The Facts About Qualified Immunity

51 Pages Posted: 14 Jun 2005

See all articles by Alan K. Chen

Alan K. Chen

University of Denver Sturm College of Law


This article provides a critical analysis of the Supreme Court's qualified immunity doctrine, which protects public officials from constitutional tort damages actions when their conduct does not violate...clearly established...constitutional rights of which a reasonable person would have known. It argues that there exists an irresolvable tension between the Court's objective that constitutional tort cases be terminated at an early stage of litigation and the inherently fact-based nature of the reasonableness inquiry that lies at the heart of the doctrine's analytical framework. The article surveys the Court's ill-fated and ill-advised attempts to refine the doctrine in a manner that consciously disregards the complex role of facts in constitutional adjudication. The first part of the article describes how the Court's early immunity decisions shaped the doctrine and its procedural structure in order to circumvent or avoid the factual issues that dominate much constitutional tort litigation. Next, the article discusses four recent Supreme Court decisions that purport to guide lower courts in the proper adjudication of immunity claims. It argues that the manner in which these cases refine qualified immunity is driven by the Court's desire to eliminate, or at least minimize, messy factual conflicts that might impede early dismissal of civil rights claims.

After illustrating this new understanding of the recent cases, the article examines why the Court denies that factual conflicts often impede the resolution of qualified immunity claims. First, it asserts that the Court treats the inherently factual reasonableness inquiry in qualified immunity claims as purely legal questions because of its desire that judges, rather than juries, resolve such claims. Thus, the Court's characterization of qualified immunity serves an allocative function. Next, the article contends that the Court has allocated decision making power in this way because it remains uncomfortable with the idea that qualified immunity is just that - qualified. In other words, the Court's recent efforts to refine qualified immunity reflect its wish to move the doctrine toward something resembling absolute immunity. Finally, the article criticizes the Court's role in this tacit transformation and argues that its actions obscure public discourse about the costs and benefits of constitutional torts as a means of ensuring compliance with constitutional norms.

Keywords: qualified immunity, civil rights litigation, constitutional law, judicial decision making, questions of law, issues of fact

Suggested Citation

Chen, Alan K., The Facts About Qualified Immunity. Emory Law Journal, Vol. 55, p. 229, 2006, U Denver Legal Studies Research Paper No. 07-05, Available at SSRN:

Alan K. Chen (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States
303-871-6283 (Phone)
303-871-6001 (Fax)

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