Frequently Asked Questions About Qualified Immunity

Qualified immunity is a judicial doctrine developed by the Supreme Court in the late 1960s, which shields state actors from liability for their misconduct, even when they break the law. Our primary federal civil rights statute—generally called “Section 1983” after its place in the U.S. code—says that any state actor who violates someone’s constitutional rights “shall be liable” to the party injured. But under the doctrine of qualified immunity, the Court has held that such defendants can’t be sued unless they violated “clearly established law.” In other words, it is entirely possible—and quite common—for courts to hold that government agents did violate someone’s rights, but that the illegality of their conduct wasn’t sufficiently obvious for them to be held liable to the victim of their misconduct.

It’s hard to define exactly what it means for rights to be “clearly established,” but in practice, it’s an exacting standard that’s quite difficult for civil rights plaintiffs to meet. To deny qualified immunity, courts generally require not just a clear legal rule, but a prior case with functionally identical facts. Although the Supreme Court has always insisted that an exact case on point is not strictly necessary, it has also stated that “existing precedent must have placed the statutory or constitutional question beyond debate.” Lawyers are quite skilled at finding ways to debate even seemingly obvious points, and courts regularly rely on minor factual distinctions to conclude that the law was not “clearly established” on some particular point—for example, the time of day, or the day of the week, that the offense occurred.

In short, qualified immunity is an unjust, unnecessary, and unlawful doctrine that the Supreme Court simply made up out of whole cloth. The special safeguard it grants to government defendants is flatly at odds with the plain language of Section 1983 and unsupported by the relevant legal history. Its main practical effects are to deny justice to victims whose rights are violated and to undermine accountability for public officials—especially in law enforcement.

The original version of the statute that would ultimately become Section 1983 was passed in 1871, as part of the Ku Klux Klan Act. This statute was itself third in a series of “Enforcement Acts” passed by the Reconstruction Congress, intended in large part to secure the constitutional rights of newly freed slaves in the post-Civil War South. The language of the statute was modified in 1874, and ultimately codified at 42 U.S.C. § 1983. For simplicity, this FAQ will refer to all historical versions of this statute as “Section 1983,” even though it hasn’t always been called that.

As federal statutes go, Section 1983 is pretty straightforward, once you parse the nineteenth century legalese. The operative language of the statute says:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress

The phrase “under color of [state law]” just means everyone acting under state authority—in other words, all government agents. So the statute says, in essence, that any state actor who causes the violation of someone’s federally protected rights—either constitutional rights or federal statutory rights—“shall be liable to the party injured.” Note that this language is clear and unequivocal, and doesn’t mention any immunities whatsoever, qualified or otherwise.

The Supreme Court has offered a few different legal rationales for qualified immunity, but by far the most prevalent is the idea that nineteenth century common law (i.e., general principles of law announced through judicial decisions, rather than statutes) permitted such a defense for government agents. Chief Justice Roberts stated that “[a]t common law, government actors were afforded certain protections from liability,” and that “the [qualified immunity] inquiry begins with the common law as it existed when Congress passed § 1983 in 1871.” Filarsky v. Delia, 566 U.S. 377, 383-84 (2012).

To be clear, there’s nothing wrong with this sort of argument in principle. For example, suppose a legislature passed a statute that said: “Any person who willfully discharges a firearm at another shall be guilty of a felony, and imprisoned for not more than 10 years.” This statute doesn’t say anything about an exception for self-defense, but self-defense is such a well-established part of our legal tradition that courts would probably assume the legislature did not intended to negate that defense. So the relevant question we need to ask is whether there were, in fact, well-established common-law defenses for government agents at the time when Section 1983 was first passed.

No. This historical point—in conjunction with the clear text of Section 1983—is the primary legal argument against qualified immunity, and it’s discussed in detail in a recent law review article by Professor William Baude. But to summarize his findings, the background legal rule throughout the nineteenth century was strict liability for government agents who committed constitutional violations. In other words, if a government agent was sued for harm they caused in the course of carrying out their duties, it was no defense that they believed they were acting lawfully. Unless the government official was, in fact, acting lawfully, then they could be held liable to the person they injured.

Professor Baude’s article discusses this in more detail, but two Supreme Court cases are especially helpful in understanding this point. The first is an 1804 case called Little v. Barreme. This case involved a claim against an American naval captain—George Little—who had captured a Danish ship in 1799, during the Quasi-War with France. Federal law at the time authorized seizure of ships going to a French port (which this ship was not), but President Adams had issued broader instructions to also seize ships coming from French ports. The question was whether Captain Little’s reliance on these instructions was a defense against liability for the unlawful seizure.

The Court’s decision in Little makes clear that it seriously considered, but ultimately rejected, the very rationales that would come to support the doctrine of qualified immunity. Chief Justice Marshall explained that “the first bias of my mind was very strong in favour of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages”—that is, even though the captain broke the law, maybe he should be immune from damages. Nevertheless, the Court found him liable, and held that “the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.” In other words, the officer’s only defense was legality, not good faith.

The second is a 1915 case called Myers v. Anderson, which involved Section 1983 itself. In this case, the Court held that a Maryland statute violated the Fifteenth Amendment’s ban on racial discrimination in voting. The defendants (state election officers) then argued that, even if the statute was unconstitutional, they should not be liable for money damages, because they acted on a good-faith belief that the statute was lawful. The Court noted that “[t]he non-liability . . . of the election officers for their official conduct is seriously pressed in argument,” but it ultimately rejected any such good-faith defense. While the Myers Court did not elaborate much on this point, the lower court decision it affirmed was much more explicit:

[A]ny state law commanding such deprivation or abridgment [of constitutional rights] is nugatory and not to be obeyed by any one; and any one who does enforce it does so at his known peril and is made liable to an action for damages by the simple act of enforcing a void law to the injury of the plaintiff in the suit, and no allegation of malice need be alleged or proved.

In other words, half a century before it even invented qualified immunity, the Supreme Court had affirmed that there was no good-faith defense to suits under Section 1983. If state agents violated your constitutional rights, they were liable for any injury, period.

Yes, but only in limited circumstances. There were certain kinds of cases where a lack of “good faith” was part of what you needed to prove to win a lawsuit. For example, suppose you tried to sue a sheriff who arrested you for a crime you didn’t commit. If the sheriff had probable cause to believe you committed the crime—whether or not you actually did—then the sheriff would have a defense to your lawsuit. Another way to say this is that good faith and probable cause is a defense to a claim of “false arrest.”

But this kind of good-faith defense is very different from qualified immunity. In the example above, the lack of good faith is an element of a particular tort (in this case, false arrest). If the sheriff was acting in good faith, then he wasn’t breaking the law in the first place. But qualified immunity is an across-the-board defense. It applies to every public official, in every kind of case. When a defendant receives qualified immunity, it doesn’t mean they were acting lawfully; it just means that they can’t be held liable for damages. And there was definitely nothing like this across-the-board defense at common law.

The doctrine of qualified immunity has changed substantially over the years, but it was first articulated in a 1967 Supreme Court case called Pierson v. Ray. That case involved a Section 1983 suit against police officers who had arrested several people under an anti-loitering statute ultimately found to violate the First Amendment. The Supreme Court held that because the common-law tort of false arrest allowed the defense of “good faith and probable cause,” defendants should have that same defense in an “analogous” suit under Section 1983.

Note that Pierson presents exactly the same kind of issue as Myers v. Anderson—both involved state officials who violated individuals’ rights by enforcing unconstitutional statutes. But the Court flipped positions in Pierson, and allowed for the first time a good-faith defense to liability under Section 1983, without even acknowledging that they were doing so.

After Pierson, it looked like the Supreme Court might be charting a narrow course for qualified immunity, limiting it to a subjective, good-faith defense in cases in which the civil rights lawsuit resembled a common-law tort with a good-faith defense—like in the case of false arrest. But the Court soon expanded the doctrine beyond both of these limitations. First, in a 1974 case called Scheur v. Rhodes, the Court abandoned the analogy to common-law torts with a good-faith defense, and essentially held that qualified immunity would apply to all suits under Section 1983.

Second, in a 1982 case called Harlow v. Fitzgerald, the Supreme Court said that what mattered was not the defendant’s actual good-faith belief in the legality of their action, but “the objective reasonableness of an official’s conduct, as measured by reference to clearly established law.” In other words, qualified immunity would be available in all cases, to all defendants, unless the rights they violated were “clearly established.” The Supreme Court has continued to tighten this standard over the years, and clarified that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”

Qualified immunity is a defense available to all public officials, both state and federal, when they are sued by someone claiming that the public official violated their fede