The Intractability of Qualified Immunity

34 Pages Posted: 20 Apr 2018

See all articles by Alan K. Chen

Alan K. Chen

University of Denver Sturm College of Law

Date Written: April 19, 2018


The federal common law doctrine of qualified immunity has now puzzled, intrigued, and frustrated federal judges, legal academics, and practitioners for half a century. Even after decades of extensive public debate in the pages of the federal reporters and law reviews, the challenges presented by qualified immunity are stubbornly persistent. This article offers an internal critique of qualified immunity law that explains why these problems remain intractable and why, unfortunately, there is little hope for resolution of the doctrine’s central dilemmas.

The article breaks down the major problems surrounding qualified immunity into three distinct, but related, categories, and argues that each category is plagued by essentially unresolvable issues. First, it addresses what I describe as qualified immunity’s foundational jurisprudential tensions. Embedded in the doctrine are several first-level legal theory problems that can be identified and discussed, but for which there is ultimately no “right” answer. These tensions can be seen, for example, in the operationalization of the doctrine as an open-ended reasonableness standard rather than a bright-line rule, the conceptual challenge of distinguishing pure questions of law from mixed questions of law and fact, and the appropriate level of generality at which “clearly established constitutional rights” are articulated. Indeed, as the latter question suggests, the very meaning of constitutional rights underlies all conversations about qualified immunity.

These theoretical quandaries are translated into real practical challenges for judges and litigators, especially at the federal district court level, who struggle to implement a doctrine that suffers from serious administrability problems. Among these problems are continuing disputes over the degree to which discovery is permissible prior to resolving immunity claims, the coherent implementation of supposedly trans-substantive pleading and summary judgment procedures, and the continuing consumption of substantial resources in the adjudication of qualified immunity claims.

Finally, the article addresses qualified immunity from a public policy perspective, arguing that meaningful reform of the doctrine is impeded in part because of these previously identified tensions, which as previously suggested are not subject to easy resolution. Reform is also impeded because of insurmountable epistemological problems in understanding how the doctrine operates on the ground. Notwithstanding the emergence of excellent, recent empirical work by several legal scholars, the doctrine likely will remain entrenched in its current form because of the Supreme Court’s reluctance to consider empirical data in revising rules of constitutional enforcement coupled with Congress’s lack of political will. The legal community can continue to argue about qualified immunity at the margins, but should not reasonably expect any transformation of the doctrine’s basic structure over its next 50 years.

Note: Do Not Cite or Quote Without Author’s Written Permission

Suggested Citation

Chen, Alan K., The Intractability of Qualified Immunity (April 19, 2018). Notre Dame Law Review, Forthcoming; U Denver Legal Studies Research Paper No. 18-09. Available at SSRN:

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)

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics