The End of Comparative Qualified Immunity
Texas Law Review Online (forthcoming)
7 Pages Posted: 2 Mar 2021 Last revised: 20 Mar 2021
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: Suggested Citation