Skip navigation
Disciplinary Self-Help Litigation Manual - Header
× You have 2 more free articles available this month. Subscribe today.

Three Reasons Why the Supreme Court Should Eliminate the Doctrine of Qualified Immunity

by Christopher Zoukis

It is a rare issue of Criminal Legal News that does not include an article relating in some way to the doctrine of qualified immunity. The doctrine, which grants police officers and other government officials immunity from civil liability in certain circumstances, rears its ugly head in virtually every case in which a citizen was beaten, tased, run over, shot, or otherwise brutalized by a cop.

Some legal commentators say it’s time to do away with this powerful protection, which allows law enforcement officers to hurt people and get away with it. In a article, Joanna Schwartz made a three-prong argument as to why it is time to cancel qualified immunity.

Qualified immunity shields government officials from civil liability for their actions unless they violate a federal statutory or constitutional right and the unlawfulness of their conduct was clearly established at the time. District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).

The doctrine was first announced by the Supreme Court in Pierson v. Ray, 386 U.S. 547 (1967). There, the Court said the common law “defense of good faith and probable cause” is available to officers in an action brought under 42 U.S.C. § 1983. As her first point, Schwartz contends that “history does not support the Court’s claim about qualified immunity’s common law foundation.”

This is because, Schwartz says, when the Civil Rights Act of 1871 (which authorized § 1983 claims) became law, the common law did not offer government officials a good faith defense to civil liability. Schwarz is in good company here; Supreme Court Justice Thomas has criticized the qualified immunity doctrine for bearing little resemblance to the common law in existence at the time the Civil Rights Act of 1871 was enacted. Indeed, Justice Thomas has gone as far as recommending that “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.”

In addition to being far afield from the state of the common law in 1871, Schwartz argues that “today’s qualified immunity doctrine bears little resemblance to the protections announced in Pierson.” In other words, even if the protections provided by the Supreme Court in Pierson were grounded in common law, the current state of the qualified immunity doctrine definitely is not. Two significant developments in qualified immunity jurisprudence illustrate this point: (1) consideration of an officer’s subjective intent has been replaced with a focus on whether the conduct was objectively unreasonable (a more difficult standard for plaintiffs) and (2) plaintiffs seeking to establish objective unreasonableness are now required to find binding precedent from a case or cases involving very similar fact situations in order to proceed.

Because it is fairly clear that qualified immunity really doesn’t extend from common law, the Supreme Court tends to defend it as, in Schwartz’s words, “an instrument to achieve various policy goals—protection from personal liability, protection from the burdens of discovery and trial in insubstantial cases, and protection against the threat of overdeterrence of officers on the job.”

Schwartz’s second argument is that the qualified immunity doctrine fails to serve those policy goals. Looking at a variety of data, Schwartz found that state and local law enforcement officers are almost never required to pay anything towards civil judgments entered against them. As such, qualified immunity is not necessary to protect officers from personal liability—they don’t pay anyway, even when they lose.

Schwartz further argues that the qualified immunity doctrine fails to protect against the “burden” of discovery and trial. Out of 1,183 lawsuits filed against police officers over a two-year period in five federal districts, Schwartz found that fewer than one percent were dismissed on qualified immunity grounds prior to discovery, and just 3.2 percent were dismissed before trial on qualified immunity grounds.

The doctrine also fails to filter out insubstantial cases prior to filing—Schwartz found that while lawyers in this practice area do consider qualified immunity prior to filing, it is one of several factors, and not the most significant. And while the doctrine may not effectively filter out insubstantial cases, it is very likely that the doctrine does filter out substantial cases. This is because lawyers know that no matter how egregious the factual situation, if the violation is not clearly defined by a previous case, they may lose on qualified immunity grounds.

Perhaps most importantly, Schwartz found that it is highly unlikely that the qualified immunity doctrine protects against the overdeterrence of police on the job. Studies have found that cops are generally not thinking about the threat of a lawsuit while working.

“Regardless of how ‘unflinching’ one believes an officer should be in the ‘discharge of their duties,’” writes Schwartz, “the threat of being sued appears to play little role in … officers’ decisions on the street.”

Schwartz’s final argument is that the qualified immunity doctrine should be eliminated or limited because in its current form, the doctrine makes it extremely difficult for plaintiffs to establish a violation of constitutional law, and it allows courts to avoid “defining the contours of constitutional rights.” Schwartz is again in good company here; U.S. Supreme Court Justice Sotomayor has said that the qualified immunity doctrine “renders the protections” of the Constitution “hollow.”

There are two reasons why the qualified immunity doctrine fails to honor the Constitution. First, the Supreme Court has significantly narrowed the definition of “clearly established” over the last four decades. Plaintiffs are now required to point to controlling authority that established a right in such a way that every “reasonable official would [have understood] that what he is doing violates that right.”

Second, lower courts are now permitted, and perhaps even encouraged, to grant qualified immunity without considering the constitutionality of the defendant’s behavior. Without clearly established law that specifically says that what the defendant did is unconstitutional, a plaintiff’s case can be dismissed.

Taken together, these two elements of qualified immunity jurisprudence create, in Schwartz’s words, “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,” writes Schwartz. “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.”

“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,” continues Schwartz.

Schwartz concludes by noting that even though qualified immunity appears to be a relatively rare cause of dismissal, its continued existence “imperils government accountability.” For one, the current state of the doctrine suggests to officers that they can act with impunity. The doctrine may also discourage plaintiffs from bringing suit—even when their constitutional rights have been violated. Current qualified immunity procedures also have the unintended consequence of compromising police departments’ policies and training. Such policies and training are often informed by legal decisions relating to constitutional rights, and when courts are encouraged to avoid ruling on underlying constitutional questions, the necessary guidance is not provided.

Schwartz makes a convincing case that it is past time to limit or eliminate the qualified immunity doctrine. 


As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login



Disciplinary Self-Help Litigation Manual - Side
Advertise here
Disciplinary Self-Help Litigation Manual - Side