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Qualified Immunity and Statutory Interpretation

51 Pages Posted: 7 Feb 2014 Last revised: 1 Aug 2014

Ilan Wurman

Stanford Constitutional Law Center

Date Written: February 4, 2014


Before the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable “shocks the conscience” test of the Fourteenth Amendment. Only after Graham did excessive force cases — now under the Fourth Amendment and 42 U.S.C. § 1983 — inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the next.

Part II of this Article describes the evolution of this qualified immunity doctrine and demonstrates how common law immunities were traditionally held to have been incorporated into § 1983 by the Congress of 1871 as a matter of statutory interpretation. It claims that only when the Court began hearing federal Bivens actions and created an immunity doctrine untethered from statutory interpretation, the common-law approach was lost and the modern, nearly insurmountable qualified immunity doctrine was adopted.

Part II thus establishes the historical importance of common-law interpretation to § 1983 suits. Part III then shows how differently excessive force cases would have to be treated were the court to return to the common law interpretive methods in § 1983 cases. At common law, excessive force actions were quite common and more liberal toward plaintiffs seeking redress; officers were expected to pay damages for any unnecessary force; and it was the province of the jury to determine such questions. Parts IV-V then make the theoretical case under both constitutional and statutory interpretation for replacing modern qualified immunity doctrine with a return to its common law variety in excessive-force actions, an approach that would also be far more judicially workable than the current doctrine.

Keywords: qualified immunity, excessive force, statutory interpretation, common law, 1983, civil rights statute

Suggested Citation

Wurman, Ilan, Qualified Immunity and Statutory Interpretation (February 4, 2014). Seattle University Law Review, Forthcoming. Available at SSRN:

Ilan Wurman (Contact Author)

Stanford Constitutional Law Center ( email )

559 Nathan Abbot Way
Stanford, CA 94305
United States

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