Over the past two days, and in a forthcoming article excerpted here, I have argued that qualified immunity doctrine cannot be justified by its supposed common law roots, or its more recent policy justifications. The Supreme Court might alternatively decide to eliminate or limit qualified immunity doctrine because, in Justice Sotomayor's words, it "renders the protections" of the Constitution "hollow." Although qualified immunity is the reason few Section 1983 cases against law enforcement are dismissed, the Court's qualified immunity decisions have nevertheless made it increasingly difficult for plaintiffs to show that defendants have violated clearly established law, and increasingly easy for courts to avoid defining the contours of constitutional rights.

When qualified immunity was first announced by the Supreme Court in 1967, it was described as a good faith defense from liability. For the next fifteen years, defendants seeking immunity were required to show both that their conduct was objectively reasonable and that they had a "good faith" belief that their conduct was proper. But, in 1982, the Court eliminated the subjective prong of the defense, entitling a defendant to qualified immunity so long as he did not violate "law [that] was clearly established at the time an action occurred."

The Court's definition of "clearly established" law has narrowed significantly over the past thirty-five years. Although the Court once held that a plaintiff could defeat qualified immunity by showing an obvious constitutional violation, the Court's subsequent decisions have required that plaintiffs point to "controlling authority in their jurisdiction" or a "consensus of cases of persuasive authority." In its most recent decisions, the Court has only been willing to assume arguendo that circuit precedent or a consensus of cases can clearly establish the law—suggesting that Supreme Court precedent is the only surefire way to clearly establish the law.

Moreover, the Supreme Court's qualified immunity decisions require that the prior precedent clearly establishing the law have facts exceedingly similar to those in the instant case. Although the Court has repeatedly assured plaintiffs that it "'do[es] not require a case directly on point' for a right to be clearly established," it has also repeatedly cautioned that "'clearly established law' should not be defined 'at a high level of generality.'" Indeed, the Court has stated—and regularly restated—that government officials violate clearly established law only when "'[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would [have understood] that what he is doing violates that right.'" The challenge of identifying clearly established law is heightened further by the Court's decision in Pearson v. Callahan, which allows courts to grant qualified immunity without first ruling on the constitutionality of a defendant's behavior.

Taken together, the Court's qualified immunity decisions have created a vicious cycle. The Supreme Court has instructed lower courts that they must grant qualified immunity unless they can find a prior Supreme Court decision, binding precedent, or a consensus of cases in which "an officer acting under similar circumstances" has been found to have violated the Constitution. Yet the Court has also advised lower courts that they can grant qualified immunity without ruling on plaintiffs' underlying constitutional claims—reducing the frequency with which lower courts announce clearly established law. And the Supreme Court is among the worst offenders on this score; although the Supreme Court has suggested in recent decisions that it may be the only body that can clearly establish the law for qualified immunity purposes, it repeatedly grants qualified immunity without ruling on the underlying constitutional claim. By simultaneously allowing courts to decide qualified immunity motions without reaching the underlying constitutional questions and requiring plaintiffs to produce circuit or Supreme Court opinions finding constitutional violations in cases with nearly identical facts, and by ignoring available evidence of officers' culpable intent, the Court perpetuates uncertainty about the contours of the Constitution and sends the message to officers that they may be shielded from damages liability even when they act in bad faith.

These criticisms of qualified immunity may appear to sit in some tension with my finding that filed cases are rarely dismissed on qualified immunity grounds. If qualified immunity is the reason that less than 4% of filed cases are dismissed, can it render the protections of the Constitution hollow? Unfortunately, the answer is yes. Qualified immunity doctrine imperils government accountability in several ways, even as it is the reason few cases are dismissed.

First, as Justice Sotomayor has explained, the Supreme Court's flurry of recent decisions granting qualified immunity—even to officers who have acted unreasonably or in bad faith—suggest to officers that they can act with impunity. As Justice Sotomayor has written, an opinion like Kisela "tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished." The Supreme Court's decisions can send this message to police and the public regardless of how many decisions are dismissed on qualified immunity grounds in the lower courts.

Second, qualified immunity doctrine may discourage some people from bringing cases when their constitutional rights are violated. The Supreme Court's decisions send the message to plaintiffs' attorneys that even Section 1983 cases with egregious facts run the risk of dismissal on qualified immunity grounds, and encourage defense counsel to raise qualified immunity at every turn and immediately appeal district court decisions denying their motions. These dynamics likely increase the cost, complexity, and delay associated with litigating Section 1983 cases. Although my research indicates that some attorneys are not dissuaded by the costs and risks associated with qualified immunity, the doctrine discourages other attorneys from taking cases—particularly cases involving novel or ill-defined constitutional rights and cases with low damages. Qualified immunity can play this role in constitutional litigation while still being the reason few filed cases are dismissed.

Third, decisions allowing courts to grant qualified immunity without ruling on the underlying constitutional claims may compromise police departments' policies and trainings. Many law enforcement agencies' policies and trainings hew closely to Supreme Court and circuit decisions. When the Supreme Court and circuit courts issue opinions announcing new constitutional rights—or clarifying that rights do not exist—law enforcement agencies modify their policies and trainings to conform to those opinions. But when the Supreme Court suggests that only its decisions can clearly establish the law, and then repeatedly grants qualified immunity without ruling on the underlying constitutional questions, law enforcement agencies have little in the way of guidance about how to craft their policies.

If qualified immunity doctrine effectively shielded government officials from burdens associated with litigation in insubstantial cases, one might justify these impositions on government accountability as a necessary evil. But the Court's qualified immunity jurisprudence threatens to undermine government accountability in each of these ways without meaningfully achieving its goals of shielding government defendants from financial exposure and shielding officials from litigation burdens when they act reasonably. The failure of qualified immunity to achieve its intended policy goals makes its negative impact on government accountability indefensible.