Is Qualified Immunity Unlawful?

45 Pages Posted: 11 Jan 2017 Last revised: 28 Mar 2017

William Baude

University of Chicago - Law School

Date Written: March 21, 2017

Abstract

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 the government official violated “clearly established law,” usually requiring a specific precedent on point. This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.

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. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference. 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

Suggested Citation

Baude, William, Is Qualified Immunity Unlawful? (March 21, 2017). 106 California Law Review (2018 Forthcoming); U of Chicago, Public Law Working Paper No. 610. Available at SSRN: https://ssrn.com/abstract=2896508

William Baude (Contact Author)

University of Chicago - Law School ( email )

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

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