The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

How to Qualify Qualified Immunity

Exploring the reach of the “fair notice” rationale.


Qualified immunity is a beleaguered doctrine, and for good reason. The doctrine protects government officials from suits for money damages when they violate the Constitution in a way that was not "clearly established" at the time. In some cases, this leaves victims of official misconduct without compensation and vindication. The Supreme Court has said that the doctrine is necessary to prevent the threat of liability from deterring officials from zealously enforcing the law, but a series of empirical studies cast doubt on the assumptions underlying that rationale. So, what's the justification for the doctrine?

In a new law review article, The Fair Notice Rationale for Qualified Immunity, forthcoming in the Florida Law Review, I explore another rationale the Supreme Court has traditionally offered for qualified immunity: fair notice to officers. The Court has claimed that it would be unfair to hold officers liable for conduct that was not clearly unconstitutional at the time. This rationale tracks an intuitive notion: we ordinarily think it is unfair to punish someone when they could not have known their conduct was forbidden. But this intuition has been underexplored as applied to qualified immunity. My paper explores the conceptual foundations of the fairness rationale to see whether it actually supports qualified immunity—in its current form or, perhaps, in a different one.

This week, in a series of blog posts, I will discuss my findings and their implications for qualified immunity and, more tentatively, for some other legal doctrines. In short, based on the view of fairness I present in the article, the current form of the doctrine of qualified immunity overprotects officials. The fairness rationale supports limits on unpredictable constitutional liability, but the current doctrine protects officials in many cases where they could have easily predicted liability, either because they acted with bad intent, or because a reasonable person would have known that an existing legal rule would have applied to the officer's conduct. On the other hand, and more tentatively, the paper's fairness analysis suggests that some civil and criminal defendants, in some cases, may deserve more protection from unpredictable liability.

Before I present my case, it is worth noting what my paper is not about.

[1]. The paper is not only about police and corrections officers. Cases involving excessive force or cruel incarceration conditions naturally raise the most concern about qualified immunity, but they are not the only cases to which the doctrine applies: virtually any official who is exercising discretion in an executive capacity is entitled to qualified immunity to a suit for damages.

It is worth understanding the full range of cases to which qualified immunity applies before exploring its theoretical foundations, so here is a brief primer. The Supreme Court has held that some officials—those acting in a legislative or judicial capacity—are entitled to absolute immunity. A judge, juror, prosecutor engaged in criminal charging, or legislator making laws—are of them all completely immune from damages liability—even when they deliberately violate the Constitution in a way that results, for instance, in a defendant's incarceration.

Every other officer is entitled to qualified immunity—they may be sued for damages only when a reasonable person would have known their conduct violated the Constitution. This includes police and corrections officials, but it includes far more than them: public school board members, principals, and teachers; department heads and line employees of administrative agencies, from welfare to parks to health and safety; even judges and legislators acting in an executive capacity, for instance, when they make employment decisions about staffers and clerks. Qualified immunity protects not only the police officer who shoots at a nonthreatening dog but misses and accidentally hits a child. It also protects the bureaucrat who declines to include a religious school in the state's tax credit policy based on a fair reading of a state constitutional rule that is later found by the U.S. Supreme Court to violate the claimant's US constitutional rights. In other words, qualified immunity protects all manner of workaday executive employees from bearing the costs of constitutional change.

[2.] The paper does not defend or evaluate the "overdeterrence" rationale for qualified immunity. The Court has long said the doctrine would prevent the chilling of executive law enforcement caused by the threat of liability. This is—at least in principle—an empirical question, one that some scholars have explored. For purposes of evaluating and proposing changes to qualified immunity, my paper proceeds as though the doctrine depends exclusively on the fairness rationale.

[3.] The paper does not evaluate whether the doctrine is a "lawful" construction of federal law—it takes the authority of both Congress and the Supreme Court to articulate and reform the doctrine for granted. William Baude has argued that the doctrine is not a defensible understanding of federal statutory or common law, and that, therefore, the Supreme Court made it up. Justice Clarence Thomas has shown interest in this position. Scholars have disagreed with Baude's historical and legal analysis (at least here and here). (See Baude's response to the history here.) My paper takes the doctrine's lawfulness for granted—it is deeply entrenched and most of the justices show no interest in abandoning it. The Court or Congress could, however, reform it—and they should, along the lines my paper suggests.