Qualified Immunity's 51 Imperfect Solutions

26 Pages Posted: 26 Oct 2021 Last revised: 9 May 2022

See all articles by Aaron L. Nielson

Aaron L. Nielson

Brigham Young University - J. Reuben Clark Law School

Christopher J. Walker

University of Michigan Law School

Date Written: October 13, 2021


Qualified immunity has no perfect solution. On one hand, qualified immunity can prevent individuals whose civil rights have been violated from receiving monetary compensation—obviously, a bad outcome. On the other hand, without qualified immunity, government officials who fear liability may hold back from protecting the public—another bad outcome. Qualified immunity seeks to strike a balance between those bad outcomes: Plaintiffs can recover damages only if a government official violated clearly established law. Some individuals thus will have their rights violated but receive no compensation, while other individuals may be harmed because the government does not come to their aid. Qualified immunity’s goal, however, should be to produce an outcome that is best for the public overall. Whether qualified immunity strikes the right balance is a topic of intense debate. This debate intensified following the killing of George Floyd and subsequent public protests in the summer of 2020. Many scholars, judges, and policymakers have since urged a rebalancing. Some even call for qualified immunity to be eliminated altogether. Others counter, however, that reforming qualified immunity will do more harm than good.

In our contribution to this symposium on the future of qualified immunity, we offer a partial path forward. Regardless of whether qualified immunity is reformed at the federal level, states have acted and can further act as laboratories of democracy to experiment with different balances. To illustrate the benefits of this approach, we identify reforms to qualified immunity that have been proposed at the federal level to demonstrate how they could be applied at the state level. We also expand the conversation by identifying other potential civil-rights litigation reforms that could be implemented in the states, including changes related to (i) pleading standards; (ii) anti-stagnation rules; and (iii) availability of appellate review. Although state-led reform is not a panacea, 51 imperfect solutions may be better than one imperfect solution.

Keywords: qualified immunity, federalism, Section 1983, civil rights, constitutional litigation

Suggested Citation

Nielson, Aaron and Walker, Christopher J., Qualified Immunity's 51 Imperfect Solutions (October 13, 2021). Duke Journal of Constitutional Law & Public Policy, pp. 321-346, Vol. 17, 2022, BYU Law Research Paper No. 21-23, Ohio State Legal Studies Research Paper No. 661, Available at SSRN: https://ssrn.com/abstract=3941603

Aaron Nielson

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

Christopher J. Walker (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

HOME PAGE: http://www.chrisjwalker.com

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