Judge Don Willett of the 5th Circuit summed up the problem with qualified immunity well:

Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because no one’s answered them before. 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 defendants win, tails plaintiffs lose. 1

And lose plaintiffs do—even those who have had their constitutional rights violated in the most egregious ways, as these examples of policing abuses from our dataset illustrate:

  • Jessop v. City of Fresno: Officers allegedly stole over $200,000 in cash and rare coins from the plaintiffs while executing a search warrant. The 9th Circuit granted qualified immunity because there was no previous case holding it unconstitutional to steal property during a search. 2  
  • Collie v. Barron: A police officer shot and paralyzed David Collie, an innocent, unarmed man who matched the broad description (shirtless, black) of suspects in a nearby robbery. The officer shot him in the back as he pulled his hand out of his pocket to indicate where he was headed. Although the 5th Circuit noted that “this tragic case exemplifies an individual’s being in the wrong place at the wrong time,” it nonetheless stated that “under current governing law, we must affirm [the grant of qualified immunity].” 3
  • Cass v. City of Abilene: Police obtained a warrant to search a gold exchange store for a possible misdemeanor reporting violation, allegedly in retaliation for speech by one of the owners, Marcus Cass, criticizing a policy they favored. Instead of simply serving the warrant, the defendants used Cass and his co-owner’s supposed “anti-police” attitude as an excuse to conduct a tactical raid. Allegedly without announcing himself as a police officer, an officer entered Cass’ office with his gun drawn and his badge out of view. Seeing only an armed man dressed in street clothes and body armor, Cass did not know he was police and drew his own firearm. He was shot and ultimately died from his wounds. The 5th Circuit granted the defendants qualified immunity. 4

These and many other cases show how courts can grant qualified immunity even when police officers blatantly violate the Constitution. However, as we found, qualified immunity’s protections do not stop with police. The doctrine in fact shields a much wider array of government officials than commonly thought, from social workers to university deans to mayors and beyond. It also shields a wide array of conduct, from allegations of punishment for protected speech—as in the ordeals faced by Sylvia Gonzalez and Anthony Novak—to alleged due process violations, including cases with extreme consequences:

  • Cope v. Cogdill:  A suicidal inmate was placed in a cell with a 30-inch telephone cord, which he used to strangle himself as the sole jailer on duty watched. The jailer failed to call emergency services after the inmate became unresponsive. The 5th Circuit noted that “watching an inmate attempt suicide and failing to call for emergency medical assistance is not a reasonable response.” Nevertheless, given the lack of sufficiently similar case law, it granted the jailer qualified immunity. 5   
  • Sampson v. County of Los Angeles: A woman who had recently taken custody of her niece was repeatedly sexually harassed by a social worker assigned to the case. The 9th Circuit noted that the right to be free from sexual harassment by public officials was clearly established in workplaces and schools. However, because the sexual harassment occurred in the context of providing social services, the court granted the social worker qualified immunity. In doing so, the court lamented that “the Supreme Court’s exceedingly narrow interpretation of what constitutes a ‘clearly established’ right precludes us from holding what is otherwise obvious to us.” 6   

Qualified immunity adds disadvantages for plaintiffs even beyond the challenge of identifying clearly established precedents—making the ability to vindicate rights turn on arbitrary factors, making rights unclear, and affording government defendants special advantages. And it is not clear that qualified immunity even serves the goals motivating the Supreme Court’s creation of, and continued support for, the doctrine.

Our results add to a growing body of research finding qualified immunity unacceptably burdens plaintiffs and fails at its goals. This strengthens the argument for the Supreme Court to overturn Harlow, the case in which it created the doctrine four decades ago. If it will not, Congress can and should act to end qualified immunity.

Our results add to a growing body of research finding qualified immunity unacceptably burdens plaintiffs and fails at its goals. This strengthens the argument for the Supreme Court to overturn Harlow, the case in which it created the doctrine four decades ago. If it will not, Congress can and should act to end qualified immunity.

In addition, state legislatures and city councils can create their own causes of action to hold government officials accountable and ban qualified immunity as a potential defense in state or local civil rights lawsuits. 7  To date, two states have taken such action: Colorado banned the defense for police officers, while New Mexico banned it for all government workers. 8  In a similar vein, New York City created a cause of action allowing victims of unreasonable search and seizure or excessive force to sue New York Police Department employees; importantly, the legislation disallows the qualified immunity defense. 9

Short of ending qualified immunity, the Supreme Court could temper the doctrine by broadening the clearly established standard to encompass not just precedent from the Supreme Court and the same federal circuit but also precedent from the other circuits and state courts, as well as government-issued guidance. This would make the ability to vindicate rights less arbitrary, and it would also prevent absurdities like government officials receiving qualified immunity for conduct their own agency explicitly disallows simply because the relevant circuit court has not yet encountered similar conduct. 10

Better yet, the Supreme Court could eliminate the clearly established standard and instead allow courts to evaluate claims based on whether a government official was acting in good faith. Ending qualified immunity altogether would better ensure that government officials who violate the Constitution are held accountable. However, under such a good faith standard, at least intentional and obvious constitutional violations would not receive protection.

Whether through outright abolition or significant reform, courts and lawmakers can and should act to end the unbounded impunity allowed by the current doctrine of qualified immunity.

Sylvia Gonzalez