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Qualified Immunity: Where Did the Controversial Judicial Doctrine Come From?

New podcast episode traces the origin of a doctrine that protects law enforcement from suits for violations of constitutional rights

Arlington, Va.—Qualified immunity is the controversial judicial doctrine that allows law enforcement officers and other government officials to escape from lawsuits in which people allege that their constitutional rights were violated. Calls for the Supreme Court and lawmakers to reform or eliminate qualified immunity have echoed from across the political spectrum. But because qualified immunity was created through a series of judicial actions over decades rather than by a single law, it can be difficult to understand its origins.

The Institute for Justice (IJ) recently released a new episode of the “Bound By Oath” podcast that clearly explains the critical Supreme Court decisions that form the foundation of qualified immunity. The episode also delves into how the doctrine has been applied in several recent cases, including one in which now-Supreme Court Justice Amy Coney Barrett ruled against granting qualified immunity.

“To understand qualified immunity and how it works, you have to see how it came to be in the first place,” said Director of IJ’s Center for Judicial Engagement Anthony Sanders. “Some of the foundational cases that built the doctrine had little to do with police, yet today the doctrine is primarily applied to allow police to escape lawsuits before they go to a jury.”

IJ Attorney Anya Bidwell, a leader of IJ’s Project on Immunity and Accountability, explained: “There was little historical basis for the Supreme Court’s invention of its current qualified immunity standard in 1982, and none for what it has become today. We hope that by uncovering policy-based, ahistorical roots of qualified immunity, we can encourage judges to engage more deeply in cases that come before them and encourage lawmakers to consider legal reforms that could give people a clear path to justice when their rights are violated.”

Under qualified immunity, government workers can only be held accountable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. The Supreme Court has not been very clear about what it means for the law to be clearly established. Is it enough that there is a caselaw pronouncing a general act—like exceeding a consent to enter someone’s home—unconstitutional? Or do you need a case specifically stating that exceeding this consent through the same means as in your situation—say teargassing a house instead of entering through a door—is unconstitutional? Due to this uncertainty, there is quite a bit of variance in lower-court qualified immunity decisions. Two officers committing nearly identical violations of rights may get two different rulings, depending on the judge or the panel they draw.

As John Ross, producer and narrator of Bound By Oath, summarized the latest episode: “Ever since the Supreme Court invented qualified immunity, it has become harder and harder for victims of often truly shocking unconstitutional misconduct to get their day in court. The bedrock principle of our legal system that there must be a remedy when a right is violated no longer seems to apply.”

While qualified immunity stands as a barrier to lawsuits over constitutional rights, the right to sue state officials for violations of the U.S. Constitution at all exists primarily thanks to Section 1983, a law that is celebrating 150 years since its passage. IJ and the Center for Judicial Engagement will mark this anniversary with a free webinar April 20 at noon EDT: “Outrage Legislation: Civil Rights & Section 1983 at 150 Years.” More information and link to register HERE.

Section 1 of the 1871 Ku Klux Klan Act—ultimately codified as Section 1983—allowed people to sue individuals who deprived them of their constitutional rights. At the time, black Americans were routinely subject to violence and harassment at the hand of KKK members. State officials often looked the other way or enabled crimes, leaving individuals with no way to seek justice. The webinar will discuss the history of Section 1983, how it lay dormant for nearly a century, how it was revived by the Supreme Court in 1961 and how it is used today.

IJ’s Center for Judicial Engagement (CJE) educates the public about the proper role of the courts in enforcing constitutional limits on the size and scope of government. CJE sponsors events where judges, professors, members of the bar and the general public come together to discuss the issues of the day in relation to judicial engagement. It sponsors scholarship, op-eds and other writing on our constitutional liberties and the courts’ role in protecting them.

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