Qualified Immunity Doctrine Leaves Justice for Victims to Chance

Cars can kill. But not usually while backing up at less than 3 miles per hour in a parking lot with no one in its path. Dallas police officers used deadly force anyway to stop a slow-motion getaway on Jan. 18, 2017.

The civil rights lawsuit that followed should have been about whether the officers violated the law by opening fire without cause. Instead, in an unpublished decision on April 3, the US Court of Appeals for the Fifth Circuit rejected constitutional claims against the officers by invoking “qualified immunity,” a rule that leaves justice to chance.

VIDEO: Qualified Immunity: Origins of a Police Liability Shield

Victims of government abuse can sue, but only if they can point to a nearly identical case in the same jurisdiction that clearly establishes the relevant misconduct as unconstitutional. This has been the rule since 1982, when the US Supreme Court invented it.

The idea of qualified immunity is to give public officials fair warning before holding them responsible for their actions, but the result is something like a lottery for their victims.

Nobody has control over how a public official violates their rights. They shouldn’t lose their case against a public official simply because they were the first person to endure a type of abuse.

If their case happens later—through a perverse type of luck—they can beat qualified immunity. But many courts toss lawsuits against government defendants without ruling on the underlying constitutional questions, meaning cases can end without clearly establishing anything. This is another component of qualified immunity that victims can’t control.

A 2024 report from my public interest law firm, the Institute for Justice, examined all federal qualified immunity appeals from 2010 to 2020. Overall, courts resolved these appeals solely in favor of public officials 59% of the time, compared with only 24% for their accusers.

Government employees can escape consequences even when their conduct is so egregious it triggers criminal prosecution. This is what happened in Dallas. The officer who fired the fatal shots lost his job, and prosecutors charged him with aggravated assault. After his 2020 acquittal, survivors of the deceased sued for civil damages and lost.

The encounter started early one morning before dawn, when a resident reported a “suspicious” SUV parked in the back corner of an apartment complex. Officers ran the plates, got a hit for a stolen vehicle, and moved into position.

Initially, the officers didn’t know if the SUV was occupied. The windows were fogged, the sky was dark, and nobody responded to police commands.

Bodycam footage and testimony from the criminal trial document what happened next. A driver turned on the SUV and backed into the unoccupied police cruiser. Then the SUV crawled forward, collided with the fence, and reversed again.

An officer fired 12 rounds in response, striking the driver at least four times and killing her. The driver was Genevive Dawes, a young mother pregnant with her third child. She and her husband, Virgilio Rosales, had parked overnight and had been sleeping inside the SUV. The only other occupant was a dog.

Dawes’ survivors said she didn’t know the vehicle was stolen. They said she had purchased it one month earlier and thought the transaction was legitimate. Rosales said he and his wife were startled awake and didn’t hear the commands.

Whether the police violated Dawes’ rights remains undetermined. The Fifth Circuit sidestepped the question, focusing instead on the lack of any prior case directly on point—something difficult to find when courts keep sidestepping constitutional questions.

Fortune favored Dawes’ killer. He violated Dallas Police Department policy by firing his weapon without justification. Yet no other officer in Fifth Circuit history has killed someone in quite the same way, and the court demanded almost an exact match.

Plaintiffs cited multiple rulings that were close, but not close enough. One case happened in daylight rather than darkness. And the suspects were traveling away from rather than backing toward the officers.

In another case, an officer fired at a vehicle “three to four houses down the block” rather than in close quarters. He also had fired without warning.

Because no prior ruling was a perfect fit, the officer who shot Dawes prevailed by default: no trial, no verdict, and no damages. The case against the city can proceed, but not the case against the individual who pulled the trigger.

This isn’t how the court system should work. Juries should determine responsibility—not luck.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Elyse Smith Pohl is a legal research and policy attorney at the Institute for Justice in Arlington, Va.

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