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Qualified immunity

Qualified immunity is a legal doctrine in United States federal law that shields government officials from being sued for discretionary actions performed within their official capacity, unless their actions violated "clearly established" federal law or constitutional rights.[1] Qualified immunity thus protects officials who "make reasonable but mistaken judgments about open legal questions",[2] but does not protect "the plainly incompetent or those who knowingly violate the law".[3]

History and backgroundEdit

Bivens and 42 USC § 1983 lawsuitsEdit

Qualified immunity frequently arises in civil rights cases,[4] particularly in lawsuits arising under 42 U.S.C § 1983 and Bivens v. Six Unknown Named Agents.[5] Under 42 U.S.C § 1983, a plaintiff can sue for damages when state officials violate her Constitutional rights or other federal rights. The text of 42 U.S.C. Sec. 1983 reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ...[6]

Similarly, under Bivens v. Six Unknown Named Agents, plaintiffs may sue for damages if federal officials violate their Constitutional rights. However, not all Constitutional violations give rise to a Bivens cause of action.[7] Thus far the Supreme Court has recognized Bivens claims for violations of the Fourth Amendment,[5] the Fifth Amendment's equal protection component of due process,[8] and the Eighth Amendment.[9]

History of qualified immunityEdit

The modern test for qualified immunity was established in Harlow v. Fitzgerald.[10][11]

Prior to Harlow v. Fitzgerald, the U.S. Supreme Court granted immunity to government officials only if (1) the official believed in good faith that his conduct was lawful and (2) the conduct was objectively reasonable.[11] However, determining an official's subjective state of mind (i.e. did he have a good faith belief that his action was lawful) required a trial, often by jury.[11] Concerned allowing suits to go this far deterred officials from performing their duties, "[diverted] official energy from pressing public issues, and [deterred] able citizens from acceptance of public office",[12] the Supreme Court handed down the current rule for qualified immunity: "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."[13] Therefore, the application of qualified immunity no longer depends upon an official's subjective state of mind, but on whether or not a reasonable person in the official's position would have known their actions were in line with clearly established legal principles.

Application of qualified immunityEdit

Discretionary function requirementEdit

Qualified immunity only applies to acts that are "discretionary" rather than ministerial.[13] Courts specifically distinguish discretionary acts from ministerial acts.[14] A discretionary act requires an official to determine "whether an act should be done or a course pursued" and to determine the best means of achieving the chosen objective.[15] By contrast, a ministerial act is "clerical nature"—the official is typically required to perform the action regardless of his own opinion.[15] However, even ministerial tasks will sometimes involve a small amount of discretion but this small amount of discretion will not necessarily satisfy the requirements qualified immunity.[16]

Clearly established law requirementEdit

Qualified immunity does not protect officials who violate "clearly established statutory or constitutional rights of which reasonable person would have known".[13] This is an objective standard, meaning that the standard does not depend on the subjective state of mind of the official but rather on whether a reasonable person would determine that the relevant conduct violated clearly-established law.[17]

Whether the law is "clearly established" will depend on whether the case law has addressed the disputed issue or has established the "contours of the right" such that it is clear that official's conduct is illegal.[18] It is undisputed that Supreme Court opinions can "clearly establish" the rule for the entire country. However, circuit court of appeals opinions may have a more limited effect. Circuit courts of appeals typically treat their opinions as clearly establishing the law within that circuit[19]—though the Supreme Court has cast doubt on this theory.[20] In order to meet the requirement of "Clearly Establilshed Law", the facts of the instant case must also fairly closely resemble the facts of the case relied on as precedent.[21][22]

Judicial application: The Saucier two-step testEdit

In 2001, the US Supreme Court in Saucier v. Katz[23] established a rigid order in which courts must decide the merits of a defendant's qualified immunity defense. First, the court determines whether the complaint states a constitutional violation. If so, the next sequential step is to determine whether the right at issue was clearly established at the time of the official's conduct. The Court subsequently modified Saucier in Pearson v. Callahan, holding that "the Saucier protocol should not be regarded as mandatory in all cases,"[24] and that its decision "does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases" [25]

Objections and criticismsEdit


The invention of "qualified immunity" has eliminated much of the protection of the constitution under USC 42 § 1983. It is almost always possible for a judge to claim there isn't an exact match in law and precedent, if sufficiently determined.

The court has claimed to based qualified immunity on three factors: a "good faith" defense at common law, making up for the supposedly mistaken broadening of § 1983, and serving as a "warning" to government officials. But William Baude, Professor of Law at the University of Chicago Law School, states that "there is no such defense, there was no such mistake, and lenity [warning] should not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response."[27]

In fact, a century earlier the Supreme Court specifically rejected "good faith" as a defense against § 1983, which held until the invention of qualified immunity in 1967.[citation needed]


Conversely, in How Qualified Immunity Fails, Joanna C. Schwartz of The Yale Law Journal published paper that produced a different criticism of qualified immunity. Examining 1,183 Section 1983 cases, she found that it was being invoked primarily when it should not have been, and therefore was being ignored or dismissed frequently. Her conclusion was that it is ineffective for its stated goals in such a way that it could not be strengthened, and should be replaced by other mechanisms for obtaining those ends.[28]

In August 2018, Circuit Judge Don Willett concurred dubitante when the United States Court of Appeals for the Fifth Circuit found that the Texas Medical Board was entitled to qualified immunity for an unconstitutional warrantless search it made of a doctor's patient records.[29] He wrote:

Even on the Supreme Court, both the right and left have objected. Clarence Thomas has expressed "growing concern with our qualified immunity jurisprudence", stating that there is no apparent basis for it in the original intent of the law. Justice Sonia Sotomayor has noted a "disturbing trend" of siding with police officers using excessive force, with qualified immunity[32] describing it as “sanctioning a ‘shoot first, think later’ approach to policing”.[33]

Rule of lawEdit

Although qualified immunity has been repeatedly affirmed as Federal precedent, and although legislation has established similar immunity at the state level, no Federal statute explicitly grants any such immunity, and its source in common law is unclear. Critics have therefore taken the view that the adoption of the doctrine of qualified immunity in Federal law represents judicial activism[27].

Furthermore, the "clearly established law" test is typically read as requiring that a determination of law have been made in actual litigation under facts extremely close to those of a case at hand (see also § "Vagueness"). Critics argue [35] that officials therefore have undue latitude for lawless conduct in new or unusual situations.

Critics further argue[35] that the "clearly established" standard discourages and/or delays the establishment of clear rules even for common circumstances. The first litigant to bring a case against an official under a given set of facts is likely to lose, because there is as yet no clearly established standard. Therefore, such a person may not choose to bring the case at all. Furthermore, even if a case is brought and carried to judgement, there is no certainty the decision will establish a clear and generally applicable legal standard. Until such a standard is articulated, qualified immunity will continue to apply in analogous cases.

Relevant casesEdit

See alsoEdit


  1. ^ 63C Am. Jur. 2d Public Officers and Employees § 314-15.
  2. ^ Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
  3. ^ Malley v. Briggs, 475 U.S. 335, 341 (1986).
  4. ^ See 63C Am. Jur. 2d Public Officers and Employees § 314.
  5. ^ a b Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
  6. ^ 42 U.S.C. § 1983.
  7. ^ Actions Against Federal Agencies and Officers, 14 Fed. Prac. & Proc. Juris. § 3655 (4th ed.)
  8. ^ Davis v. Passman, 442 U.S. 228, 245 (1979).
  9. ^ Carlson v. Green, 446 U.S. 14, 25 (1980).
  10. ^ Harlow v. Fitzgerald, 457 U.S. 800 (1982).
  11. ^ a b c III. Private Party Immunity from Section 1983 Suits, 123 Harv. L. Rev. 1266, 1267 (2010).
  12. ^ Harlow, 457 U.S. at 814.
  13. ^ a b c Harlow, 457 U.S. at 818.
  14. ^ See e.g. Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. 2011); Kennedy v. Mathis, 297 Ga. App. 295, 297, 676 S.E.2d 746, 748 (2009); Rodriguez v. State, 218 Md. App. 573, 615 (2014); Baptie v. Bruno, 195 Vt. 308, 314, 88 A.3d 1212 (2013).
  15. ^ a b 63C Am. Jur. 2d Public Officers and Employees § 318.
  16. ^ 63C Am. Jur. 2d Public Officers and Employees § 319.
  17. ^ 63C Am. Jur. 2d Public Officers and Employees § 315.
  18. ^ 63C Am. Jur. 2d Public Officers and Employees § 316
  19. ^ § 8:22. Post-Harlow qualified immunity test in the circuits and the states: applicable principles (Part I)—Whose decisions determine clearly settled law?, 2 Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 § 8:22
  20. ^ City & Cty. of San Francisco v. Sheehan, No. 13-1412, 575 U.S. ___ (2015).
  21. ^ "The Case Against Qualified Immunity, Part III" at Paragraph 4. Joanna Schwartz, Pub.2018 , The Volokh Conspiracy.
  22. ^ Pearson, et al. v. Callahan, 555 U.S. 223 (2009).
  23. ^ Saucier v. Katz, 533 U.S. 194 (2001).
  24. ^ Pearson v. Callahan, 555 U.S. 223, 818 (2009).
  25. ^ Pearson, 555 U.S. at 821.
  26. ^ Qualified Immunity – A Rootless Doctrine The Court Should Jettison
  27. ^ a b Is Qualified Immunity Unlawful?
    Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity. But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response. The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways.
  29. ^ Note, Recent Case: Fifth Circuit Holds Medical Board Investigators Are Protected by Qualified Immunity in Warrantless Search of Records, 132 Harv. L. Rev. 2042 (2019).
  30. ^ Ford, Matt (12 September 2018). "Should Cops Be Immune From Lawsuits?". The New Republic. Retrieved 25 November 2019.
  31. ^ Zadeh v. Robinson, 902 F.3d 483 (5th Cir. 2018).
  32. ^ ‘In an appropriate case, we should reconsider our qualified immunity jurisprudence’
  33. ^ Ali, Amir H. (June 20, 2019). "Qualified Immunity: Explained". The Appeal. Retrieved 2019-11-06.
  34. ^ Sotomayor sees ‘disturbing trend’ of unequal treatment regarding police, alleged victims
  35. ^ a b Wed, Sep 5th 2018 3:23am-Tim Cushing. "Appeals Court Judge: Qualified Immunity Is A Rigged Game The Government Almost Always Wins". Techdirt. Retrieved 2019-11-06.