The End of Comparative Qualified Immunity

Texas Law Review Online (forthcoming)

7 Pages Posted: 2 Mar 2021 Last revised: 20 Mar 2021

See all articles by Colin Miller

Colin Miller

University of South Carolina School of Law

Date Written: February 24, 2021


Critics have called qualified immunity an “unqualified disgrace,” an “abomination,” and “a scourge that closes courthouse doors to people whose constitutional rights have been violated.” One particularly troubling aspect of qualified immunity is what I’ll call comparative qualified immunity: the ability of a government official to avoid liability by claiming that his behavior wasn’t that much worse than conduct by a prior official that was deemed constitutional. In November 2020, the Supreme Court seemingly created a narrow exception to comparative qualified immunity in cases involving “particularly egregious facts.” In February 2021, however, the Supreme Court signaled that this was no mere narrow exception; instead, it was likely the end of comparative qualified immunity.

Keywords: Qualified Immunity

JEL Classification: K14, K42

Suggested Citation

Miller, Colin, The End of Comparative Qualified Immunity (February 24, 2021). Texas Law Review Online (forthcoming), Available at SSRN: or

Colin Miller (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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