View source for Qualified immunity

{{short description|Legal doctrine in United States federal law}}
{{use mdy dates|date=June 2020}}
In the [[United States]], '''qualified immunity''' is a legal principle of federal law that grants government officials performing discretionary (optional) functions immunity from [[lawsuit]]s for [[damages]] unless the plaintiff shows that the official violated "clearly established [[statutory right|statutory]] or [[constitutional right]]s of which a [[reasonable person]] would have known".<ref>Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).</ref> It is comparable to [[sovereign immunity]], though it protects government employees rather than the government itself. It is less strict than [[absolute immunity]], by protecting officials who "make reasonable but mistaken judgments about open legal questions",<ref>{{ussc|name=Ashcroft v. al-Kidd|volume=563|page=731|pin=743|year=2011}}.</ref> extending to "all [officials] but the plainly incompetent or those who knowingly violate the law".<ref>{{ussc|name=Malley v. Briggs|volume=475|page=335|pin=341|year=1986}}.</ref> Qualified immunity applies only to government officials in civil litigation, and does not protect the government itself from suits arising from officials' actions.<ref>{{cite web |title=Qualified immunity |url=https://www.law.cornell.edu/wex/qualified_immunity |website=Legal Information Institute |publisher=Cornell Law School |quote=Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials' actions. |access-date=June 4, 2020 |archive-url=https://web.archive.org/web/20200603182259/https://www.law.cornell.edu/wex/qualified_immunity |archive-date=June 3, 2020 |url-status=live }}</ref>

The [[Supreme Court of the United States|U.S. Supreme Court]] first introduced the qualified immunity doctrine in [[Pierson v. Ray|''Pierson v. Ray'' (1967)]], a case litigated during the height of the [[civil rights movement]]. It is stated to have been originally introduced with the rationale of protecting law enforcement officials from frivolous lawsuits and financial liability in cases where they acted in good faith in unclear legal situations.<ref name=":0" /><ref name="cops who kill"/> Starting around 2005, courts increasingly applied the doctrine to cases involving the use of [[Police brutality in the United States|excessive]] or [[Police use of deadly force in the United States|deadly force]] by police, leading to widespread criticism that it "has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights" (as summarized in a 2020 Reuters report).<ref name=":1"/>

== History and background ==
=== ''Pierson v. Ray'' ===
In ''[[Pierson v. Ray]]'' (1967), the Supreme Court first "justified qualified immunity as a means of protecting government defendants from financial burdens when acting in good faith in legally murky areas. Qualified immunity was necessary, according to the Court, because '[a] policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had [[probable cause]], and being mulcted in damages if he does.{{'"}}<ref name=":0" />

=== ''Bivens'' and 42 USC § 1983 lawsuits ===
Qualified immunity frequently arises in [[civil right]]s cases,<ref name="AmJur314">{{cite book |series=[[American Jurisprudence]] |edition=2d. |volume=63C |title=Public Officers and Employees |section=§ 314 |page=539 |url=https://archive.org/details/63cAmJur2dPublicOfficersAndEmployees_201512/page/n539 }}</ref> particularly in lawsuits arising under [[Title 42 of the United States Code|42 USC]] [[Section 1983|§ 1983]] and ''[[Bivens v. Six Unknown Named Agents]]'' (1971).<ref name=Bivens/> Under 42 USC § 1983, a plaintiff can sue for damages when state officials violate their constitutional rights or other federal rights. The text of 42 USC § 1983 reads as follows:<ref>{{USC|42|1983}}.</ref>

<blockquote href="Title 42 of the United States Code">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&nbsp;...</blockquote>

Similarly, under ''Bivens v. Six Unknown Named Agents'', plaintiffs may sue for damages if federal officials violate their constitutional rights. However, not all Constitutional violations give rise to a ''Bivens'' [[cause of action]].<ref>Actions Against Federal Agencies and Officers, 14 Fed. Prac. & Proc. Juris. § 3655 (4th ed.)</ref> Thus far the Supreme Court has recognized ''Bivens'' claims for violations of the [[Fourth Amendment to the United States Constitution|Fourth Amendment]],<ref name=Bivens>{{ussc|name=Bivens v. Six Unknown Named Agents|volume=403|page=388|pin=|year=1971}}.</ref> the [[Fifth Amendment to the United States Constitution|Fifth Amendment]]'s equal protection component of [[Due Process Clause|due process]],<ref>{{ussc|name=Davis v. Passman|volume=442|page=228|pin=245|year=1979}}.</ref> and the [[Eighth Amendment to the United States Constitution|Eighth Amendment]], but as of 2022, the Supreme Court has severely restricted the availability of ''Bivens'' claims.<ref>{{Cite web |last=Matters |first=Special to El Paso |date=2022-06-13 |title=Opinion: Supreme Court opens Pandora’s box in the Borderland |url=https://elpasomatters.org/2022/06/13/opinion-supreme-court-opens-pandoras-box-in-the-borderland/ |access-date=2025-04-23 |website=El Paso Matters |language=en-US}}</ref><ref>{{ussc|name=Carlson v. Green|volume=446|page=14|pin=25|year=1980}}.</ref>

=== ''Harlow v. Fitzgerald'' ===
The modern test for qualified immunity was established in ''[[Harlow v. Fitzgerald]]'' (1982).<ref name=":5">{{ussc|name=Harlow v. Fitzgerald|volume=457|page=800|pin=|year=1982}}.</ref><ref name=Harvard>{{cite journal |title=State action and the public/private distinction |journal=Harvard Law Review |date=2010 |volume=123 |issue=5 |pages=1248–1314 |jstor=40648486 |url=http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/DEVO_10.pdf }}</ref>

Prior to ''Harlow v. Fitzgerald'', the U.S. Supreme Court granted immunity to government officials only if: (1) the official believed in good faith that their conduct was lawful, and (2) the conduct was objectively reasonable.<ref name=Harvard/> However, determining an official's [[Subjective and objective standard of reasonableness|subjective state of mind]] (i.e. did they have a good faith belief that their action was lawful) required a trial, often by jury.<ref name=Harvard/> Concerns over allowing suits to go this far deterred officials from performing their duties, "[diverted] official energy from pressing public issues, and [deterred] able citizens from acceptance of public office",<ref>''Harlow'', 457 U.S. at 814.</ref> the Supreme Court handed down the current rule for qualified immunity: "[G]overnment officials performing discretionary functions generally are 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."<ref name=Harlow818>''Harlow'', 457 U.S. at 818.</ref> Therefore, the application of qualified immunity no longer depends upon an official's subjective state of mind, but on whether or not a [[reasonable person]] in the official's position would have known their actions were in line with clearly established legal principles.

=== ''Saucier v. Katz'' ===
In ''[[Saucier v. Katz]]'' (2001), military officers Saucier and Parker were warned of possible protests during a speech from Vice President Albert Gore, Jr. When Katz began putting up a banner in defense of animal rights, Saucier detained Katz in his military van. Katz sued because he felt his Fourth Amendment rights had been violated. The court ultimately ruled in favor of Saucier, due to qualified immunity.<ref name="ReferenceA">{{ussc|name=Saucier v. Katz|volume=533|page=194|pin=|year=2001}}.</ref> The Supreme Court held that "the ruling on qualified immunity requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest".<ref name=":3">Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151. June 18, 2001</ref> In other words, the analysis applied to claims of excessive force is not the same as the analysis applied to the merits of the claim. The Court's decision in this case provides a two-step inquiry into claims brought against a government official: first, whether the official's actions violated the constitutional rights of the plaintiff, and second, whether those rights were clearly established at the time of the incident.<ref name=":3" />

=== ''Pearson v. Callahan'' ===
The Supreme Court's 2009 decision in [[Pearson v. Callahan|''Pearson et al. v. Callahan'']] overturned its decision in ''Saucier v. Katz'' and the two-step inquiry giving more discretion to the lower courts. The inquiry into the law or into the Constitution in relation to similar cases brought before the courts was up to the courts to decide.<ref name=":2" />

== Application of qualified immunity ==
=== Discretionary function requirement ===
Qualified immunity only applies to acts that are "discretionary" rather than ministerial.<ref name=Harlow818/> Courts specifically distinguish discretionary acts from [[ministerial act]]s.<ref>See e.g. ''Bletz v. Gribble'', [https://www.leagle.com/decision/infco20110527107 641 F.3d 743, 757] {{Webarchive|url=https://web.archive.org/web/20180708133412/https://www.leagle.com/decision/infco20110527107 |date=July 8, 2018 }} ([[6th Cir.]] 2011); ''Kennedy v. Mathis'', [https://www.leagle.com/decision/ingaco20090316117 297 Ga. App. 295, 297, 676 S.E.2d 746, 748] {{Webarchive|url=https://web.archive.org/web/20180708133502/https://www.leagle.com/decision/ingaco20090316117 |date=July 8, 2018 }} (2009); ''Rodriguez v. State'', 218 Md. App. 573, 615 (2014); ''Baptie v. Bruno'', [https://www.leagle.com/decision/invtco20131206f63 195 Vt. 308, 314, 88 A.3d 1212] {{Webarchive|url=https://web.archive.org/web/20180708133316/https://www.leagle.com/decision/invtco20131206f63 |date=July 8, 2018 }} (2013).</ref> A discretionary act requires an official to determine "whether an act should be done or a course pursued" and to determine the best means of achieving the chosen objective.<ref name=AmJur318>{{cite book |series=[[American Jurisprudence]] |edition=2d. |volume=63C |title=Public Officers and Employees |section=§ 318 |page=549 |url=https://archive.org/details/63cAmJur2dPublicOfficersAndEmployees_201512/page/n549 }}</ref> By contrast, a ministerial act is of a "clerical nature"{{snd}}the official is typically required to perform the action regardless of their own opinion.<ref name=AmJur318/> Even ministerial tasks will sometimes involve a small amount of discretion, but this discretion will not necessarily satisfy the requirements of qualified immunity.<ref name=AmJur319>{{cite book |series=[[American Jurisprudence]] |edition=2d. |volume=63C |title=Public Officers and Employees |section=§ 319 |page=553 |url=https://archive.org/details/63cAmJur2dPublicOfficersAndEmployees_201512/page/n553 }}</ref> Conversely, the discretionary function requirement also restricts the availability of qualified immunity to actions taken "within the scope of an official's duties." Thus, if a government official acts beyond the bounds of his authority, he is not protected by qualified immunity.<ref name=":5" />

=== Clearly established law requirement ===
Qualified immunity does not protect officials who violate "clearly established statutory or constitutional rights of which reasonable person would have known".<ref name=Harlow818/> This is an [[objective standard]], meaning that the standard does not depend on the subjective state of mind of the official but rather on whether a [[reasonable person]] would determine that the relevant conduct violated clearly established law.<ref name=AmJur315>{{cite book |series=[[American Jurisprudence]] |edition=2d. |volume=63C |title=Public Officers and Employees |section=§ 315 |page=543 |url=https://archive.org/details/63cAmJur2dPublicOfficersAndEmployees_201512/page/n543 }}</ref>

Whether the law is "clearly established" depends on whether the [[case law]] has addressed the disputed issue or has established the "contours of the right" such that it is clear that the official's conduct is illegal.<ref name=AmJur316>{{cite book |series=[[American Jurisprudence]] |edition=2d. |volume=63C |title=Public Officers and Employees |section=§ 316 |page=545 |url=https://archive.org/details/63cAmJur2dPublicOfficersAndEmployees_201512/page/n545 }}</ref> It is undisputed that Supreme Court opinions can "clearly establish" the rule for the entire country. However, circuit court of appeals opinions may have a more limited effect. [[United States courts of appeals|Circuit courts of appeals]] typically treat their opinions as clearly establishing the law within that circuit<ref>§ 8:22. Post-Harlow qualified immunity test in the circuits and the states: applicable principles (Part I)—Whose decisions determine clearly settled law?, 2 Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 § 8:22</ref>—though the Supreme Court has cast doubt on this theory.<ref>{{ussc|name=City & Cty. of San Francisco v. Sheehan|volume=575|year=2015|docket=13-1412}}.</ref> In order to meet the requirement of clearly established law, the facts of the instant case must also fairly closely resemble the facts of the case relied on as precedent.<ref>{{Cite web|url=https://reason.com/2018/06/13/the-case-against-qualified-immunity-part-3/|archive-url=https://web.archive.org/web/20190527152255/https://reason.com/2018/06/13/the-case-against-qualified-immunity-part-3/|url-status=dead|title=The Case Against Qualified Immunity, Part III|date=June 13, 2018|archive-date=May 27, 2019}}</ref><ref name=":2">Pearson, et al. v. Callahan, 555 U.S. 223 (2009).</ref>

=== Qualified immunity sequencing ===
The concept of testing whether the official action was covered by qualified immunity was first raised in the 1991 case ''Siegert v. Gilley'' (1991) in which the Supreme Court affirmed a dismissal of a lawsuit due to lack of clear demonstration that a constitutional right had been violated at the time of the action as a necessary precursor for any [[judicial relief]].<ref name="ucla lr sequence">{{cite journal | title = Qualified Immunity After Pearson v. Callahan | first = Colin | last = Rolfs | journal = [[UCLA Law Review]] | volume = 59 | pages = 468–502 | year = 2011 |url=https://www.uclalawreview.org/qualified-immunity-after-pearson-v-callahan-2/ }}</ref>

In 2001, the [[U.S. Supreme Court]] in ''[[Saucier v. Katz]]''<ref name="ReferenceA"/> formalized this rigid order, or sequencing, in which courts must decide the merits of a defendant's qualified immunity defense. First, the court determines whether the complaint states a constitutional violation. If so, the next sequential step is to determine whether the right at issue was clearly established at the time of the official's conduct. The Court subsequently modified this mandatory sequencing from ''Saucier'' in ''[[Pearson v. Callahan]]'' in 2009, holding that "the ''Saucier'' protocol should not be regarded as mandatory in all cases,"<ref>{{ussc|name=Pearson v. Callahan|volume=555|page=223|pin=818|year=2009}}.</ref> and that its decision "does not prevent the lower courts from following the ''Saucier'' procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases."<ref>''Pearson'', 555 U.S. at 821.</ref> The ''Pearson'' opinion gave courts the discretion to evaluate either the constitutional violation or the rights issue first. This can have benefits of expediting some cases and reducing waste of resources in the court system, but has also led to cases that focus heavily on one side of the case and weigh in favor of government officials, particularly in the area of [[police brutality]].<ref name="ucla lr sequence"/><ref name="cops who kill"/>

==Objections and criticisms==
===Difficulty of suing public officials===
Critics have argued that qualified immunity makes it excessively difficult to sue public officials for [[police misconduct|misconduct]].<ref>{{cite news |last1=Jaicomo |first1=Patrick |last2=Bidwell |first2=Anya |title=Police act like laws don't apply to them because of 'qualified immunity.' They're right. |url=https://www.usatoday.com/story/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/ |publisher=USA Today |date=20 May 2020 |quote=With that novel invention, the court granted all government officials immunity for violating constitutional and civil rights unless the victims of those violations can show that the rights were 'clearly established'. Although innocuous sounding, the clearly established test is a legal obstacle nearly impossible to overcome. |access-date=June 4, 2020 |archive-url=https://web.archive.org/web/20200603233143/https://www.usatoday.com/story/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/ |archive-date=June 3, 2020 |url-status=live }}</ref> Criticism is aimed in particular at the "clearly established law" test. This test is typically read as requiring not only that an official's behavior likely violates written law but that there exists a clear [[judicial precedent]] that establishes the behavior as unlawful.<ref>{{cite web |title=Frequently Asked Questions About Qualified Immunity |url=https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/ |website=Unlawful Shield |publisher=The Cato Institute |access-date=4 June 2020 |quote=To deny qualified immunity, courts generally require not just a clear legal rule, but a prior case with functionally identical facts. |archive-url=https://web.archive.org/web/20200604231400/https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/ |archive-date=June 4, 2020 |url-status=live }}</ref><ref name=":1">{{Cite news|last1=Chung|first1=Andrew|last2=Hurley|first2=Lawrence|last3=Botts|first3=Jackie|last4=Januta|first4=Andrea|last5=Gomez|first5=Guillermo|date=2020-05-30|title=Special Report: For cops who kill, special Supreme Court protection|language=en|work=Reuters|url=https://www.reuters.com/article/us-usa-police-immunity-scotus-specialrep-idUSKBN22K18C|access-date=2020-06-02|archive-url=https://web.archive.org/web/20200612051417/https://www.reuters.com/article/us-usa-police-immunity-scotus-specialrep-idUSKBN22K18C|archive-date=2020-06-12}}</ref> Critics have noted that in practice this has meant that plaintiffs must prove that there exists a prior court determination made in actual litigation under facts extremely close to those of the case at hand, or else the case is dismissed.<ref>{{cite web |title=What Is Qualified Immunity? |url=https://ij.org/qi-learn-more/ |publisher=Institute for Justice |access-date=4 June 2020 |quote=Qualified immunity means that government officials cannot be held accountable for violating the Constitution unless they violate a "clearly established' constitutional rule. In practice, that means that government officials can only be held liable if a federal court of appeals or the U.S. Supreme Court has already held that someone violated the Constitution by engaging in precisely the same conduct under precisely the same circumstances. |archive-url=https://web.archive.org/web/20200605003150/https://ij.org/qi-learn-more/ |archive-date=June 5, 2020 |url-status=live }}</ref><ref>{{cite news |last1=Dwyer |first1=Devin |title='Qualified immunity' for police getting fresh look by Supreme Court after George Floyd death |url=https://abcnews.go.com/Politics/police-immunity-rule-fresh-supreme-court-george-floyd/story?id=71044230 |publisher=ABC News |date=4 June 2020 |quote='In order for a plaintiff to defeat qualified immunity, they have to find a prior case that has held unconstitutional an incident with virtually identical facts to the one the plaintiff is bringing,' said UCLA law professor Joanna Schwartz. |access-date=June 5, 2020 |archive-url=https://web.archive.org/web/20200604191739/https://abcnews.go.com/Politics/police-immunity-rule-fresh-supreme-court-george-floyd/story?id=71044230 |archive-date=June 4, 2020 |url-status=live }}</ref> Critics argue that the difficulty plaintiffs face in finding an ''exact'' match in both law ''and'' precedent makes it excessively challenging to sue public officials, giving government officials undue latitude for lawless conduct in new or unusual situations.<ref>{{cite news |last1=Jaicomo |first1=Patrick |last2=Bidwell |first2=Anya |title=Police act like laws don't apply to them because of 'qualified immunity.' They're right. |url=https://www.usatoday.com/story/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/ |publisher=USA Today |date=20 May 2020 |quote=Although innocuous sounding, the clearly established test is a legal obstacle nearly impossible to overcome. It requires a victim to identify an earlier decision by the Supreme Court, or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If none exists, the official is immune. Whether the official's actions are unconstitutional, intentional or malicious is irrelevant to the test. |access-date=June 4, 2020 |archive-url=https://web.archive.org/web/20200603233143/https://www.usatoday.com/story/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/ |archive-date=June 3, 2020 |url-status=live }}</ref><ref name="techdirt-qi-appellate">{{Cite web |url=https://www.techdirt.com/articles/20180901/17202640564/appeals-court-judge-qualified-immunity-is-rigged-game-government-almost-always-wins.shtml |title=Appeals Court Judge: Qualified Immunity Is A Rigged Game The Government Almost Always Wins |date=September 5, 2018 |first=Tim |last=Cushing |website=Techdirt |access-date=2019-11-06 |archive-url=https://web.archive.org/web/20190825001256/https://www.techdirt.com/articles/20180901/17202640564/appeals-court-judge-qualified-immunity-is-rigged-game-government-almost-always-wins.shtml |archive-date=August 25, 2019 |url-status=live }}</ref> George Leef, for instance, argued in ''[[Forbes]]'' that:

{{blockquote|This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit legal misconduct unless they violated 'clearly established law'. That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts.<ref>{{cite news |url=https://www.forbes.com/sites/georgeleef/2018/03/21/qualified-immunity-a-rootless-doctrine-the-court-should-jettison/#7ca80a9531c7 |title=Qualified Immunity – A Rootless Doctrine The Court Should Jettison |date=March 21, 2018 |first=George |last=Leef |work=Forbes |access-date=June 3, 2020 |archive-url=https://web.archive.org/web/20200603214809/https://www.forbes.com/sites/georgeleef/2018/03/21/qualified-immunity-a-rootless-doctrine-the-court-should-jettison/#7ca80a9531c7 |archive-date=June 3, 2020 |url-status=live }}</ref>}}

Critics have cited examples such as a November 2018 ruling by the [[United States Court of Appeals for the Sixth Circuit]], which found that an earlier court case ruling it unconstitutional for police to [[wikt:sic#Etymology 2|sic]] dogs on suspects who have surrendered by lying on the ground did not apply under the "clearly established" rule to a case in which Tennessee police allowed their police dog to bite a surrendered suspect because the suspect had surrendered not by lying down but by sitting on the ground and raising his hands.<ref>{{cite news |last1=McNamara |first1=Robert |title=Tear-Gas Grenades and 'Qualified Immunity' |url=https://www.wsj.com/articles/tear-gas-grenades-and-qualified-immunity-11579133525 |publisher=The Wall Street Journal |date=15 January 2020 |access-date=June 4, 2020 |archive-url=https://web.archive.org/web/20200603125754/https://www.wsj.com/articles/tear-gas-grenades-and-qualified-immunity-11579133525 |archive-date=June 3, 2020 |url-status=live }}</ref><ref name="USA Today">{{cite news |last1=Jaicomo |first1=Patrick |last2=Bidwell |first2=Anya |title=Police act like laws don't apply to them because of 'qualified immunity.' They're right. |url=https://www.usatoday.com/story/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/ |publisher=USA Today |date=20 May 2020 |access-date=June 4, 2020 |archive-url=https://web.archive.org/web/20200603233143/https://www.usatoday.com/story/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/ |archive-date=June 3, 2020 |url-status=live }}</ref>

Critics further argue that the "clearly established" standard discourages or delays the ''establishment'' of clear rules, even for common circumstances.<ref name="techdirt-qi-appellate" /> The first litigant to bring a case against an official under a given set of facts is likely to lose because there is as yet no clearly established standard.<ref name="Millhiser">{{cite news |last1=Millhiser |first1=Ian |title=Why police can violate your constitutional rights and suffer no consequences in court |url=https://www.vox.com/2020/6/3/21277104/qualified-immunity-cops-constitution-shaniz-west-supreme-court |work=Vox |date=3 June 2020 |access-date=June 4, 2020 |archive-url=https://web.archive.org/web/20200604054538/https://www.vox.com/2020/6/3/21277104/qualified-immunity-cops-constitution-shaniz-west-supreme-court |archive-date=June 4, 2020 |url-status=live }}</ref> Therefore, such a person may choose not to bring the case at all. Furthermore, even if a case is brought and carried to judgment, there is no certainty the decision will establish a clear and generally applicable legal standard. Until such a standard is articulated, qualified immunity will continue to apply in analogous cases. As the [[Institute for Justice]] puts it, "Qualified immunity means that government officials can get away with violating your rights as long as they violate them in a way nobody thought of before."<ref>{{Cite press release |date=January 16, 2020 |first=J. Justin |last=Wilson |url=https://ij.org/press-release/institute-for-justice-asks-u-s-supreme-court-to-hold-government-officials-accountable-for-destroying-idaho-home-with-grenades/ |title=Institute for Justice Asks U.S. Supreme Court to Hold Government Officials Accountable For Destroying Idaho Home with Grenades |website=Institute for Justice |language=en-US |access-date=January 17, 2020 |archive-url=https://web.archive.org/web/20200116222456/https://ij.org/press-release/institute-for-justice-asks-u-s-supreme-court-to-hold-government-officials-accountable-for-destroying-idaho-home-with-grenades/ |archive-date=January 16, 2020 |url-status=live }}</ref> Similarly, federal judge [[Carlton W. Reeves]] wrote in a case denying qualified immunity, "A cynic might say that with qualified immunity, government agents are at liberty to violate your constitutional rights as long as they do so in a novel way", and called for change.<ref name=":4">{{Cite web |date=May 20, 2024 |title=Green v. Thomas |url=https://s3.documentcloud.org/documents/24674613/green-v-thomas.pdf}}</ref>{{fcn|date=May 2024}}

===Police brutality===
A significant amount of criticism contends that qualified immunity allows [[police brutality]] to go unpunished.<ref name="cops who kill">{{cite news |last1=Chung |first1=Andrew |last2=Hurley |first2=Lawrence |last3=Botts |first3=Jackie |last4=Januta |first4=Andrea |last5=Gomez |first5=Guillermo |title=For cops who kill, special Supreme Court protection |url=https://www.reuters.com/investigates/special-report/usa-police-immunity-scotus/ |publisher=Reuters |date=8 May 2020 |quote=The increasing frequency of such cases has prompted a growing chorus of criticism from lawyers, legal scholars, civil rights groups, politicians and even judges that qualified immunity, as applied, is unjust. Spanning the political spectrum, this broad coalition says the doctrine has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights. |access-date=June 5, 2020 |archive-url=https://web.archive.org/web/20200601022624/https://www.reuters.com/investigates/special-report/usa-police-immunity-scotus/ |archive-date=June 1, 2020 |url-status=live }}</ref> Legal researchers Amir H. Ali and Emily Clark, for instance, have argued that "qualified immunity permits law enforcement and other government officials to violate people's constitutional rights with virtual impunity".<ref name="The-Appeal"/> Supreme Court Justice [[Sonia Sotomayor]] has noted a "disturbing trend" of siding with [[Police ranks of the United States|police officers]] using excessive force with qualified immunity,<ref>{{cite news |url=https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/19/in-an-appropriate-case-we-should-reconsider-our-qualified-immunity-jurisprudence/ |title=In an appropriate case, we should reconsider our qualified immunity jurisprudence |first=Will |last=Baude |date=June 19, 2017 |newspaper=[[The Washington Post]] |access-date=June 3, 2020 |archive-url=https://web.archive.org/web/20200603125414/https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/19/in-an-appropriate-case-we-should-reconsider-our-qualified-immunity-jurisprudence/ |archive-date=June 3, 2020 |url-status=live }}</ref> describing it as "sanctioning a 'shoot first, think later' approach to policing".<ref name="The-Appeal">{{Cite web|url=https://theappeal.org/qualified-immunity-explained/|title=Qualified Immunity: Explained|last1=Ali|first1=Amir H.|last2=Clark|first2=Emily|date=June 20, 2019|website=The Appeal|language=en|url-status=live|archive-url=https://web.archive.org/web/20191107200007/https://theappeal.org/qualified-immunity-explained/|archive-date=November 7, 2019|access-date=2019-11-06}}</ref> She stated:

{{blockquote|We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force&nbsp;... But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.<ref>{{cite news |url=https://www.washingtonpost.com/politics/courts_law/sotomayor-sees-disturbing-trend-of-unequal-treatment-regarding-police-alleged-victims/2017/04/24/dfe8c368-2912-11e7-b605-33413c691853_story.html?noredirect=on |title=Sotomayor sees 'disturbing trend' of unequal treatment regarding police, alleged victims |first=Robert |last=Barnes |newspaper=The Washington Post |date=April 24, 2017 |access-date=June 3, 2020 |archive-url=https://web.archive.org/web/20200607150416/https://www.washingtonpost.com/politics/courts_law/sotomayor-sees-disturbing-trend-of-unequal-treatment-regarding-police-alleged-victims/2017/04/24/dfe8c368-2912-11e7-b605-33413c691853_story.html?noredirect=on |archive-date=June 7, 2020 |url-status=live }}</ref>}}

A 2020 [[Reuters]] report concurred with Sotomayor, concluding that "the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police". The report reviewed over 200 cases involving excess force by police since 2007, and found since the 2009 ''Pearson'' change from mandatory sequencing to discretionary sequencing, plaintiffs have had a more difficult time moving their case past the qualified immunity stage.<ref name="cops who kill"/>

===Judicial activism===
No federal statute explicitly grants qualified immunity—it is a [[judicial precedent]] established by the [[U.S. Supreme Court|Supreme Court]].<ref name="Millhiser"/> While qualified immunity has been repeatedly affirmed by courts and legislation has established similar immunity at the state level, critics have argued that the adoption of qualified immunity in federal law amounts to [[judicial activism]], as the legal doctrine has little basis in written law.<ref name="Cato campaign">{{cite news |last1=Schweikert |first1=Jay |last2=Neily |first2=Clark |title=As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight |url=https://www.cato.org/blog/supreme-court-considers-several-qualified-immunity-cases-new-ally-joins-fight |publisher=The Cato Institute |date=17 January 2020 |quote=Cato launched its strategic campaign to challenge the doctrine of qualified immunity—an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s—on March 1, 2018. |access-date=June 4, 2020 |archive-url=https://web.archive.org/web/20200604234827/https://www.cato.org/blog/supreme-court-considers-several-qualified-immunity-cases-new-ally-joins-fight |archive-date=June 4, 2020 |url-status=live }}</ref><ref name="is-qi-unlawful" /> The late Supreme Court Justice [[Antonin Scalia]] argued as much in his dissent in ''Crawford-El v. Britton'': "[the Supreme Court]  find[s] [itself] engaged&nbsp;... in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have invented—rather than applying the common law embodied in the statute that Congress wrote".<ref>{{cite court |litigants=Crawford-El v. Britton |vol=523 |reporter=U.S. |opinion=574 |pinpoint=96-827 |court=[[Supreme Court of the United States|United States Supreme Court]] |date=May 4, 1998 |url=https://www.law.cornell.edu/supct/pdf/96-827P.ZD1 |access-date=July 14, 2020 |quote=We find ourselves engaged, therefore, in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have invented-rather than applying the common law embodied in the statute that Congress wrote. My preference is, in undiluted form, the approach suggested by Judge Silberman's concurring opinion in the Court of Appeals: extending the 'objective reasonableness' test of ''Harlow v. Fitzgerald'' [...] to qualified immunity insofar as it relates to intent-based constitutional torts.}}</ref> [[Clarence Thomas]] has likewise expressed "growing concern with our qualified immunity jurisprudence", stating that there is no apparent basis for it in the original intent of the law;<ref name="The-Appeal"/> in ''[[Ziglar v. Abbasi]]'', Thomas urged the court to reconsider qualified immunity, which he considered a doctrine that "substitute[s] our own policy preferences for the mandates of Congress".<ref>{{cite news |url=https://www.cbsnews.com/news/supreme-court-qualified-immunity-police-announcement-could-come-soon/ |title=Supreme Court announcement on reexamining qualified immunity for police could come soon |first=Melissa |last=Quinn |date=June 5, 2020 |work=CBS News |access-date=June 7, 2020 |archive-url=https://web.archive.org/web/20200606224040/https://www.cbsnews.com/news/supreme-court-qualified-immunity-police-announcement-could-come-soon/ |archive-date=June 6, 2020 |url-status=live }}</ref> In a case denying qualified immunity and ruling it unconstitutional, federal judge [[Carlton W. Reeves]] wrote, "Congress's intent to protect citizens from government abuse cannot be overridden by judges who think they know better."<ref name=":4" />

Some critics have argued that the Supreme Court's creation of qualified immunity amounts to "gutting"<ref name="Adelman">{{cite news |last1=Adelman |first1=Lynn |title=The Supreme Court's Quiet Assault on Civil Rights |url=https://www.dissentmagazine.org/article/supreme-court-assault-civil-rights-section-1983 |publisher=Dissent |date=Fall 2017 |access-date=June 4, 2020 |archive-url=https://web.archive.org/web/20200604234832/https://www.dissentmagazine.org/article/supreme-court-assault-civil-rights-section-1983 |archive-date=June 4, 2020 |url-status=live }}</ref> Section 1983 of the United States Code, which allows any citizen to sue a public official who deprives them "of any rights, privileges, or immunities secured by the Constitution and laws".<ref>{{cite web |title=42 U.S. Code § 1983. Civil action for deprivation of rights |url=https://www.law.cornell.edu/uscode/text/42/1983 |website=Legal Information Institute |publisher=Cornell Law School |access-date=June 4, 2020 |archive-url=https://web.archive.org/web/20170629005332/https://www.law.cornell.edu/uscode/text/42/1983 |archive-date=June 29, 2017 |url-status=live }}</ref> U.S. District Court Judge Lynn Adelman has argued that "qualified immunity is a limitation on Section 1983 that the Court created in 1982 without support in the statute's text or legislative history".<ref name="Adelman"/> [[University of Pennsylvania]] professor of law David Rudovsky similarly argued that "the Court&nbsp;... has engaged in an aggressive reconstruction of the scope of § 1983&nbsp;... This reorientation of civil rights jurisprudence has blunted the impact of § 1983".<ref>{{cite journal |last1=Rudovsky |first1=David |title=The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights Activism and the Restriction of Constitutional Rights |journal=Faculty Scholarship at Penn Law |date=1989 |url=https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2508&context=faculty_scholarship |access-date=June 4, 2020 |archive-url=https://web.archive.org/web/20200604234850/https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2508&context=faculty_scholarship |archive-date=June 4, 2020 |url-status=live }}</ref>

===Scholarly critiques===
In a 2017 ''[[Yale Law Journal]]'' paper titled "How Qualified Immunity Fails", UCLA law professor Joanna C. Schwartz examined 1,183 Section 1983 cases and found that it was being invoked primarily when it should not have been, and therefore was being ignored or dismissed frequently. Her conclusion was that it is ineffective for its stated goals in such a way that it could not be strengthened, and should be replaced by other mechanisms for obtaining those ends.<ref>{{cite journal |first=Howard M. |last=Wasserman |title=The Empirical Truth About Qualified Immunity |journal=[[Jotwell]] |date=February 23, 2018 |url=https://courtslaw.jotwell.com/empirical-truth-qualified-immunity/ |access-date=June 3, 2020 |archive-url=https://web.archive.org/web/20200603214818/https://courtslaw.jotwell.com/empirical-truth-qualified-immunity/ |archive-date=June 3, 2020 |url-status=live }}</ref><ref name=":0">{{cite web | url=https://www.yalelawjournal.org/pdf/Schwartz_1ki1sac4.pdf | title=How Qualified Immunity Fails | publisher=Yale Law School | work=[[Yale Law Journal]] | date=2017 | access-date=February 26, 2020 | last=Schwartz | first=Joanna C. | archive-url=https://web.archive.org/web/20200607232029/https://www.yalelawjournal.org/pdf/Schwartz_1ki1sac4.pdf | archive-date=June 7, 2020 | url-status=live }}</ref>

The Court has stated that it bases qualified immunity on three factors: a "good faith" defense at common law, making up for the supposedly mistaken broadening of §&nbsp;1983, and serving as a "warning" to government officials. In a 2018 ''[[California Law Review]]'' article, [[University of Chicago Law School]] professor [[William Baude]] states that "there is no such defense, there was no such mistake, and lenity [warning] should not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response."<ref name="is-qi-unlawful">{{cite journal |last1=Baude |first1=William |author1-link=William Baude |title=Is Qualified Immunity Unlawful? |journal=California Law Review |date=18 February 2018 |volume=106 |issue=1 |pages=45 |doi=10.15779/Z38MG7FV8G |quote=Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law 'good faith' defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides 'fair warning' to government officials, akin to the rule of lenity. But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response. The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways. |url=https://lawcat.berkeley.edu/record/1128553 |archive-url=https://web.archive.org/web/20221024140256/https://lawcat.berkeley.edu/record/1128553 |archive-date=October 24, 2022 |access-date=19 October 2023 |url-status=live}}</ref>

In a 2023 ''California Law Review'' article, [[Cardozo School of Law]] professor [[Alexander Reinert]] critiqued qualified immunity in the context of Supreme Court [[derogation]] canon, and also suggested that the legal foundation of qualified immunity is based on the erroneous omission of language in the 1874 [[Revised Statutes of the United States]].<ref name="qi-flawed-foundation">{{cite journal |last1=Reinert |first1=Alexander |author1-link=Alexander A. Reinert |title=Qualified Immunity's Flawed Foundation |journal=California Law Review |date=2023 |volume=111 |issue=1 |pages=201 |doi=10.15779/Z38BK16Q68 |url=https://www.californialawreview.org/print/qualified-immunitys-flawed-foundation/ |url-status=live |archive-url=https://web.archive.org/web/20230823112434/https://www.californialawreview.org/print/qualified-immunitys-flawed-foundation |archive-date=23 August 2023 |access-date=19 October 2023}}</ref> Reinert observed that the [[Enforcement Act of 1871]] included a clause regarding liability with the text, "any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding",<ref>{{cite web |title=Image 55 of U.S. Statutes at Large, Volume 17 (1871-1873) |url=https://www.loc.gov/resource/llsalvol.llsal_017/?sp=55&st=text&r=-0.054,-0.005,0.988,0.884,0 |website=Library of Congress}}</ref> which was not included in the Revised Statutes or {{UnitedStatesCode|42|1983}}. Reinert termed this language the "Notwithstanding Clause". His analysis received press coverage<ref>{{cite news |last1=Liptak |first1=Adam |title=16 Crucial Words That Went Missing From a Landmark Civil Rights Law |work=The New York Times |date=May 15, 2023 |url=https://www.nytimes.com/2023/05/15/us/politics/qualified-immunity-supreme-court.html |access-date=19 October 2023 |archive-url=https://web.archive.org/web/20231014114842/https://www.nytimes.com/2023/05/15/us/politics/qualified-immunity-supreme-court.html |archive-date=14 October 2023 |url-status=live}}</ref> and has been subsequently critiqued by William Baude, who stated, "it was a change introduced by the drafters of the 1874 Revised Statutes, and <em>passed into law by Congress</em>" (emphasis original).<ref>{{cite web |last1=Baude |first1=William |author1-link=William Baude |title=Codifiers' Errors and 42 U.S.C. 1983 |url=https://reason.com/volokh/2023/06/12/codifers-errors-and-42-u-s-c-1983/ |department=The Volokh Conspiracy |website=Reason Magazine |date=June 12, 2023 |access-date=19 October 2023 |archive-url=https://web.archive.org/web/20230802124420/https://reason.com/volokh/2023/06/12/codifers-errors-and-42-u-s-c-1983/ |archive-date=2 August 2023 |url-status=live}}</ref>  The Baude acknowledged that there are thoughtful responses to this critique.<ref>{{Cite web |date=2023-07-24 |title=Jaicomo and Nelson Respond to Codifiers' Errors |url=https://reason.com/volokh/2023/07/24/jaicomo-and-nelson-respond-to-codifiers-errors/ |access-date=2025-04-23 |website=Reason.com |language=en-US}}</ref> Questions regarding the impact of the Notwithstanding Clause on qualified immunity doctrine were presented to the U.S. Supreme Court in a petition for a [[writ of certiorari]] in the case of ''Hulbert v. Pope'', which was denied.<ref name="Hulbert v. Pope">{{cite web |title=Docket for 23-385 |url=https://www.supremecourt.gov/docket/docketfiles/html/public/23-385.html |website=Supreme Court of the United States |access-date=18 October 2023}}</ref>

== Challenges to qualified immunity ==
===Through litigation===
Numerous [[public interest]] organizations litigate in the courts of law to restrict or eliminate qualified immunity. Among them are the [[Institute for Justice]], [[Second Amendment Foundation]], [[Alliance Defending Freedom]], [[NAACP Legal Defense Fund]], the [[MacArthur Justice Center]], the [[American Civil Liberties Union|ACLU]], [[Rights Behind Bars]], and the [[Institute for Constitutional Advocacy and Protection]]. These organizations work is often supported by [[Amicus curiae|amici]] from other public interest organizations including the [[Cato Institute]], [[Law Enforcement Action Partnership]] and [[Restore the Fourth]].<ref name="Cato campaign"/>

In August 2018, Circuit Judge [[Don Willett]] concurred ''[[dubitante]]'' when the [[United States Court of Appeals for the Fifth Circuit]] found that the [[Texas Medical Board]] was entitled to qualified immunity for an unconstitutional warrantless search it made of a doctor's patient records.<ref>{{Bluebook journal |first=|last=Note| title=Recent Case: Fifth Circuit Holds Medical Board Investigators Are Protected by Qualified Immunity in Warrantless Search of Records| volume=132 | journal=[[Harvard Law Review]] | page=2042 | url=https://harvardlawreview.org/2019/05/zadeh-v-robinson/ |date=May 10, 2019}}</ref> Willett called for "thoughtful reappraisal" of the {{"'}}clearly established law' prong of qualified-immunity analysis", citing a tendency for many courts to grant immunity based on no clear precedent, while avoiding the question of whether a Constitutional violation has occurred. Hence, those courts do not establish new law, so "[w]rongs are not righted, and wrongdoers are not reproached."<ref>{{cite news |url=https://www.washingtonpost.com/politics/courts_law/supreme-court-asked-to-reconsider-immunity-available-to-police-accused-of-brutality/2020/06/04/99266d2c-a5b0-11ea-b473-04905b1af82b_story.html |title=Supreme Court asked to reconsider immunity available to police accused of brutality |newspaper=The Washington Post |date=June 4, 2020 |first=Robert |last=Barnes |access-date=June 5, 2020 |archive-url=https://web.archive.org/web/20200605021102/https://www.washingtonpost.com/politics/courts_law/supreme-court-asked-to-reconsider-immunity-available-to-police-accused-of-brutality/2020/06/04/99266d2c-a5b0-11ea-b473-04905b1af82b_story.html |archive-date=June 5, 2020 |url-status=live }}</ref> He wrote:

{{blockquote|
To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the ''first'' to behave badly. Merely proving a constitutional deprivation doesn't cut it; plaintiffs must cite functionally identical precedent that places the legal question "beyond debate" to "every" reasonable officer. Put differently, it's immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful. This current "yes harm, no foul" imbalance leaves victims violated but not vindicated.

[...]

Section 1983 meets [[Catch-22 (logic)|Catch-22]]. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there's no equivalent case on the books. No precedent {{=}} no clearly established law {{=}} no liability. An Escherian Stairwell. Heads government wins, tails plaintiff loses.<ref>{{cite news |last1=Ford |first1=Matt |title=Should Cops Be Immune From Lawsuits? |url=https://newrepublic.com/article/151168/legal-revolt-qualified-immunity |access-date=November 25, 2019 |magazine=[[The New Republic]] |date=September 12, 2018 |archive-url=https://web.archive.org/web/20191126202001/https://newrepublic.com/article/151168/legal-revolt-qualified-immunity |archive-date=November 26, 2019 |url-status=live }}</ref><ref>{{cite court |litigants=Zadeh v. Robinson|vol=902 |reporter=F.3d|opinion=483 |court=5th Cir.|date=2018|url= https://scholar.google.com/scholar_case?case=11429370861168916271 }}</ref>}}

In 2020, there were several cases awaiting a Supreme Court decision involving qualified immunity.<ref name="auto"/><ref>{{Cite news|first=Joanna C.|last=Schwartz|title=Perspective {{!}} Suing police for abuse is nearly impossible. The Supreme Court can fix that. |date=June 3, 2020 |url=https://www.washingtonpost.com/outlook/2020/06/03/police-abuse-misconduct-supreme-court-immunity/|access-date=2020-06-04|newspaper=The Washington Post|language=en|archive-url=https://web.archive.org/web/20200603224217/https://www.washingtonpost.com/outlook/2020/06/03/police-abuse-misconduct-supreme-court-immunity/|archive-date=June 3, 2020|url-status=live}}</ref><ref>{{Cite news|last=Bokat-Lindell|first=Spencer|date=2020-06-02|title=Opinion {{!}} The One Police Reform That Both the Left and the Right Support|language=en-US|work=The New York Times|url=https://www.nytimes.com/2020/06/02/opinion/breonna-taylor-police.html|access-date=2020-06-04|issn=0362-4331|archive-url=https://web.archive.org/web/20200604073203/https://www.nytimes.com/2020/06/02/opinion/breonna-taylor-police.html|archive-date=June 4, 2020|url-status=live}}</ref> However, on June 15, 2020, the [[Supreme Court of the United States|Supreme Court]] declined to hear cases involving revisiting qualified immunity.<ref>{{cite web |last1=Higgins |first1=Tucker |title=Supreme Court declines to hear cases over legal doctrine qualified immunity, which shields police from lawsuits |url=https://www.cnbc.com/2020/06/15/supreme-court-declines-to-hear-cases-over-qualified-immunity.html |website=CNBC |language=en |date=15 June 2020 |access-date=June 15, 2020 |archive-url=https://web.archive.org/web/20200615152632/https://www.cnbc.com/2020/06/15/supreme-court-declines-to-hear-cases-over-qualified-immunity.html |archive-date=June 15, 2020 |url-status=live }}</ref><ref>{{cite web |title=SCOTUS order June 2020 |url=https://www.supremecourt.gov/orders/courtorders/061520zor_f2bh.pdf |website=supremecourt.gov |access-date=June 15, 2020 |archive-url=https://web.archive.org/web/20200615141108/https://www.supremecourt.gov/orders/courtorders/061520zor_f2bh.pdf |archive-date=June 15, 2020 |url-status=live }}</ref> This was until November 2, 2020, when the Supreme Court ruled in a 7–1 ''per curiam'' decision that the 5th Circuit erred in granting two prison guards qualified immunity despite severe abuses.<ref>{{Cite web|url=https://www.scotusblog.com/case-files/cases/taylor-v-riojas/|title=Taylor v. Riojas}}</ref> Erwin Chemerinsky of the UC Berkeley School of Law calls this "a rare civil rights victory on qualified immunity".<ref>{{Cite web|url=https://www.abajournal.com/columns/article/chemerinsky-scotus-hands-down-a-rare-civil-rights-victory-on-qualified-immunity|title = Chemerinsky: SCOTUS hands down a rare civil rights victory on qualified immunity}}</ref>

===Legislative attempts===
On May 30, 2020, [[U.S. Representative]] [[Justin Amash]] ([[Libertarian Party (United States)|L]]-[[List of United States Representatives from Michigan|Michigan]]) proposed the [[Ending Qualified Immunity Act]], stating: "The brutal killing of [[George Floyd]] by Minneapolis police is merely the latest in a long line of incidents of egregious police misconduct&nbsp;... police are legally, politically, and culturally insulated from consequences for violating the rights of the people whom they have sworn to serve".<ref>{{Cite web|last=Bowden|first=John|date=2020-06-02|title=Amash readying legislation allowing victims to sue officers|url=https://thehill.com/homenews/house/500611-amash-readying-legislation-allowing-victims-to-sue-officers|access-date=2020-06-04|website=The Hill|language=en|archive-url=https://web.archive.org/web/20200604111305/https://thehill.com/homenews/house/500611-amash-readying-legislation-allowing-victims-to-sue-officers|archive-date=June 4, 2020|url-status=live}}</ref><ref>{{Cite web|last=Sibilla|first=Nick|title=New Bill Would Abolish Qualified Immunity, Make It Easier To Sue Cops Who Violate Civil Rights|date=June 3, 2020|url=https://www.forbes.com/sites/nicksibilla/2020/06/03/new-bill-would-abolish-qualified-immunity-make-it-easier-to-sue-cops-who-violate-civil-rights/|access-date=2020-06-04|website=Forbes|language=en|archive-url=https://web.archive.org/web/20200604111248/https://www.forbes.com/sites/nicksibilla/2020/06/03/new-bill-would-abolish-qualified-immunity-make-it-easier-to-sue-cops-who-violate-civil-rights/|archive-date=June 4, 2020|url-status=live}}</ref><ref name="auto">{{Cite web|last=Millhiser|first=Ian|date=2020-06-03|title=Why police can violate your constitutional rights and suffer no consequences in court|url=https://www.vox.com/2020/6/3/21277104/qualified-immunity-cops-constitution-shaniz-west-supreme-court|access-date=2020-06-04|website=Vox|language=en|archive-url=https://web.archive.org/web/20200604054538/https://www.vox.com/2020/6/3/21277104/qualified-immunity-cops-constitution-shaniz-west-supreme-court|archive-date=June 4, 2020|url-status=live}}</ref> Representative [[Ayanna Pressley]] ([[Democratic Party (United States)|D]]-[[List of United States Representatives from Massachusetts|Massachusetts]])<ref>{{cite news |last1=Binion |first1=Billy |date=6 June 2020 |title=Rep. Justin Amash Wants To End Qualified Immunity. Where Are the Republicans? |url=https://reason.com/2020/06/06/justin-amash-ayanna-pressley-end-police-qualified-immunity-where-are-the-republicans/ |url-status=live |archive-url=https://web.archive.org/web/20200607011721/https://reason.com/2020/06/06/justin-amash-ayanna-pressley-end-police-qualified-immunity-where-are-the-republicans/ |archive-date=June 7, 2020 |access-date=June 7, 2020 |publisher=Reason}}</ref> and 16 additional cosponsors introduced the bill in the [[US House of Representatives|House of Representatives]] on June 4, 2020,<ref>{{cite web |title=Amash, Pressley introduce bipartisan legislation to end qualified immunity |url=https://amash.house.gov/media/press-releases/amash-pressley-introduce-bipartisan-legislation-end-qualified-immunity |website=Website of U.S. Representative Justin Amash |date=4 June 2020 |access-date=June 7, 2020 |archive-url=https://web.archive.org/web/20200607012310/https://amash.house.gov/media/press-releases/amash-pressley-introduce-bipartisan-legislation-end-qualified-immunity |archive-date=June 7, 2020 |url-status=live }}</ref><ref name="H.R.7085">{{cite web|year=2020|title=H.R.7085 – To amend the Revised Statutes to remove the defense of qualified immunity in the case of any action under section 1979, and for other purposes.|url=https://www.congress.gov/bill/116th-congress/house-bill/7085|url-status=live|archive-url=https://web.archive.org/web/20200605155745/https://www.congress.gov/bill/116th-congress/house-bill/7085|archive-date=June 5, 2020|access-date=September 12, 2020|website=Congress.gov|publisher=Library of Congress}}</ref> As of September 12, 2020, it had 66 cosponsors (65 [[Democratic Party (United States)|Democrats]] and 1 [[Republican Party (United States)|Republican]]).<ref name="H.R.7085"/> A second bill aimed at ending qualified immunity for law enforcement, the Justice in Policing Act of 2020 (H.R.7120), was introduced by Rep. [[Karen Bass]] (D-California) on June 8, 2020.<ref>{{Cite web|title=Justice In Policing Act|date=July 20, 2020|url=https://www.congress.gov/bill/116th-congress/house-bill/7120/text|access-date=2020-12-27|language=en}}</ref> The bill's sponsorship by members of the [[Libertarian Party (United States)|Libertarian]], [[Republican Party (United States)|Republican]], and [[Democratic Party (United States)|Democratic]] parties made it the first bill to have tripartisan support in Congress.

On June 3, 2020, [[US Senator|Senators]] [[Kamala Harris]] ([[Democratic Party (United States)|D]]-[[List of United States Representatives from California|California]]), [[Edward Markey]] ([[Democratic Party (United States)|D]]-[[List of United States Representatives from Massachusetts|Massachusetts]]), and [[Cory Booker]] ([[Democratic Party (United States)|D]]-[[List of United States Representatives from New Jersey|New Jersey]]) introduced a Senate resolution calling for the elimination of qualified immunity for law enforcement.<ref name="Senate-Resolution">{{cite web |title=Harris, Markey, Booker Introduce Senate Resolution to Abolish Qualified Immunity for Law Enforcement, Hold Officers Accountable for Police Brutality |url=https://www.harris.senate.gov/news/press-releases/harris-markey-booker-introduce-senate-resolution-to-abolish-qualified-immunity-for-law-enforcement-hold-officers-accountable-for-police-brutality |website=Website of U.S. Senator for California Kamala Harris |date=3 June 2020 |access-date=June 7, 2020 |archive-url=https://web.archive.org/web/20200607013256/https://www.harris.senate.gov/news/press-releases/harris-markey-booker-introduce-senate-resolution-to-abolish-qualified-immunity-for-law-enforcement-hold-officers-accountable-for-police-brutality |archive-date=June 7, 2020 |url-status=live }}</ref><ref>{{cite web |last1=Budryk |first1=Zach |title=Markey, Harris, Booker to introduce resolution calling for elimination of qualified immunity |url=https://thehill.com/homenews/senate/500922-markey-harris-booker-to-introduce-resolution-calling-for-elimination-of |website=The Hill |date=3 June 2020 |access-date=June 7, 2020 |archive-url=https://web.archive.org/web/20200607014143/https://thehill.com/homenews/senate/500922-markey-harris-booker-to-introduce-resolution-calling-for-elimination-of |archive-date=June 7, 2020 |url-status=live }}</ref> Senators [[Bernie Sanders]] ([[Independent (United States)|I]]-[[List of United States Representatives from Vermont|Vermont]]), [[Elizabeth Warren]] ([[Democratic Party (United States)|D]]-[[List of United States Representatives from Massachusetts|Massachusetts]]), and [[Chris Van Hollen]] ([[Democratic Party (United States)|D]]-[[List of United States Representatives from Maryland|Maryland]]) were cosponsors.<ref name="Senate-Resolution"/> On June 23, 2020, [[Mike Braun|Senator Mike Braun]] (R-Indiana) introduced the Reforming Qualified Immunity Act,<ref>{{Cite web|last=Braun|first=Mike|date=2020-06-23|title=Text – S.4036 – 116th Congress (2019–2020): A bill to amend the Revised Statutes to reform the defense of qualified immunity in the case of any action under section 1979, and for other purposes.|url=https://www.congress.gov/bill/116th-congress/senate-bill/4036/text|access-date=2020-06-29|website=www.congress.gov|archive-url=https://web.archive.org/web/20200629205932/https://www.congress.gov/bill/116th-congress/senate-bill/4036/text|archive-date=June 29, 2020|url-status=live}}</ref> proposing that "to claim qualified immunity under the Reforming Qualified Immunity Act, a government employee such as a police officer would have to prove that there was a statute or court case in the relevant jurisdiction showing his or her conduct was authorized".<ref>{{Cite web|title=Senator Mike Braun introduces Reforming Qualified Immunity Act |date=June 23, 2020 |url=https://www.braun.senate.gov/node/755|access-date=2020-06-29|website=www.braun.senate.gov|language=en|archive-url=https://web.archive.org/web/20200625141258/https://www.braun.senate.gov/node/755|archive-date=June 25, 2020|url-status=live}}</ref>

===State law===
Qualified immunity is a doctrine of federal law, not affected by changes in state law. Nonetheless, some states have passed what they deem to be modifications of qualified immunity in the context of state law claims. These changes do not impact the doctrine of qualified immunity as applied to federal constitutional law. [[Colorado]], [[Connecticut]], [[New Mexico]], and [[New York City]] have either ended qualified immunity altogether or limited its application in court cases involving state law claims.

Through the passing of the Enhance Law Enforcement Integrity Act in June 2020, Colorado became the first state to explicitly remove qualified immunity as a defense for law enforcement officers against state law claims (but not federal constitutional claims).<ref>{{cite news |last1=Kalmbacher |first1=Colin |title=Colorado's Progressive Governor and Legislature Just Ended Qualified Immunity for Police Officers |url=https://lawandcrime.com/live-trials/live-trials-current/george-floyd-death/colorados-progressive-governor-and-legislature-just-ended-qualified-immunity-for-police-officers/ |publisher=Law and Crime |date=June 19, 2020}}</ref><ref>{{Cite web|url=https://leg.colorado.gov/bills/sb20-217|title=Enhance Law Enforcement Integrity}}</ref>{{fcn|date=May 2024}}

On April 7, 2021, Governor [[Michelle Lujan Grisham]] signed the New Mexico Civil Rights Act guaranteeing that no public official "shall enjoy the defense of qualified immunity for causing the deprivation of any rights, privileges or immunities secured by the constitution of" New Mexico. Again, this applies solely to state law claims, not federal constitutional claims. 

The [[New York City Council]] eliminated qualified immunity for city officers in March 2021, as to state law claims but not as to federal claims.<ref>{{cite news |last1=Lambe |first1=Jerry |title=New York Becomes First City to Eliminate Qualified Immunity Protections for Police Officers |url=https://lawandcrime.com/high-profile/new-york-becomes-first-city-to-eliminate-qualified-immunity-protections-for-police-officers/ |website=Law and Crime |date=March 26, 2021}}</ref>

== Relevant cases ==
* ''[[Harlow v. Fitzgerald]]'', 457 U.S. 800 (1982)
* ''[[Saucier v. Katz]]'', 533 U.S. 194 (2001)
* ''[[Hope v. Pelzer]]'', 536 U.S. 730 (2002)
* ''[[Brosseau v. Haugen]]'', 543 U.S. 194 (2004) (dealing with qualified immunity in highly fact-bound cases involving police use of force)
* ''[[Pearson v. Callahan]]'', 555 U.S. 223 (2009)
* ''[[Safford Unified School District v. Redding]]'', 557 U.S. 364 (2009) (dealing with qualified immunity in a case involving a search of a student by school officials)
* ''[[Camreta v. Greene]]'', 563 U.S. 692 (2011)
* ''[[Plumhoff v. Rickard]]'', 572 U.S. 765 (2014) (dealing with qualified immunity in highly fact-bound cases involving police use of force)
* ''[[Hernandez v. Mesa]]'', 589 U.S. ____ (2020)
* ''[[Novak v. City of Parma]]'', 21-3290 (2022)

==See also==
{{Portal|Law}}
* [[Absolute immunity]]
* ''[[Ignorantia juris non excusat]]''
* [[Sovereign immunity]]

==References==
{{Reflist}}

==External links==
* [https://www.reuters.com/investigates/special-report/usa-police-immunity-scotus/ For cops who kill, special Supreme Court protection] - Investigative report from [[Reuters]] with statistics and case studies

{{Law}}
{{George Floyd protests}}

{{DEFAULTSORT:Qualified immunity}}
[[Category:1967 in American law]]
[[Category:Corruption in the United States]]
[[Category:Judicial activism]]
[[Category:Law enforcement controversies]]
[[Category:Legal doctrines and principles]]
[[Category:Legal immunity]]
[[Category:Police corruption]]
[[Category:Police misconduct in the United States]]