INTRODUCTION 1798 I. QUALIFIED IMMUNITY HAS NO BASIS IN THE COMMON LAW 1801 II. QUALIFIED IMMUNITY DOES NOT ACHIEVE ITS INTENDED POLICY GOALS 1803 A. Qualified Immunity Does Not Shield Officers from Financial Burdens 1804 B. Qualified Immunity Does Not Shield Officers from Burdens of Litigation in Filed Cases 1808 C. Qualified Immunity Does Not Protect Against Overdeterrence 1811 III. QUALIFIED IMMUNITY RENDERS THE CONSTITUTION HOLLOW 1814 IV. ALTERNATIVE DEFENSES OF QUALIFIED IMMUNITY ARE UNPERSUASIVE 1820 A. Qualified Immunity Cannot Be Justified as a Protection for Government Budgets 1821 B. Qualified Immunity Cannot Be Justified as a Tool to Expand Constitutional Rights 1826 C. Qualified Immunity Cannot Be Justified as a Prefiling Filter 1831 V. MOVING FORWARD 1832 A. The Supreme Court 1832 B. Lower Courts 1835 CONCLUSION 1836 APPENDIX 1840 INTRODUCTION
In many ways, qualified immunity's shield against government damages liability is stronger than ever. The United States Supreme Court has made clear that qualified immunity should protect "all but the plainly incompetent or those who knowingly violate the law." (1) The Court dedicates an outsized portion of its docket to reviewing--and virtually always reversing--denials of qualified immunity in the lower courts. (2) In these decisions, the Court regularly chides courts for denying qualified immunity motions given the importance of the doctrine "to society as a whole." (3) And the Court's recent qualified immunity decisions make it seem nearly impossible to find clearly established law that would defeat the defense. (4)
But there are also cracks in qualified immunity's armor. Most recently, in his concurrence in Ziglar v. Abbasi, Justice Thomas criticized the doctrine for bearing little resemblance to the common law at the time the Civil Rights Act of 1871 became law, and for being defined by "precisely the sort of 'free-wheeling policy choice[s]' that we have previously disclaimed the power to make." (5) Indeed, Justice Thomas recommended that "[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence." (6) Much attention has been paid to Justice Thomas's call to reconsider qualified immunity doctrine in Ziglar. (7) But Justices have been raising questions about qualified immunity for decades. In 1997, Justice Breyer suggested that defendants should not be protected by qualified immunity if they are certain to be shielded from financial liability by their employer. (8) In 1992, Justice Kennedy indicated that qualified immunity doctrine might be unnecessary to shield government defendants from trial given the Court's summary judgment jurisprudence. (9) In 2015, and again in 2018, Justice Sotomayor expressed concern that the Court's qualified immunity decisions contribute to a culture of police violence. (10)
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. (11) 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. (12) It almost never shields government officials from costs and burdens associated with discovery and trial in filed cases. (13) And it appears unnecessary to encourage vigorous enforcement of the law. (14)
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." (15) 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. (16) 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. (17) For reasons that I will describe elsewhere, I believe there would be no parade of horribles were qualified immunity eliminated. (18) 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.
QUALIFIED IMMUNITY HAS NO BASIS IN THE COMMON LAW
Qualified immunity shields executive branch officials from damages liability, even when they have violated the Constitution, if they have not violated "clearly established law." (19) The Supreme Court first announced that executive officers were entitled to qualified immunity in 1967. (20) In that decision, Pierson v. Ray, the Court described qualified immunity as grounded in common-law defenses of good faith and probable cause that were available for state-law false arrest and imprisonment claims. (21) The Court in Pierson appeared to focus on common-law defenses available in Mississippi at the time the case was filed. (22) But, in subsequent cases, the Court has repeatedly explained that qualified immunity is drawn from common-law defenses that were in effect in 1871, when Section 1983 became law. (23)
Despite the Court's repeated invocation of the common law, several scholars have shown that history does not support the Court's claims about qualified immunity's common-law foundations. When the Civil Rights Act of 1871 was passed, government officials could not assert a good faith defense to liability. (24) A government official found liable could petition for indemnification and thereby escape financial liability. (25) But if a government official engaged in illegal conduct he was liable without regard to his subjective good faith. (26) Indeed, the Supreme Court expressly rejected a good faith defense to liability under Section 1983 after it became law. (27) The Court's conclusion in Pierson that a good faith immunity protected the defendant officers from liability is simply "inconsistent with the common law and many of the Court's own decisions." (28)
Moreover, even if one believed that the Court's decision in Pierson accurately reflected the common law, today's qualified immunity doctrine bears little resemblance to the protections announced in Pierson. Although qualified immunity was initially available to government officials who acted with a subjective, good faith belief that their conduct was lawful, the Supreme Court, in Harlow v. Fitzgerald, eliminated consideration of officers' subjective intent and focused instead on whether officers' conduct was objectively unreasonable. (29) Even when a plaintiff can demonstrate that a defendant was acting in bad faith, that evidence is considered irrelevant to the qualified immunity analysis. (30) The Court has repeatedly made clear that a plaintiff seeking to show that an officer's conduct was objectively unreasonable must find binding precedent or a consensus of cases so factually similar that every officer would know that their conduct was unlawful. (31) Defendants are entitled to interlocutory appeals of qualified immunity denials. (32) And qualified immunity applies to all types of constitutional claims, not only claims for which an officer's good faith might otherwise be relevant. (33) None of these aspects of qualified immunity can be found in the common law when Section 1983 became law, or in Pierson.
To its credit, the Supreme Court has long recognized that it cannot ground its qualified immunity jurisprudence in the common law. Indeed, thirty years ago, the Supreme Court acknowledged that it had "completely reformulated qualified immunity along principles not at all embodied in the common law." (34) The Court reformulated qualified immunity with a specific goal in mind--to shield government officials against various harms associated with insubstantial lawsuits. (35) In the next Part, I will show that qualified immunity is neither necessary nor particularly well suited to achieve this goal. But Justice Thomas has recently raised a more fundamental critique of the Court's turn away from the common law.
In his concurrence in Ziglar v. Abbasi, Justice Thomas writes that qualified immunity should conform to the "common-law backdrop against which Congress enacted the 1871 Act," rather than "the sort of 'freewheeling policy choice[s]' that we have previously disclaimed the power to make." (36) If four other Justices share Justice Thomas's view, then they could vote to limit qualified immunity to those defenses available at common law in 1871. (37) As...