Qualified Immunity

Qualified immunity denies justice to those deprived of their federally guaranteed rights.

After the Civil War, Congress passed the Klu Klux Klan Act, which included 42 U.S.C. § 1983, a provision that allows plaintiffs to sue state defendants for violations of their constitutional rights. In 1967, the Supreme Court identified a defense to this provision in the narrow instance of false arrests made in “good faith.” The Court soon began applying this qualified immunity defense to all § 1983 suits, expanding the doctrine to protect a broadening array of misconduct. At present, government officials can be shielded from liability under the qualified immunity doctrine unless their conduct violates a “clearly established” right. A right is “clearly established” when reasonable people would be capable of understanding whether they are violating it.

Some courts take this to mean that a § 1983 case needs to mirror a prior case with virtually identical facts in order for a plaintiff to defeat a qualified immunity defense. When a victim experiences flagrant constitutional violations but cannot point to an identical prior case, then the government official will be granted qualified immunity, even if misconduct is grievous, obvious, and unmistakeable. Because a court can always point to some subtle factual distinction between cases, victims of police brutality and other forms of state-sanctioned abuse are left with no recourse—even in instances where they have suffered indisputable constitutional harm.

There is a growing cross-ideological consensus that qualified immunity misunderstands the law, denies justice to victims, and fails to hold officials accountable for their egregious constitutional violations. But despite its growing chorus of critics, qualified immunity remains a viable shield for prison officials, police officers, and other government actors to avoid liability for their misconduct. This is particularly the case in prison conditions litigation, where the defense of qualified immunity allows corrections officers and jailors to evade judicial scrutiny for violence, neglect, and other unconstitutional conduct against incarcerated individuals.

To address this significant impediment for incarcerated plaintiffs, we act as appellate and amicus counsel in cases whose trial level outcomes reveal the palpable absurdity of this doctrine in its current expansive form. Through our advocacy efforts in every forum, including the Supreme Court itself, we hope to abolish this doctrine or else significantly curtail its application.