Qualified Immunity Divides Conservatives, and Both Sides Have a Point

Here is a rare thing in American politics: a legal doctrine that makes a Cato Institute scholar and a former prosecutor who loves cops angry at the same time, for opposite reasons. One says it lets bad officers off the hook. The other says that without it, good officers would be sued into the poorhouse for guessing wrong in a dark alley at two in the morning.

Both are describing the same doctrine, and both are describing something real. That is why qualified immunity is one of the few subjects on which honest conservatives disagree in public. I am going to give each side its strongest case, in words its defenders would accept, and then I am going to tell you where I come down, and why.

The Definitions

Section 1983. Title 42, section 1983 of the United States Code lets a person sue state and local officials who, acting "under color of" state law, deprive that person of rights secured by the Constitution and laws of the United States. It is the main way a citizen sues a police officer for excessive force, a false arrest or an unlawful search.

Qualified immunity. It is a judge-made defense that shields government officials from personal liability under section 1983 unless they violated a "clearly established" right. If a court finds that no earlier case put the officer on notice that his specific conduct was unlawful, the officer wins, even if the conduct was in fact unconstitutional.

Two things in those definitions deserve a flag. The statute says nothing about immunity. And the defense turns on whether the law was "clearly established," not on whether the officer actually did wrong. Keep both in view.

The Statute: April 1871

Section 1983 began as section 1 of the Civil Rights Act of April 20, 1871, often called the Ku Klux Klan Act. Congress passed it during Reconstruction, when state officials in the South either joined or tolerated terror against freed slaves and their white allies. The Fourteenth Amendment had been ratified in 1868 and promised the equal protection of the laws, but the states that were supposed to enforce it were not doing so. Congress responded by creating a federal cause of action against officials who violated people's rights under color of state law.

The text, as enacted, made liable "any person" who, under color of state law, subjected another to the deprivation of constitutional rights. It did not contain an exception for good-faith officials. It did not mention immunity at all. The first-year law student's question is the right one: where did the defense come from?

The Cases: How the Doctrine Was Built

The answer is that the Supreme Court built it, in stages.

Pierson v. Ray (1967). A group of clergymen were arrested in Jackson, Mississippi, in 1961 for refusing to leave a segregated bus terminal, under a state breach-of-the-peace statute that was later held unconstitutional. They sued the arresting officers under section 1983. The Supreme Court, in an opinion by Chief Justice Warren, held that police officers have a defense of good faith and probable cause, drawing an analogy to the common-law defenses that existed in 1871. The Court's logic was that Congress, in passing the statute, had not meant to abolish the traditional defenses that officers had at common law.

Harlow v. Fitzgerald (1982). The Court changed the test from subjective to objective. The old rule had asked whether the officer acted in good faith, which depended on his state of mind and was hard to resolve without a trial. Harlow held that officials performing discretionary functions are shielded from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." The goal was to dispose of insubstantial claims early, before discovery and trial, so that officials would not be distracted by lawsuits.

The "clearly established law" test. Since Harlow, courts ask two questions: whether the facts alleged show a violation of a constitutional right, and whether that right was clearly established at the time. In Pearson v. Callahan (2009), the Court allowed lower courts to take the questions in either order. That has a consequence critics find maddening: a court may decide that the right was not clearly established without ever deciding whether the officer broke the Constitution, which means the law never develops. If no court rules on the question, no right becomes clearly established, and the next plaintiff loses for the same reason.

Qualified immunity does not protect municipalities. In Owen v. City of Independence (1980), the Court held that cities cannot assert the officer's good-faith defense. So the doctrine protects the individual officer's personal assets, not the government's treasury.

The Case for the Doctrine

Here is the best argument for qualified immunity, and I want to state it as its defenders would.

One: police officers make decisions in seconds. A person who has the time to read a case book is not the person who is deciding whether to fire. The Constitution does not require an officer to be a lawyer. It requires him to act reasonably, and the law should not punish him for a reasonable guess about an unsettled legal question.

Two: personal liability would drive good people out of the work. If an officer could lose his house over a good-faith misjudgment, fewer qualified people would take the job, and those who did would hold back at moments when action was needed. The people who pay for that are the communities that need policing.

Three: the doctrine is about fair notice, which is a value conservatives hold. A person should not be held liable for violating a rule that was not clear when he acted. That is the same principle that makes vague criminal laws unconstitutional. It cuts both ways, and it ought to apply to officers as well as citizens.

Four: the doctrine protects officers and public budgets from a flood of litigation. Defenders say it screens out weak claims early and spares officers the threat of personal ruin while the underlying law remains in force. Candor requires one fact on the other side: a 2014 study by Joanna Schwartz of forty-four large jurisdictions found that officers paid toward settlements and judgments in well under one percent of cases, because governments almost always pay. Personal ruin is the fear; indemnification is the practice.

I think those are serious points, and the person who makes them is not an apologist for bad cops. Conservatives have long defended the police, and rightly: the law-abiding poor are the first victims of disorder.

The Case Against It

Now the other side, stated with equal fairness.

One: the text does not support it. Section 1983 says "every person." It does not say "every person except officials who act reasonably." The common-law defenses that the Court said it was preserving in Pierson were not, the critics argue, the broad immunity the modern doctrine created. A scholar at the University of Chicago, William Baude, laid out that argument in a 2018 article titled "Is Qualified Immunity Unlawful?" in the California Law Review, and concluded that the doctrine has no sound basis in the law as it stood in 1871. That is a textualist and originalist critique, not a liberal one.

Two: Harlow moved the doctrine away from its own rationale. Pierson was about good faith. Harlow turned it into an objective test for which the question is whether an earlier case, with nearly identical facts, put the officer on notice. Over the following decades, the Court has insisted that the earlier case be quite specific, which means a plaintiff may lose because no previous court had ruled on the exact scenario.

Three: the doctrine ensures that the law stays unclear. Because courts may skip the first question, a right can go unsettled for decades. The citizen's constitutional claim vanishes, and the common-law tradition of developing the law by deciding cases is stunted.

Four: it conflicts with the conservative idea of accountability. A government official who abuses power should answer for it. The idea that those with power should be held to a standard no lower than that of the people they police is central to the rule of law, and it echoes a long conservative tradition of distrust of unchecked state power. A government that can violate your rights and escape on a technicality is not a limited government.

Justice Clarence Thomas has taken up that critique. In his concurrence in Ziglar v. Abbasi (2017), he wrote that "in an appropriate case, we should reconsider our qualified immunity jurisprudence," noting that the Court's approach had strayed from the statutory text. He has repeated the point in later opinions. For a profile of the method behind that view, see Clarence Thomas Went From Pin Point, Georgia, to the Court's Leading Originalist.

Where the Disagreement Lies

Notice something about the two cases. They are not really arguing about facts. They are arguing about two different things a conservative is supposed to care about: fidelity to text and protection of those who enforce the law. Both are legitimate. The text argument is strong. The practical argument is also strong. The question is how to reconcile them.

Here is my verdict, in the form of a short argument.

1. The doctrine as it stands is hard to defend on the text. If a statute says "every person" and a court adds an exception, the exception has to be justified by the law as it was understood when the statute was passed. The historical case for the modern doctrine is, at best, contested, and the best conservative scholarship says it fails. I think that is correct.
2. The practical concerns are real, but they are policy arguments, and policy arguments belong to the legislature. If Congress believes officers need protection from personal liability, it can write that protection into the statute, narrowly, with the limits it chooses. A judge-made doctrine puts the question in the wrong branch. That is the same objection we raise against any judge-made rule that Congress could have written itself.
3. Abolishing the doctrine without a substitute would be a mistake. A rule that exposes officers to unlimited personal liability for reasonable mistakes would do real damage. The answer is a considered statute: for example, a clear standard for when officers are liable, a rule that governments pay judgments, and a rule that officers who act in bad faith are personally responsible. That is what a legislature is for.
4. The states are already experimenting. Colorado enacted a law in June 2020, as part of a broader law enforcement reform bill signed on June 19, that created a state-law cause of action against officers for violating state constitutional rights and barred qualified immunity as a defense to it. That is a legislature doing its job. Other states have gone different ways, and the results will teach us something. Federalism is the laboratory the Founders designed, and this is the sort of question for which it was built.

So where do I land? I side with the critics on the text and with the defenders on the consequences, and I think the way to honor both is for Congress and the states to legislate, openly, rather than leave the doctrine as it is.

The Objection to My Verdict

Someone will say that Congress will never act, and the courts have to fix it. That is the argument of impatience, and I understand it. But the Constitution assigns the writing of rules to the legislature, and when courts write rules because the legislature will not, they teach the legislature that it need not. If the doctrine is wrong, the Court can say so in an appropriate case, as Justice Thomas has invited it to do, and the legislature can respond. What the Court should not do is keep a doctrine it believes lacks a textual basis because the alternative is unpleasant.

For related reading, see The Takings Clause Explained, From Public Use to Just Compensation on how the Constitution limits government power over citizens' property, and The Sick Chicken Case of 1935 and the Doctrine That Could Rein In Agencies on why the legislature must make the hard calls. For the Founders' view of the courts' role, see Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?. The courts page has further resources.

The case in brief

1. Section 1983, from the Ku Klux Klan Act of 1871, lets citizens sue officials who violate their rights under color of state law, and its text contains no immunity.
2. The Court built qualified immunity in Pierson v. Ray (1967) and Harlow v. Fitzgerald (1982), and it protects officers unless they violate "clearly established" law, which critics say allows courts to avoid developing that law.
3. Defenders say officers make split-second decisions and need protection from personal ruin; critics, including Justice Thomas in Ziglar v. Abbasi (2017), say the doctrine has no basis in the statute and conflicts with accountability.
4. Both conservative positions are principled, and the way to honor both is for Congress and the states to legislate a clear standard in place of a judge-made one.
5. Colorado's 2020 law shows a legislature taking up the question, and federalism lets other states learn from the result.

What you can do: look up whether your state has addressed qualified immunity or officer liability by statute, using your state legislature's website, and write to your state representative with your view on what the law should say.