The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law

104 Pages Posted: 9 Sep 1998

See all articles by Alan K. Chen

Alan K. Chen

University of Denver Sturm College of Law


Individuals may file damages actions against public officials who violate their constitutional rights. The Supreme Court, however, has held that officials are entitled to qualified immunity from such actions if no reasonable official would have believed their conduct violated clearly established constitutional rights. This doctrine is largely driven by the goal of minimizing the social costs of constitutional tort litigation.

This Article challenges the conventional understanding of qualified immunity, arguing that the Court has created an analytical paradox by promoting early pretrial resolution of qualified immunity claims on summary judgment, while simultaneously articulating the relevant legal directive as a reasonableness standard, which requires an inevitably fact-intensive inquiry. The Article argues that the confluence of this fact-based immunity standard and conventional summary judgment doctrine has burdened the federal courts and civil rights litigants in their comprehension and application of the doctrine in civil rights litigation. By disaggregating the distinct doctrinal components of qualified immunity and summary judgment, the Article illustrates how these two gatekeeping mechanisms create a confusing and self-contradictory doctrinal structure that makes pretrial resolution of immunity claims unlikely. Moreover, even where qualified immunity's factual nature does not entirely preclude summary resolution of constitutional tort claims, it substantially increases litigation costs, thus conflicting with the doctrine's central objective. The modest step of acknowledging qualified immunity's factual nature will lead to a clearer understanding of the doctrine and may promote a reconsideration of its benefits and burdens.

Keywords: civil rights litigation, qualified immunity, summary judgment

JEL Classification: K13

Suggested Citation

Chen, Alan K., The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law. Available at SSRN: or

Alan K. Chen (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States
303-871-6283 (Phone)
303-871-6001 (Fax)

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