Qualified immunity in California: can you still sue a police officer?

Many people who were hurt by police, or who lost someone in a police encounter, hear the words "qualified immunity" early and assume it means the case is over. It does not. Qualified immunity in California works the same way it does in every state: it is a federal defense that can protect an individual officer from a federal damages claim. It does not protect the officer from most California state-law claims, and it never protects the city or county itself.

So, can you sue a police officer in California? In many cases, yes. This guide explains what qualified immunity is, the "clearly established law" test, the claims it does not reach, how California's 2021 police reform law changed state immunities, and what all of this means in a real case. It is general information, not advice about your situation.

What is qualified immunity?

Qualified immunity is a rule created by federal courts, not written in any statute. It applies when a person sues a government official for money under the main federal civil rights law, 42 U.S.C. § 1983. The U.S. Supreme Court's modern test, from Harlow v. Fitzgerald (1982), shields officials from damages unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known."

In a police case, a court generally asks two questions:

1. Did the officer violate a constitutional right? For example, was the force unreasonable under the Fourth Amendment, or was the arrest made without probable cause?
2. Was that right "clearly established" at the time, so that any reasonable officer would have known the conduct was unlawful?

The officer wins on qualified immunity if the answer to either question is no. Courts may decide the second question first, which means some cases end without any ruling on whether the officer actually violated the Constitution.

What does "clearly established law" mean?

This is where most qualified immunity fights happen. Courts generally look for an earlier decision, usually from the U.S. Supreme Court or the federal court of appeals for the region (the Ninth Circuit for California), holding that similar conduct was unconstitutional. A general rule, such as "officers may not use excessive force," is usually not enough on its own. The question is whether existing cases put the specific conduct beyond debate.

In practice, that means the outcome can turn on how closely the facts match an earlier case: whether the person was handcuffed, whether they were resisting, whether there was a warning before a Taser was used, how much time passed. In obvious cases, courts may deny immunity even without a matching case, but lawyers should not count on that.

What qualified immunity does not cover

This is the most important part of this guide. Qualified immunity is narrow in three ways.

1. It does not apply to California state-law claims

Qualified immunity is a defense to federal claims. California courts have held it does not apply to claims under California's civil rights law, the Bane Act (Civil Code § 52.1). It also is not a defense to state claims such as battery, negligence, wrongful death, or false arrest and false imprisonment. California has its own government immunities in the Government Code, and some can apply, but they are different and often narrower. For example, the general immunity for officers enforcing the law with due care expressly does not cover false arrest or false imprisonment (Government Code § 820.4).

2. It does not protect cities or counties

A city or county can be sued under § 1983 when its own policy, custom or practice caused the violation, including in some cases a failure to train or supervise. The Supreme Court set out this rule in Monell v. Department of Social Services (1978). The city or county is not liable just because it employed the officer, but when the policy or custom is proven, it has no qualified immunity. As the Court said in Owen v. City of Independence (1980), "A municipality has no immunity from liability under § 1983 flowing from its constitutional violations."

Under state law, a public entity is generally liable for its employees' acts within the scope of employment, unless the employee is immune (Government Code § 815.2). Since qualified immunity is not a state immunity, the agency can still be responsible on state claims even if the officer wins qualified immunity on the federal claim.

3. It is a defense to damages, not every kind of relief

Qualified immunity protects officers from paying damages. It generally does not block a request for a court order, such as an injunction requiring an agency to change a practice.

How SB 2 changed California's own immunities

In 2021, California passed Senate Bill 2 (Chapter 409, Statutes of 2021). It did not change federal qualified immunity, which only Congress or the U.S. Supreme Court can change. Instead, it strengthened the state-law route:

• It amended the Bane Act so that three state immunities, Government Code §§ 821.6, 844.6 and 845.6, do not apply to Bane Act claims against peace officers or custodial officers, or the public entities that employ them (§ 52.1(n)). Those immunities had covered prosecutions, injuries to prisoners and failures to provide medical care to prisoners.
• It created a process for California's police standards agency, POST, to decertify officers for serious misconduct, so they cannot keep working as officers elsewhere in the state.

The bill's legislative findings expressly criticized "the judicially created doctrine of qualified immunity in federal courts." The practical result is that California-law claims are often the path around a qualified immunity problem.

What qualified immunity means in a real case

Here is how the defense tends to affect a California police case:

• We plead both federal and state claims. A typical case includes § 1983 claims against the officers and the agency, plus state claims for battery, negligence, Bane Act violations and, in a death, wrongful death. If qualified immunity knocks out a federal claim against an officer, the state claims and any policy claim against the agency can continue. Our excessive force guide and police shooting wrongful death guide explain those claims.
• Timing gets longer. Officers often raise qualified immunity early, and a denial can often be appealed before trial. That appeal can add a year or more to a federal case.
• The state claim deadline becomes critical. State-law claims against a California city, county or the State usually require a written government claim within six months of the injury or death (Government Code § 911.2). If you miss it, you may be left with only federal claims, and that is exactly where qualified immunity applies. Read our guide to the six-month government claim deadline.
• Facts and video matter more. Because the test is so fact-specific, the details of what happened second by second can decide the issue. Early preservation of body camera footage, dispatch audio and witness statements is important.
• Who pays. Even when an individual officer is the named defendant, California public entities generally defend and pay judgments for employees acting within the scope of employment, with exceptions such as punitive damages. Families should not decide against suing because they think the officer has no money.

Qualified immunity is a federal question, so it also matters in cases about malicious prosecution and fabricated evidence, where the claims often involve detectives and investigators rather than patrol officers.

Can you sue a police officer in California if your criminal case is still open?

Sometimes the timing is complicated. California law generally bars a person who is facing criminal charges in superior court from suing the officer or the agency over conduct related to those charges while they are pending, and pauses the time limit for suing during that period. But it does not extend the six-month deadline to present a government claim (Government Code § 945.3). Talk to a lawyer before filing anything or giving statements; what you say in a civil case can matter in the criminal case.

How LaCour approaches these cases

LaCour Trial Lawyers is a trial firm led by founding partner Jonathan P. LaCour. We handle police misconduct and wrongful death in custody cases statewide, with Spanish-speaking lawyers and staff, on contingency: no fee unless there is a recovery. Ask for a free, confidential review.

Frequently asked questions

This guide is general information about California and federal law and about public records as of its date. It is not legal advice, and reading it or contacting us does not create an attorney–client relationship. Allegations in lawsuits are claims, not findings. Prior results do not guarantee a similar outcome. Attorney advertising.