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Abstract

If the Court did find an appropriate case to reconsider qualified immunity, and took seriously available evidence about qualified immunity’s historical precedents and current operation, the Court could not justify the continued existence of the doctrine in its current form. Ample evidence undermines the purported common-law foundations for qualified immunity. Research examining contemporary civil rights litigation against state and local law enforcement shows that qualified immunity also fails to achieve its intended policy aims. Qualified immunity does not shield individual officers from financial liability. It almost never shields government officials from costs and burdens associated with discovery and trial in filed cases. And it appears unnecessary to encourage vigorous enforcement of the law.

The Court could, alternatively, overhaul or eliminate qualified immunity because—as Justice Sotomayor has observed—its application all too often “renders the protections of the Fourth Amendment hollow.” Although few cases are dismissed on qualified immunity grounds, multiple aspects of the doctrine—including its disregard of officers’ bad faith, exacting requirements to clearly establish the law, and license to courts to grant qualified immunity without ruling on the underlying constitutional claims—hamper the development of constitutional law and may send the message that officers can disregard the law without consequence. The fact that qualified immunity doctrine fails to protect government officials from financial liability or other burdens of suit makes the doctrine’s imbalance between government and individual interests especially concerning and unwarranted.

If a majority of the Court is convinced by one or more of these arguments, they should restrict or do away with the qualified immunity defense altogether. In fact, five of the Justices currently on the Court have authored or joined opinions expressing sympathy with one or more of these arguments. Why, then, has the Court continued so vigorously to apply the doctrine, often in unanimous or per curiam decisions? In my view, the most likely explanation is that Justices fear eliminating or restricting qualified immunity would alter the nature and scope of policing or constitutional litigation in ways that would harm government officials and society more generally. For reasons that I will describe elsewhere, I believe there would be no parade of horribles were qualified immunity eliminated. But even if the Court does not find my assurances to be convincing, unsubstantiated fears about the future are insufficient reason to maintain a doctrine unmoored to common-law principles, unable or unnecessary to achieve the Court’s policy goals, and unduly deferential to government interests. The Justices can end qualified immunity in a single decision, and they should end it now.

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