Qualified immunity regularly shields government officials from monetary
liability when they violate others’ constitutional rights. Even if an innocent per-
son has suffered serious damages, the officer will not have to pay any money
unless the right was “clearly established” at the time of the violation.
And for a
right to be clearly established, “existing precedent must have placed the statutory
or constitutional question beyond debate” such that “every ‘reasonable official
would [have understood] that what he is doing violates that right.’”
In this way,
when it comes to officials who violate federal rights, qualified immunity shelters
“all but the plainly incompetent or those who knowingly violate the law.”
Accordingly, in light of qualified immunity, violations of federal civil rights regu-
larly go without a federal remedy.
As one might imagine from this Article’s opening paragraph, qualified im-
munity has long been controversial.
Yet the intensity of the criticism has
markedly increased in recent years. Indeed, Justices Clarence Thomas and
Sonia Sotomayor—an unlikely duo—have urged the Court to revisit qualified
And in the lower courts, Judge Don Willett (appointed by
President Trump) and the late Judge Stephen Reinhardt (appointed by
President Carter)—perhaps an even more unlikely duo—have bemoaned that
qualified immunity lets “untold constitutional violations slip” through the
and imposes “drastic new restrictions on finding civil liability.”
1. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
2. Ashcroft v. al-Kidd, 563 U.S. 731
, 741 (2011) (alteration in original) (quoting Anderson v.
. at 743 (quoting Malley
v. Briggs, 475 U.S. 335
4. See, e.g., Camreta v. Greene, 563 U.S. 692, 697–98 (2011) (explaining that the lower court found a
constitutional violation but nonetheless denied relief because of qualified immunity); Safford Unified
Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 368 (2009) (holding that strip-searching students can be
unconstitutional but awarding immunity to the government official); Aaron L. Nielson & Christopher J.
Walker, The New Qualified Immunity, 89 S. CAL. L. REV. 1, 33–38 (2015) (providing data).
5. See, e.g., David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial
Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23, 77 (1989) (“Requiring a
plaintiff to demonstrate that the law was clearly established . . . immunizes serious governmental
misconduct.”); Erwin Chemerinsky, How the Supreme Court Protects Bad Cops, N.Y. TIMES (Aug. 26,
2014), https://www.nytimes.com/2014/08/27/opinion/how-the-supreme-court-protects-bad-cops.html (arguing
that qualified immunity is unfair and dangerous).
6. See, e.g
., Kisela v. Hughes, 138 S. Ct. 1148
, 1162 (2018) (Sotomayor, J., dissenting) (arguing that
the Supreme Court’s approach to qualified immunity “tells officers that they can shoot first and think
later”); Ziglar v. Abbasi, 137 S. Ct. 1843
, 1871 (2017) (Thomas, J., concurring in part and concurring in
the judgment) (“In an appropriate case, we should reconsider our qualified immunity jurisprudence.”);
see also JOHN PAUL STEVENS, SIX AMENDMENTS: HOW AND WHY WE SHOULD CHANGE THE
CONSTITUTION 106 (2014) (urging a constitutional amendment barring a “state officer [from receiving]
an immunity from liability for violating any act of Congress, or any provision of th[e] Constitution”).
7. Cole v. Carson, 935 F.3d 444
, 471 (5th Cir. 2019) (Willett, J., dissenting); see also
Robinson, 928 F.3d 457
, 479 (5th Cir. 2019) (Willett, J., dissenting in part) (arguing that “qualified
immunity smacks of unqualified impunity”).
8. Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The
Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and
Some Particularly Unfortunate Consequences, 113 MICH. L. REV. 1219, 1222 (2015).
2020] QUALIFIED IMMUNITY AND FEDERALISM 231