This Essay describes, critiques, and attempts to reform the role of fault in the defense of qualified immunity. It first argues, in Part I, that the defense does not properly assess fault because it immunizes persons who are at fault and holds liable persons who are not. The chief cause of this problem is that the defense is focused on an exceedingly narrow source of law: appellate judicial opinions. Appellate opinions are, not surprisingly, rarely read by government officers and, even when their substance is communicated to officers, they only comprise one of many factors that affect the blameworthiness of an officer.

Given that fault can often be assessed outside the context of appellate judicial opinions, the Essay then begins to sketch in Part II two different ways in which this assessment could occur. Neither approach, however, is fully satisfying. One approach would be to base qualified immunity on an officer’s adherence to clearly established state law as well as federal law. This approach is appealing because it embraces clearly established law from multiple sources and dispenses with the unrealistic assumption that our sense of fault is only tied to appellate judicial opinions addressing federal constitutional law. Yet this approach is also troublesome because it still leaves fault incompletely assessed in certain cases. Additionally, the approach will be difficult to implement and impinge on traditional state prerogatives regarding the maintenance and operation of state law.

Given the problems with this approach, the Essay takes up another alternative in Part III. Under this approach, an officer’s immunity from damages in a constitutional tort action would turn on her actual knowledge of federal unconstitutionality or her compliance with the standard of care prevailing in the officer’s department or agency. This approach is attractive because it more closely tracks the blameworthiness of the officer as traditionally understood in criminal and tort law. In addition, the approach is attractive because it may create strong incentives for departmental self-assessment and reform. Yet this approach is also flawed in that it may also create incentives cutting in the other direction—such as incentives to cut back on policy and training. Another problem with this approach is that its benefits will mostly be confined to constitutional tort actions against state officers working for local governments. When it comes to officers working for the state-wide agencies and the federal government, the benefits may not apply with equal force.

Given that neither of these two approaches to reforming qualified immunity is sufficiently compelling, I briefly explain in a conclusion that, however qualified immunity might be reformed (or even if it remains the same), the perceived fault (or lack of fault) of the officer can never support the entire defense without sacrificing instrumental goals or causing other problems. The task facing reformers, therefore, is how to balance the law’s traditional concern with fault against policy concerns that inevitably invade any body of judge-made law.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.