims are based on federal constitutional violations, defendants might still attempt to remove to federal court where qualified immunity applies. Indeed, some commentators question whether federal courts would honor state statutes that attempt to eliminate qualified immunity for federal claims or officers acting under federal color of law. (Tenth Amendment Center Blog)
Why This Matters for New Hampshire’s Future Policing
From a big-picture standpoint, ending or reforming qualified immunity in New Hampshire connects to broader trends in police accountability, trust in law enforcement, and community relations.
- If citizens believe there is no meaningful remedy when rights are violated, trust erodes—and trust is a key component of effective community policing.
- Reform sends a signal: the state takes its constitutional guarantees seriously and expects government actors to be accountable.
- It aligns with national momentum: as noted, several states are moving in this direction while many others are resisting or doubling down. (Police1)
- It opens a pathway for data: as more claims proceed, we may learn more about patterns of misconduct, departmental risk, and ways to prevent harm.
- It invites political and policy questions: training, oversight, budgets, settlement funds, insurance—these all come into play.
Key Considerations for Designing Reform (Nerdy Check List)
Here are several design questions that policymakers and stakeholders in New Hampshire will need to address if reform is pursued:
- Scope of Rights Covered – Should the state-law cause of action cover only New Hampshire constitutional rights, or also federal constitutional rights (with the federal question routed to state court)?
- Defendant Structure – Should the employee face personal liability, or only the employer (municipality or agency)? Many bills propose employer liability only, protecting officers personally but placing cost on government.
- Limits on Damages – Should there be caps on damages (e.g., $25,000 etc.)? Some states put ceilings. (Police1)
- Insurance & Settlements – If municipalities bear cost, how will insurance providers respond? Will premiums rise? Will smaller towns struggle?
- Training & Prevention Measures – Reform could be paired with stronger oversight: body cameras, transparent misconduct records, early-intervention systems, bias training.
- Jurisdictional Strategy – How to avoid claims being removed to federal court where traditional qualified immunity applies? Some draft laws try to specify rights under the state constitution so federal removal is less likely. (Tenth Amendment Center Blog)
- Defense Against Frivolous Suits – How to ensure reformers’ goals of accountability don’t lead to a surge of poorly-grounded suits that clog courts and shift resources away from public safety? Perhaps through early screening, cost-shifting mechanisms or caps for bad-faith suits.
- Budget & Taxpayer Impact – Municipalities and state agencies must plan for potential increased liability exposure; budgeting, reserves, and risk-management must evolve.
- Cultural Change in Policing – Liability reform alone won’t fix underlying issues such as use-of-force policies, recruitment practices, officer wellness, supervision. A holistic approach strengthens reform.
- Data & Monitoring – Build in metrics: How many suits are filed? What is the cost? Does reform correlate to changes in officer conduct or community trust? Without data, we’re flying blind.
Conclusion
Ending or significantly reforming qualified immunity in New Hampshire is not merely a legal tweak—it is a structural shift in how public accountability, policing, and government liability interact. On one hand, removing the “clearly established” hurdle promises to open more meaningful paths for redress when rights are violated. On the other hand, designing reform in a balanced way—protecting officers from frivolous litigation, safeguarding public safety, and managing public‐budget risks—is the challenge.
If the Granite State moves in this direction, it will join a growing wave of states rethinking how to align constitutional rights, policing practices, and accountability. The nerd in me is excited: this is an experiment in democracy and law in real time.
