Defending Qualified Immunity

80 Pages Posted: 6 Apr 2020 Last revised: 7 Jul 2020

See all articles by Lawrence Rosenthal

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law

Date Written: July 6, 2020


Damages actions against public officials are often the only effective vehicle for challenging the constitutionality of governmental conduct. Yet, they face the defense of qualified immunity, which bars actions for damages against government officials, unless the defendant violates a “clearly established statutory or constitutional rights of which a reasonable person would have known.”

Qualified immunity has come under sustained attack. One line of argument questions its lawfulness, noting that nothing in statutory text or the background principles of common law supports the defense. Another attacks its consequences, albeit from different directions. Some argue that the defense is so powerful that it renders damages actions ineffective as a check on official misconduct. Others argue that qualified immunity is ineffective because it too rarely protects public officials from the threat of litigation and liability.

This article is the first to offer a direct response to the emerging case against qualified immunity. Part I defends the lawfulness of qualified immunity. While acknowledging that the conventional defenses of qualified immunity wither under scrutiny, it offers a novel justification: Congress’s delegation of authority to the federal courts to develop common-law rules for the administration of liability under the civil rights laws in the Civil Rights Act of 1866. Part II similarly acknowledges that the conventional justifications offered for qualified immunity are unpersuasive, but contends a functional justification emerges by examining qualified immunity’s incentive effects. In light of the practical necessity for public employers to indemnify their employees for their legal costs, indemnification effectively shifts the financial burden of litigation from public employees to their employers. Qualified immunity, in turn, encourages public employers wishing to minimize the cost of indemnification to train their employees to comply with extant legal rules. It also discourages plaintiffs’ lawyers from bringing a wide variety of novel damages claims, and minimizes the costs imposed on innocent third parties if public officials faced liability in cases in which the legality of their conduct was unclear. This last point is of particular import. After all, money state and local governments must devote to litigation costs necessarily comes from raising taxes or, more likely, from reductions in funding public services. These costs are likely to hit hardest those with the least political power in government budgeting — the poor and disadvantaged.

Keywords: Qualified Immunity, Civil Rights, Section 1983 Litigation

Suggested Citation

Rosenthal, Lawrence, Defending Qualified Immunity (July 6, 2020). South Carolina Law Review, Forthcoming, Available at SSRN:

Lawrence Rosenthal (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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