The Case Against Qualified Immunity, Part III

Over the past two days, and in a forthcoming article excerpted here, I have argued that qualified immunity doctrine cannot be justified by its supposed common law roots, or its more recent policy justifications. The Supreme Court might alternatively decide to eliminate or limit qualified immunity doctrine because, in Justice Sotomayor’s words, it “renders the protections” of the Constitution “hollow.” Although qualified immunity is the reason few Section 1983 cases against law enforcement are dismissed, the Court’s qualified immunity decisions have nevertheless made it increasingly difficult for plaintiffs to show that defendants have violated clearly established law, and increasingly easy for courts to avoid defining the contours of constitutional rights.

When qualified immunity was first announced by the Supreme Court in 1967, it was described as a good faith defense from liability. For the next fifteen years, defendants seeking immunity were required to show both that their conduct was objectively reasonable and that they had a “good faith” belief that their conduct was proper. But, in 1982, the Court eliminated the subjective prong of the defense, entitling a defendant to qualified immunity so long as he did not violate “law [that] was clearly established at the time an action occurred.”

The Court’s definition of “clearly established” law has narrowed significantly over the past thirty-five years. Although the Court once held that a plaintiff could defeat qualified immunity by showing an obvious constitutional violation, the Court’s subsequent decisions have required that plaintiffs point to “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority.” In its most recent decisions, the Court has only been willing to assume arguendo that circuit precedent or a consensus of cases can clearly establish the law—suggesting that Supreme Court precedent is the only surefire way to clearly establish the law.

Moreover, the Supreme Court’s qualified immunity decisions require that the prior precedent clearly establishing the law have facts exceedingly similar to those in the instant case. Although the Court has repeatedly assured plaintiffs that it “‘do[es] not require a case directly on point’ for a right to be

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