Qualified Immunity: Time to Change the Message


Staff member
Mar 20, 2019
Qualified Immunity: Time to Change the Message

This article examines and criticizes the Supreme Court’s current “love affair” with the doctrine of qualified immunity, a doctrine that has become the “darling” of many of the Justices, a doctrine that is inching closer to an absolute, rather than a qualified, protection from damages liability for public officials who commit constitutional violations. Both judicial and scholarly attacks on the doctrine have appeared with increasing frequency and intensity. The Court’s policy-driven qualified immunity approach has stifled the development of constitutional standards, provided unnecessary protection from liability to officers who are indemnified for their wrongdoing in the overwhelming majority of cases, created a confusing and divisive debate about what constitutes “clearly established law,” and has imposed substantial burdens and costs on the litigation of civil rights claims. This piece takes aim at three recurrent and especially problematic byproducts of the doctrine’s application: First, the doctrine serves to impede the development of constitutional law and prevent the redress of constitutional wrongs. Second, litigating the doctrine results in draining resources of litigants and courts through interlocutory appeals that are frequently without merit and often jurisdictionally suspect. Third, the doctrine breeds confusion into the roles of the judge and the jury in our judicial system, effectively enhancing the judge’s role at the expense of the constitutional right to jury trial. While suggestions are offered for ameliorating the problems described, ultimately the view of the author is that the best way to fix the doctrine is to make it irrelevant. Correcting the Court’s error in Monell and recognizing that respondent superior was part of the original scheme would be a good first step towards changing the message that has now become one of “unqualified immunity.”



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