The federal common law doctrine of qualified immunity, a key feature of American civil rights law, protects public officials from damages lawsuits unless their conduct violates "clearly established... constitutional rights of which a reasonable person would have known." (1) The Supreme Court designed the doctrine to strike a balance between the desire to permit individuals to enforce their constitutional rights by suing government officials for damages and the need to alleviate the perceived burdens on those officials and the government in responding to such claims. (2) As the rich body of literature (3) in this area illustrates, qualified immunity presents fascinating and complex legal theory questions. At the same time, disputes about its proper implementation reflect its enormous significance for practitioners in routine civil rights litigation. Indeed, it is fair to say that the doctrine has now puzzled, intrigued, and frustrated legal academics, federal judges, and litigators for half a century. (4)
This Essay offers an internal critique of qualified immunity law that explains why these problems remain intractable and why, unfortunately, there is little hope for resolution of the doctrine's central dilemmas, short of either abandoning immunity or making it absolute. (5) The Essay breaks down its discussion of qualified immunity into three distinct, but related, categories, and argues that the challenges presented within each category are difficult, if not impossible, to overcome. First, it addresses what can best be described as qualified immunity's foundational jurisprudential tensions. Embedded in the doctrine are several first-level legal theory problems that can be identified and discussed, but for which there are ultimately no "right" answers. These tensions can be seen, for example, in the operationalization of the doctrine as an open-ended reasonableness standard rather than a bright-line rule, the conceptual challenge of distinguishing pure questions of law from mixed questions of law and fact, and the appropriate level of generality at which "clearly established constitutional rights" are articulated. Indeed, as the latter question suggests, the very meaning of constitutional rights underlies all conversations about qualified immunity.
These theoretical and doctrinal tensions are, in turn, translated into real practical challenges for judges and litigators, especially at the federal district court level, who struggle to implement a doctrine that suffers from serious administrability problems. Among these problems are continuing disputes over the degree to which discovery is permissible prior to resolving immunity claims, the coherent implementation of supposedly transsubstantive summary judgment procedures, and the continuing consumption of substantial resources by the adjudication of qualified immunity claims.
Finally, the Essay addresses qualified immunity from a public policy perspective, arguing that meaningful reform of the doctrine is impeded in part because of these previously identified tensions, which as suggested are not amenable to easy resolution. Reform is also made more difficult because of insurmountable epistemological problems about how the doctrine operates on the ground. Notwithstanding the emergence of excellent, recent empirical work by several legal scholars, the doctrine likely will remain entrenched in its current form because of the Supreme Court's reluctance to consider empirical data in revising rules of constitutional enforcement coupled with Congress's lack of political will. The legal community can continue to argue about qualified immunity at the margins, but should not reasonably expect any transformation of the doctrine's basic structure over its next fifty years.
QUALIFIED IMMUNITY LAW
Damages claims against public officials are an important, though by no means the only, aspect of our constitutional enforcement scheme. (6) Such actions permit plaintiffs to be compensated for their injuries and deter public officials from engaging in unconstitutional conduct. For a number of reasons, constitutional tort claims became more widely available throughout the 1960s and 1970s. (7) This expansion in the number of claims generated increasing concerns that many of these lawsuits were frivolous and that defending them imposed both societal and individual costs.
In a series of decisions, the Supreme Court identified three categories of such costs. First, it found that imposing financial liability on officials who might not understand the nuances of constitutional doctrine, particularly when most are not legally trained, would be unfair. (8) Second, the Court argued that officials would hesitate when required to act if they were concerned that their actions could subject them to a lawsuit, thus creating a problem of "overdeterrence." (9) Finally, the Court found that, although official defendants could still prevail on the merits, even being subject to the burdens of the judicial process would cost them time, distract them from their jobs, and require them to incur litigation expenses. (10)
Thus, before having to defend a constitutional tort claim on the merits, official defendants could assert qualified immunity as an affirmative defense. The process for adjudicating qualified immunity claims was heavily dictated by the Court's identification of the problems with constitutional tort suits. To avoid the burdens of litigation, the Court established a procedure that it believed would allow disposition of immunity claims at the earliest possible stage of litigation. Thus, the Court suggested that defendants could seek resolution of their qualified immunity claims on summary judgment and that trial courts should not permit discovery prior to deciding such claims. (11) Though the Court has had to back away from that approach somewhat, as discussed below, the immunity issue is basically designed to be resolved well before trial.
The Court has also specified the appropriate legal standard for resolving qualified immunity claims. It directed that:
[T]he judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful.... If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. (12) Thus, qualified immunity operates essentially as an ignorance-of-constitutional-law defense for public officials, though that defense does not apply if the law is clearly established.
Moreover, the Court's decisions establishing qualified immunity as a federal common law defense have, for all intents and purposes, been unanimous. (13) Though the Court has decided numerous qualified immunity cases in the past decades, the basic structure of the doctrine is unchanged. (14) Rather than providing substantive development that advances the understanding of this area of the law, many of the Court's decisions in recent years merely tinker at the margins of the doctrine (15) or summarily reverse lower court decisions that are not, in its view, sufficiently protective of public officials. (16) Thus, the essential architectural features of qualified immunity law have remained quite stable, which is why the analysis in this Essay focuses on doctrine as fundamentally shaped in Harlow.
While the Court's explanations of the policy and procedure for applying qualified immunity seem reasonable on the surface, the law's implementation reflects substantial theoretical and pragmatic tensions that have remained problematic. As I discuss below, this is because these issues are largely embedded in the doctrine's architecture, making them not only problematic, but also intractable. What follows is an internal critique of the doctrine's design and administrability. By internal critique, I refer to critical analysis of the doctrine's structure within the parameters of its basic premises. (17) That is, my arguments take the legitimacy of the doctrine's premises at face value, but maintain that the doctrine creates substantial internal tensions and may sometimes even undermine its own goals. In contrast, others might level different sorts of external critiques. One example of an external critique might be from a Critical Legal Studies perspective: namely, that the doctrine is really just an instrumental tool to protect powerful government actors while providing the illusion that citizens can enforce their constitutional rights. (18) A very different type of external critique could be that the doctrine cannot be understood wholly internally because it is simply one piece of a larger question about the optimal scheme of constitutional enforcement. Two prominent and thoughtful expositors of this latter external critique are Richard Fallon and John Jeffries, who have frequently reminded us that qualified immunity must be assessed and critiqued not in isolation, but against the broader matrix of constitutional enforcement mechanisms. (19) These observations about immunity scholarship are quite insightful, and in other work I have followed that lead. (20) For the purposes of the present analysis, however, my critique remains for the most part internal, while acknowledging that immunity law is but a part of a larger remedial structure.
QUALIFIED IMMUNITY'S FOUNDATIONAL JURISPRUDENTIAL TENSIONS
H.L.A. Hart would have loved qualified immunity. One could easily imagine that his famous illustration of legal rules through a hypothetical "No Vehicles in the Park" ordinance might today be supplanted by a philosophical examination of what counts as a "clearly established...