Qualified Immunity Laid Bare

48 Pages Posted: 1 Apr 2021

See all articles by F. Andrew Hessick

F. Andrew Hessick

University of North Carolina School of Law

Katherine C. Richardson

McGuire Woods, LLP

Date Written: March 19, 2021


Qualified immunity is a powerful defense that precludes actions for damages against officials for even egregious constitutional violations. But qualified immunity has not always been so strong. It has evolved over time from a modest extension of the common law defense for officials conducting arrests with probable cause to today’s expansive doctrine that shields an official from liability for any constitutional violation unless the official’s particular conduct was clearly unconstitutional.

This Article critiques that evolution. Although doctrinal changes typically embody an effort to balance competing interests, that has not been the case with qualified immunity. Two basic policies compete for recognition in the qualified immunity doctrine: one, embodied in 42 U.S.C. § 1983 and other civil rights statutes, is to vindicate constitutional rights; the other is to protect officials from oppressive suits. Qualified immunity’s development has been the product of an ever-increasing drive to protect officials at the expense of the statutorily-enshrined interest of vindicating constitutional rights—to the extent that the Court no longer mentions the latter in its opinions.

The Article then highlights several particular shortcomings resulting from this laser focus on protecting officials. It argues that, although not all cases equally implicate the policies at stake with qualified immunity, the emphasis on protecting officials has led the Court to reject introducing any nuance into the doctrine. Thus, qualified immunity does not vary according to the importance of the right violated, nor does it consider the risk an official faced of making a legal error. Further, the Article argues, today’s highly protective qualified immunity doctrine distorts the effects of the doctrines used to implement rights. Because qualified immunity depends on the clarity of the doctrine implementing a right, it devalues indeterminate rights—such as the Fourth Amendment prohibition on “unreasonable” searches—by limiting their enforceability. The Article contends that refining qualified immunity to account for these considerations would result in a superior doctrine.

Keywords: qualified immunity, civil rights, constitutional law

Suggested Citation

Hessick, F. Andrew and Richardson, Katherine C., Qualified Immunity Laid Bare (March 19, 2021). Wake Forest Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3808164

F. Andrew Hessick (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

Katherine C. Richardson

McGuire Woods, LLP ( email )

United States

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