April 22, 2021
As we begin to work through legislation passed this session, I continue to hear about concerns associated with qualified immunity. In an effort to eliminate questions and concerns about this subject, I have asked Mr. Ron Levitan, Principal Counsel for the Department of State Police, Office of the Attorney General, to provide an overview of facts about State Tort Law and qualified immunity.
To be clear, legislation eliminating qualified immunity was not passed in this session and its availability as a defense remains.
Please see Mr. Levitan’s guidance below:
If you are sued for conduct within the scope of your employment as a State Trooper, you are entitled to representation by the Attorney General’s Office, unless your conduct was grossly negligent or malicious. The determination of whether you are entitled to representation is not based on what the Plaintiff alleges in the lawsuit, but is determined by the Attorney General’s Office.
If you have allegedly committed a state tort, for example a car accident or false arrest, you are entitled to immunity for any conduct that was negligent. In that situation, the Plaintiff may be entitled to compensation from the State under the Tort Claims Act, but not from you. If the conduct is proven to be grossly negligent or malicious, you may be personally liable.
If you are sued for a violation of a federal constitutional right you are entitled to assert what is known as qualified immunity. While the General Assembly this year introduced bills eliminating qualified immunity in Maryland, they did not pass. Qualified immunity remains an available defense, just as it always has been.
Qualified immunity is a legal principle that grants police officers performing discretionary functions immunity from civil suits unless the plaintiff shows that the officer violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Qualified immunity shields police officers from liability in situations where they must make split second decisions. It is a protection, not just from damages, but from being sued. Under the test established by the Supreme Court, two questions must be examined by the trial court: (1) whether the facts indicate that a constitutional right has been violated, and (2) whether that right was “clearly established” at the time of the alleged conduct. Qualified immunity applies unless the answer to both questions is “yes.”
While there are many factors that can influence outcomes related to legal decisions, I hope this information serves as a foundation which allows you to better understand where you stand as you perform your job duties.
We will continue to provide updates on legislation as we define the impact on our Department and how we will adapt and move forward. As always, pass along questions and we will do our best to answer them.
Colonel Woodrow W. Jones III
Maryland Department of State Police