[4] The U.S. Supreme Court first introduced the qualified immunity doctrine in 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.
[7] 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.
The text of 42 USC § 1983 reads as follows:[10] 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 ...Similarly, under Bivens v. Six Unknown Named Agents, plaintiffs may sue for damages if federal officials violate their constitutional rights.
[15] However, determining an official's subjective state of mind (i.e. did they have a good faith belief that their action was lawful) required a trial, often by jury.
[18] 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".
[36][37] George Leef, for instance, argued in Forbes that: 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.
[43][full citation needed] A significant amount of criticism contends that qualified immunity allows police brutality to go unpunished.
[6] 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".
[44] She stated: We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force ...
[51] University of Pennsylvania professor of law David Rudovsky similarly argued that "the Court ... has engaged in an aggressive reconstruction of the scope of § 1983 ...
[54][5] 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 § 1983, and serving as a "warning" to government officials.
"[48] 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.
His analysis received press coverage[57] and has been subsequently critiqued by William Baude, who stated, "it was a change introduced by the drafters of the 1874 Revised Statutes, and passed into law by Congress" (emphasis original).
[58] 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.
[47] By January 2020, this campaign had garnered the support of a cross-ideological spectrum of public interest organizations, including the ACLU, the Alliance Defending Freedom, the Institute for Justice, the NAACP Legal Defense Fund, and the Second Amendment Foundation.
[60] 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.
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.
[67][68] 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.
[69] Erwin Chemerinsky of the UC Berkeley School of Law calls this "a rare civil rights victory on qualified immunity".
[75] 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.
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.