The Case Against Qualified Immunity, Part I

If the Supreme Court takes Justice Thomas's suggestion to reconsider qualified immunity and takes seriously available evidence about qualified immunity's historical precedents and current operation, the Court could not justify continued existence of the doctrine in its current form.


Qualified immunity shields police officers and other government officials from liability in damages actions unless they violated "clearly established law." Although the Supreme Court has long described qualified immunity as a powerful protection for "all but the plainly incompetent or those who knowingly violate the law," the Roberts Court has made qualified immunity's shield stronger than ever.

The Court's opinions make clear that plaintiffs can defeat qualified immunity only if her circuit or the Supreme Court has held unconstitutional conduct so factually similar that "every 'reasonable official would [have understood] that what he is doing violates that right.'" And, in recent years, the Court has dedicated an outsized portion of its docket to reviewing—and virtually always summarily reversing—denials of qualified immunity in the lower courts for failing to hold plaintiffs to that exacting standard.

Despite the Roberts Court's apparent commitment to qualified immunity, there are also cracks in the doctrine's armor. Most recently, in his concurrence in Ziglar v. Abbasi, Justice Thomas criticized the doctrine for bearing little resemblance to the common law at the time the Civil Rights Act of 1871 became law and recommended that "[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence." Much attention has been paid to Justice Thomas's call to reconsider qualified immunity. But Justices have been raising questions about qualified immunity for decades.

In 1997, Justice Breyer suggested that defendants should not be protected by qualified immunity if they are certain to be shielded from financial liability by their employer. In 1992, Justice Kennedy indicated that qualified immunity doctrine might be unnecessary to shield government defendants from trial given the Court's summary judgment jurisprudence. And Justice Sotomayor, sometimes joined by Justice Ginsburg, has repeatedly expressed concern that the Court's qualified immunity decisions contribute to a culture of police violence. In other words, five Justices currently on the Court have publicly questioned the common law foundations and policy justifications for qualified immunity.

If the Court does take Justice Thomas's suggestion to reconsider qualified immunity and takes seriously available evidence about qualified immunity's historical precedents and current operation, the Court could not justify continued existence of the doctrine in its current form. Qualified immunity is historically unmoored, ineffective at achieving its policy ends, and detrimental to the development of constitutional law. Scholarly defenses of the doctrine are similarly unpersuasive. The Court should not feel constrained by stare decisis given the questionable foundations of qualified immunity and the liberty the Court has taken with its scope and structure over the fifty years of its existence. And there are many ways, short of downright repeal, that the Court could adjust the doctrine to better reflect its role in constitutional litigation. In an article to be published this month in Notre Dame's Federal Courts issue, I expand on these arguments. Today, and in posts for the remainder of this week, I offer excerpts from that article.

The first argument to reconsider qualified immunity should be well known to readers, as it was powerfully set out by William Baude in a recent article and was invoked by Justice Thomas in Ziglar: ample evidence undermines the purported common law foundations of the doctrine.

When the Supreme Court first announced that executive officers were entitled to qualified immunity in Pierson v. Ray, the Court described qualified immunity as grounded in common law defenses of good faith and probable cause that were available for state law false arrest and imprisonment claims. But, as Baude and others have shown, history does not support the Court's claims about qualified immunity's common law foundations. When the Civil Rights Act of 1871 was passed, government officials could not assert a good faith defense to liability. A government official found liable could petition for indemnification and thereby escape financial liability. But if a government official engaged in illegal conduct he was liable without regard to his subjective good faith. Indeed, the Supreme Court expressly rejected a good faith defense to liability under Section 1983 after it became law. The Court's conclusion in Pierson that a good faith immunity protected the defendant officers from liability is, as Robert Alschuler has argued, "inconsistent with the common law and many of the Court's own decisions."

Moreover, even if one believed that the Court's decision in Pierson accurately reflected the common law, today's qualified immunity doctrine bears little resemblance to the protections announced in Pierson. Although qualified immunity was initially available to government officials who acted with a subjective, good faith belief that their conduct was lawful, the Supreme Court in Harlow eliminated consideration of officers' subjective intent and focused instead on whether officers' conduct was objectively unreasonable. Even when a plaintiff can demonstrate that a defendant was acting in bad faith, that evidence is considered irrelevant to the qualified immunity analysis. The Court has repeatedly made clear that a plaintiff seeking to show that an officer's conduct was objectively unreasonable must find binding precedent or a consensus of cases so factually similar that every officer would know that their conduct was unlawful. And qualified immunity applies to all types of constitutional claims, not only claims for which an officer's good faith might otherwise be relevant. None of these aspects of qualified immunity can be found in the common law when Section 1983 became law, or in Pierson.

To its credit, the Supreme Court has long recognized that it cannot ground its qualified immunity jurisprudence in the common law. Indeed, thirty years ago, the Supreme Court acknowledged that it had "completely reformulated qualified immunity along principles not at all embodied in the common law." The Court reformulated qualified immunity with a specific goal in mind—to shield government officials against various harms associated with insubstantial lawsuits. Tomorrow, I will show that qualified immunity is neither necessary nor particularly well-suited to achieve this goal. But Justice Thomas has raised a more fundamental critique of the Court's turn away from the common law.

In Ziglar, Justice Thomas writes that qualified immunity should conform to the "common-law backdrop against which Congress enacted the 1871 Act," rather than "the sort of 'freewheeling policy choice[s]' that we have previously disclaimed the power to make." If four other Justices share Justice Thomas's view, then they could vote to limit qualified immunity to those defenses available at common law in 1871. As this discussion makes clear, conforming qualified immunity doctrine to the common law in place in 1871 would require dramatically limiting qualified immunity doctrine or doing away with the defense altogether. On the other hand, if five or more Justices do not mind that qualified immunity doctrine currently takes a form far different than the common law in 1871, and do not mind that the doctrine has been structured by the Court to advance its interest in shielding government officials from burdens associated with being sued, then it becomes important to consider the extent to which the doctrine achieves its policy goals. I turn to this topic tomorrow.

[UPDATE, from Eugene Volokh: When I first posted this, I inadvertently failed to change the author name to Joanna's; I've now corrected that.]

NEXT: Joanna Schwartz Guest-Blogging About Qualified Immunity

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  1. Is this post by Professor Viking or Professor Schwartz?

    1. Schwartz, not the Viking.

  2. Qualified immunity should be replaced with strict liability.

    We have strict liability for public welfare offenses.

  3. Professor Volokh or Professor Schwartz?

  4. What has always annoyed me about qualified immunity is that it seems to apply to government officials only, not people in general. Behavior which would land anyone else in jail merely provides a paid vacation to police.

    1. Imagine if “good faith” was a defense to private citizens and/or companies.

      “I’m sorry, your honour, but I’m not aware of any precedent in this circuit that says dumping mercury in the river is clearly illegal.”

      Or: “While it is established that stabbing someone with a 12″ blade is murder, in this case, a blade of only 10″ was used. Since there is no established precedent for this, we must grant the defendant’s claim if qualified immunity”

      1. I guess the only difference is private citizens/companies are working for their own profit/gratification.

        Officials are working for the public.

        1. Your weird distinction doesn’t work if you consider that you have to use two different definitions of working here.

          Private entities labor in order to gain utility.
          Public entities are employed by the state/public.

          The distinction breaks down here. Public entities are also laboring to gain utility and the public still funds most of the labor of private entities.

        2. “Officials are working for the public.”

          Nice sarcasm.

      2. I’d argue that its different b/c you still have a cause of action against the state. You normally don’t against private citizens.

        Companies… qualified immunity might actually make sense there. Especially for hospitals; they’re the entity in the best position to monitor/control quality.

  5. a plaintiff seeking to show that an officer’s conduct was objectively unreasonable must find binding precedent or a consensus of cases so factually similar that every officer would know that their conduct was unlawful.

    This is an utterly bizarre and illogical requirement.

    First, police officers are not legal scholars. They don’t study court decisions to find out what they can and can’t do.

    Second, the number of things an officer might do – the number of ways to violate someone’s constitutional rights – is vastly greater than the number of relevant cases. There is no way that all possible violations are ever going to be ruled out by specific cases. We’ve seen that over and over in the “Short Circuit” posts. QI because there was no case regarding some specific, plainly outrageous, conduct.

    Finally, I don’t understand how this is supposed to work. Officer does something outrageous and gets sued. QI – no precedent. So how does the behavior ever get into the “QI denied” category?

    1. The intent is that the first case of a type that gets resolved also resolves the legal question of if the official acted wrongly but qualified immunity means that this offense won’t result in punishment. After that similar offenses won’t be allowed qualified immunity. Qualified immunity still establishes precedent; they just aren’t punished.

      However, it’s been stretched enough that even nearly factually similar cases can result in qualified immunity, simply because they weren’t identical.

      1. Even if this is so, it only deals with my third objection.

        The first two are quite strong, IMO, especially the second. The number of possible violations is huge. The number of cases is not.

        1. For the first, putting officials who break these laws in jail will either get the point across or otherwise limit the number of officials doing so. They don’t punish the first violator because the assumption is that the official was acting out of concern for the public, not just as a petty criminal. It also isn’t supposed to be based on what someone intimately familiar with law would know but on a reasonable person. A faulty assumption, but it’s the entire reason we have it.

          For the second, the intent was that cases that were similar as a matter of law would fall into the same category and easily dealt with in the future. In practice, they’ve stretched it like Reed Richards in a taffy puller by considering minute details in order to give deference, especially to police officers.

          1. It also isn’t supposed to be based on what someone intimately familiar with law would know but on a reasonable person. A faulty assumption, but it’s the entire reason we have it.

            Sure. But it doesn’t seem to be based on a “reasonable person” either. We’ve seen lots of cases where no reasonable person could think it was OK to do what the officer did, yet QI comes in because there was no case law forbidding the behavior. In other words, I don’t see the reasonable person standard being applied.

      2. QI is not just whether or not the bad actor is punished, but it also determines whether the harmed person may recover.
        These should be separated at the least. Whether or not the officer can convince the court that he is personally liable, the harm must be assessed. If a person’s rights are violated then that person must be made whole again.

    2. Only if a court rules that the action violated the Constitution before granting QI, as they should be required to do.

      1. Yes, they should be required to do that, but of course, the circuit courts bend over backwards to avoid doing it.

  6. Isn’t the issue somewhat academic; won’t every state entity respond by indemnifying their employees?

    1. Does indemnification include immunity from criminal charges, or does it just pay the legal bills?

      1. I’d assume legal bills and civil judgments. W.r.t. criminal charges, government officials are presumably protected by prosecutor discretion and presumption of innocence, just like anyone else.

      2. Qualified Immunity only applies in civil suits, not against a criminal prosecution, assuming of course, you can find a prosecutor willing to go to the wall to prosecute a cop for misconduct.

    2. Why would that make the issue academic?

  7. re: “Isn’t the issue somewhat academic”

    Not at all. Under qualified immunity, the victim gets no day in court. Under qualified immunity, the victim also gets no compensation. Under indemnification, the victim gets both.

    Also under indemnification, the state entity feels at least some of the economic pain of their employee’s misdeeds. Granted, they may pass that pain along to the taxpayers (they usually do) but with the right set of facts, the taxpayers might get fed up and force a change to the indemnification rules. It at least provides a path to accountability – something that qualified immunity forecloses.

    1. Hmm. Under present law, I thought the victim sill had a cause of action against the government for damages caused by the officials’ actions. You don’t get punitive damages, but are still compensated theoretically.

      If they don’t (de jure or de facto), then you’re right; it would be a big change.

      1. “…I thought the victim sill had a cause of action against the government for damages…”

        You can’t generally recover money damages against states under the 11A. Only prospective, injunctive relief (except where waived).

      2. “…I thought the victim sill had a cause of action against the government for damages…”

        You can’t generally recover money damages against states under the 11A. Only prospective, injunctive relief (except where waived).

      3. States are mostly immune from money judgments.


        2. Insurance companies cover liability in a manner similar to errors and omission policies with excess coverage policies. There is not a lack of money buckets to go after.

  8. If qualified immunity gets eliminated, people will start asking questions about absolute judicial immunity.

    So, qualified immunity stays.

    1. Talking about that one can get you in trouble around here

  9. Now that we’ve straightened out authorship, I’d like to say I hope Professor Schwartz is soon cited in a majority SCOTUS opinion

  10. I have the impression, I don’t know why, that the reason that QI became such a big issue is that the Warren Court greatly expanded Constitutional rights in many areas, sometimes overturning established precedents. So it was thought unfair to hold a govt actor responsible for violating rights that had only been discovered a year ago by the Warrent Court, and which had been held for decades not a federal right.

    Perhaps QI should be limited to such situations — where established law at the time is that something is not a right and then that gets overturned.

    As opposed to, say, where the general principles are established, but the exact fact situation has not come up.

  11. While qualified immunity may be securing greater scope and protection from the Robert’s court, there is a contravening nonlegal “remedy” that is increasing. Municipalities are agreeing to larger and larger settlements and in many instances agreeing to payouts before there has been an adjudication of the facts. There is public pressure for the municipalities to cut their losses and just settle the matter by writing a check. This is the same rationale behind corporations settling litigation by writing a check even if they feel they would ultimately win in court. They would lose in the court of public opinion and that costs more in sales, revenue, etc.

    In past decades I represented sheriffs and wardens. There are some Section 1983 claims that make you scratch your head. A district court found that pay phones, a non-regulation basketball court and hairline cracks in the court constitute a colorable claim for cruel and unusual punishment.

  12. Ultimately, it is the voters who are to blame for qualified immunity (and for absolute immunity for judges and prosecutors).

    Voters are to blame because most of them are obsequious little sycophants who fantasize about having a gun and a badge so they can go around killing with impunity.

    1. I’d love to hear your thought process on this one.

  13. If QI goes away, police and prosecutors will buy insurance, and will be reimbursed by the taxpayers. This will result, ultimately, in the insurance companies dictating law enforcement policies, i.e., radical reductions in arrests and prosecutions. A good deal for a plaintiffs lawyer living in a gated community, not so great for the rest of us.

    1. Ridiculous. The idea that the public is in danger because cops won’t be able to get away with beating the crap out of a suspect with a bat for no reason because the court hadn’t yet ruled it illegal to do it with that particular weapon is a joke.

  14. I think that the complexity of the decisions that we ask police to make tends to be overlooked.


    Not only is the call often difficult to make, but without QI police will get nuisance suits even if they get it right, and will be liable if the issue closely splits judges on the issue. That is, if, after the incident, every judge looking at the conduct thinks it is lawful, but it goes all the way to a higher appellate court where a bare majority of judges think that the conduct is unlawful.

    Basically, you are going to get Baltimore nationwide.

  15. What a great article. I’ve long opposed QI due to the lack of protections it gives to citizens, and turning justice on its head. Can’t want to read the rest of the series.

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