Qualified Immunity Explained, From the 1871 Klan Act to Today's Fights

The statute is more than a century and a half old, and it does not contain the word "immunity." Not once. Congress wrote a law that says a state official who violates your constitutional rights "shall be liable," and the Supreme Court has spent most of the time since explaining the circumstances in which he is not.

If you are a conservative who reads statutes the way you read the Constitution, with the text first and the glosses after, you ought to find that interesting. If you are a conservative who has stood beside a police officer, you ought to find it interesting too, because the doctrine that protects him is not what its critics claim and not what its defenders claim either. Conservatives disagree about qualified immunity, and the disagreement is worth having with the facts on the table. Here they are.

The text: Section 1 of the Ku Klux Klan Act

The story starts after the Civil War. The Fourteenth Amendment had been ratified in 1868, promising that no state would deprive any person of life, liberty or property without due process of law, or deny equal protection of the laws. Then came the problem of enforcement. In the former Confederate states, local sheriffs, magistrates and juries were often unwilling or unable to protect the freedmen from the Klan and, in too many places, were members of it.

Congress responded with the Enforcement Acts, and on April 20, 1871, it passed the Civil Rights Act of 1871, known as the Ku Klux Klan Act. Section 1 of that law is the ancestor of the statute we now cite as 42 U.S.C. 1983. In its modern form it reads, in part, that every person who, under color of any statute, ordinance, regulation, custom or usage of any State, "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."

Three features matter. The defendant must act "under color of" state law, which means a state official using the authority of the state. The plaintiff must have suffered a deprivation of a federal right. And the remedy is a lawsuit for damages. The text says "every person." It lists no exceptions.

For its first ninety years the statute was nearly dormant. The Court read it narrowly, and then in Monroe v. Pape (1961) it held that the statute could reach officials who violated the Constitution even where state law forbade the act. Section 1983 suits became a regular feature of American law. In Monell v. Department of Social Services (1978), the Court held that cities and local governments are "persons" who can be sued when their own policies cause the violation.

How the shield was built

The Court did not read an immunity into the statute out of nothing. Its reasoning was that Congress legislated against the background of the common law, and that some common-law immunities were so well settled that Congress could not be presumed to have abolished them. Judges, for example, had absolute immunity for judicial acts. That is the theory. Here is how it developed, case by case.

1. Pierson v. Ray (1967). A group of Black and white ministers who attempted to use a segregated bus terminal waiting room in Jackson, Mississippi, were arrested under a state statute that was later held unconstitutional. They sued the arresting officers. The Court held that the common law had long given police officers a defense of good faith and probable cause when they made an arrest under a statute they reasonably believed valid, and it said that this defense was available in a 1983 action. Note that this was a defense tied to what the officer believed.
2. Harlow v. Fitzgerald (1982). This is the case that gives modern qualified immunity its shape. Harlow involved senior White House aides. The Court was worried that subjective-good-faith inquiries, which required discovery into what an official was thinking, made it too hard to dismiss weak suits early. It replaced the old test with an objective one: government officials performing discretionary functions are generally shielded from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." This is the sentence that every law student learns.
3. Pearson v. Callahan (2009). Earlier, in Saucier v. Katz (2001), the Court had required lower courts to decide first whether a constitutional violation occurred and only then whether the right was clearly established. In Pearson the Court gave judges the discretion to take the questions in either order. Critics say this let courts skip the first question and, by doing so, stop the law from developing. Defenders say it saves courts from deciding constitutional questions they need not decide.

So the modern doctrine has two questions. Did the official violate a constitutional right? And was that right "clearly established" at the time, so that a reasonable official would have known he was breaking the law? If the answer to the second is no, the official is immune even though the first answer was yes.

What "clearly established" means in practice

The practical fight is over how specific the earlier case has to be. The Court has said that a case on all fours is not required, and in Hope v. Pelzer (2002) it held that officials can be on notice even in novel factual situations when the violation is obvious. But in later cases it has insisted that clearly established law must not be defined "at a high level of generality," and lower courts often look for an earlier decision with materially similar facts.

Picture, as a hypothetical, an officer who does something that a court later calls unconstitutional, in a circumstance that no prior decision in that circuit addressed directly. The court may say the officer violated the Fourth Amendment and then still grant him immunity because no earlier case put the question beyond debate. The plaintiff loses damages. The next officer, however, is now on notice, because the court has established the law. That is the system working as designed, and it is the part critics find infuriating. The first victim of a new kind of violation can win the principle and lose the lawsuit.

Plaintiffs' lawyers also say that the demand for factually similar cases creates a trap. Only decisions that deny immunity create clearly established law, but if courts keep granting immunity without reaching the merits, no new decisions are made. The Court's answer in Pearson, that judges may choose the order, makes that trap more plausible. It is an argument worth hearing.

Why some conservatives want it gone

The case against is largely a textualist case, and it is not a liberal invention.

1. The statute says "every person." The 1871 Congress wrote no exception. A judge-made immunity that the text does not contain reads like exactly the sort of atextual gloss that conservatives criticize in other fields.
2. The history is contested. The Court's claim in Pierson that the common law supplied a good-faith defense has been challenged by legal scholars, including conservative-leaning ones such as William Baude, whose 2018 article "Is Qualified Immunity Unlawful?" argued that the doctrine does not match the law that existed in 1871. Whether he is right is still debated, but the debate is a scholarly one and not a partisan one.
3. Harlow had a different purpose. The Court was thinking of insubstantial suits against senior officials. It has since applied the same doctrine to every patrol officer in the country.
4. Accountability is a conservative value. A government that exercises power should answer for abuses of it. If a private citizen who commits a tort pays damages, a public official who commits a constitutional tort should too.

Justice Clarence Thomas has said the last part out loud. In his concurrence in Ziglar v. Abbasi (2017), he wrote that "in an appropriate case, we should reconsider our qualified immunity jurisprudence," expressing doubt that the Court's modern approach could be squared with the statute's text and history. He has repeated the concern in later separate writings. When a justice who is a leading voice for originalism says the doctrine needs a second look, conservatives should not wave him off.

Why some conservatives want it kept

The case for keeping the doctrine is a practical and a structural one.

1. Officers decide in the moment. An officer who has to choose in a fraction of a second, with incomplete information, should not face a personal financial lawsuit over a close call that judges later debate for years. The fear of personal liability would push officers to hesitate when hesitation is dangerous, and to leave the profession when they should stay.
2. Fair notice is a rule-of-law value. A person should not be punished, civilly or otherwise, for violating a rule that was not clear when he acted. The "clearly established" test is the civil version of the idea that criminal laws must give fair warning.
3. The officer rarely pays out of pocket. In most places governments indemnify officers for damages in the course of their duties, so the immediate burden of a judgment usually falls on the government. That cuts two ways. It means the doctrine mostly protects the public treasury from claims, and it also means removing the doctrine would not usually bankrupt officers. Both sides use the point. I would say honestly that the extent of indemnification varies by place and policy, and you should check yours.
4. There are other remedies. The doctrine does not bar a suit against a city under Monell, it does not bar injunctions to stop unlawful practices, and it does not stop criminal prosecution of an officer who breaks the law.
5. Recruitment is already hard. For the staffing problem, see Why Cities Cannot Hire Enough Police Officers, and What Would Fix It. Raising the personal legal risk of a job that already carries physical risk is a strange way to fill vacancies.

The strongest objection, answered

The best objection to keeping qualified immunity is this: whatever the practical advantages, the doctrine is a court-made rule that overrides a clear statute, and conservatives do not defend that in other fields. If Chevron deference could be retired because courts should not rewrite the law, why should qualified immunity survive?

The answer has three parts. First, it is a fair challenge, and it is not answered by saying the policy is useful. A judge's policy preference is not a license. Second, the strongest textual defense is that Congress wrote the statute against a common-law background that included official immunities, and Congress has had since 1871 to amend the statute if the Court got it wrong. It has not done so, and its silence over decades counts for something, though a silence is a weak thing to rest a doctrine on. Third, and this is where I land, the proper cure is not for the Court to abolish the doctrine abruptly but for the Court to correct its excesses and for Congress to act. If the legislature wants to set the standard, it can write it into the statute, with definitions of "clearly established" and indemnification rules that make sense, rather than leave it to judges.

That is a conservative answer, in the sense that it respects the separation of powers. The Constitution gives lawmaking to Congress. When a doctrine has grown up around a statute, the people who wrote the statute are the ones with the authority to rewrite the doctrine.

What reform could look like

Where conservatives disagree is on which fix to pursue, and some of the options are worth listing.

• Narrow the doctrine by loosening the "factually similar case" requirement so that obvious violations are not shielded.
• Shift the burden to governments by requiring indemnification and then letting the government sue for recovery where an officer acted outside policy or willfully.
• Require the merits question first, so that courts keep announcing what the Constitution means even when the plaintiff does not recover.
• Leave it to the states, some of which have passed their own statutes on state-law claims. States are laboratories, and they do not all agree.

Notice that none of these is the cartoon version of either side. Nobody serious proposes making every officer personally liable for every honest mistake, and nobody serious defends a doctrine that routinely shields a deliberate abuse.

What the dispute shows about the Constitution

A great deal of constitutional law is about the question of who decides. The Founders did not believe that officers of the government should be above the law. Madison, in Federalist No. 51, wrote that "If men were angels, no government would be necessary," and the same page spoke of the need to oblige government to control itself. He was talking about structure, but the principle is a general one: power needs a check. Qualified immunity is a place where two checks pull against each other, the check of liability that holds officials answerable and the check of fair notice that keeps them from being punished for guessing wrong about unsettled law.

I would not trust anyone who tells you the answer is obvious. The ones who say "abolish it" tend to forget that officers act in the dark. The ones who say "it protects the brave" tend to forget that an immunity that no one can overcome is not a defense but a wall. A republic that takes both its police and its liberty seriously will work out the line, and it should do so in the legislature.

For more, our piece on Qualified Immunity Divides Conservatives, and Both Sides Have a Point sets out the two camps side by side. Graham v. Connor and the Officer's View in a Split Second explains the standard that decides whether force violated the Constitution in the first place, and Five Supreme Court Dissents That Later Became the Law of the Land is a reminder that today's minority position can become tomorrow's holding.

The case in brief

1. Section 1 of the Civil Rights Act of 1871, now 42 U.S.C. 1983, makes state officials who violate federal rights liable for damages and says nothing about immunity.
2. The Court built qualified immunity through Pierson v. Ray (1967), Harlow v. Fitzgerald (1982) and Pearson v. Callahan (2009): officials are shielded unless they violate clearly established law.
3. Critics, including Justice Thomas in his Ziglar v. Abbasi concurrence, say the doctrine departs from the statute's text and history.
4. Defenders say officers deciding in seconds need fair notice, and that governments, not officers, usually pay.
5. The principled path runs through Congress, which can write the standard into the statute and settle the question the courts have left open.

What you can do: read 42 U.S.C. 1983 on Congress.gov and write your member of Congress and your state legislators to say whether you want the standard written into statute.