Is Qualified Immunity Unlawful?

46 Pages Posted: 11 Jan 2017 Last revised: 20 Feb 2018

See all articles by William Baude

William Baude

University of Chicago - Law School

Date Written: February 18, 2018


The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless a government official violated “clearly established law,” which usually requires specific precedent on point. This Article argues that the qualified immunity doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.

Members of the Supreme Court have offered three different justifications for imposing this unwritten defense on the text of Section 1983. First, that the doctrine of qualified immunity derives from a common-law “good-faith” defense. Second, that it compensates for an earlier putative mistake in broadening the statute. Third, that it provides “fair warning” to government officials, akin to the rule of lenity.

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. Furthermore, 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 its shoddy foundations, the Supreme Court has been formally and informally reinforcing the doctrine of immunity. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for habeas deference and few other legal doctrines. Rather than doubling down, the Court ought to be beating a retreat.

Keywords: qualified, immunity, constitutional litigation, constitutional torts, accountability, Section 1983, Ku Klux Klan Act, lawlessness

Suggested Citation

Baude, William, Is Qualified Immunity Unlawful? (February 18, 2018). 106 California Law Review 45, 2018, U of Chicago, Public Law Working Paper No. 610, Available at SSRN: or

William Baude (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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