Qualified immunity is a legal doctrine in United States law that grants government officials—in the performance of their duties—immunity from prosecution or lawsuits unless the prosecutor or plaintiff shows that the official violated civil or constitutional rights, or acted outside of their scope of authority.Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
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",. extending to "all [officials] but the plainly incompetent or those who knowingly violate the law".. Qualified immunity applies only to government officials in civil litigation, and does not protect the government itself from suits arising from officials' actions.
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. Starting around 2005, courts increasingly applied the doctrine to cases involving the use of excessive or 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.
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.
Bivens and 42 USC § 1983 lawsuits Qualified immunity frequently arises in civil rights cases, particularly in lawsuits arising under 42 USC § 1983 and Bivens v. Six Unknown Named Agents (1971). 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:.
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. However, not all Constitutional violations give rise to a Bivens cause of action.Actions Against Federal Agencies and Officers, 14 Fed. Prac. & Proc. Juris. § 3655 (4th ed.) Thus far the Supreme Court has recognized Bivens claims for violations of the Fourth Amendment,. the Fifth Amendment's equal protection component of due process,. and the Eighth Amendment, but as of 2022, the Supreme Court has severely restricted the availability of Bivens claims..
Harlow v. Fitzgerald The modern test for qualified immunity was established in Harlow v. Fitzgerald (1982)..
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. 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. 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",Harlow, 457 U.S. at 814. 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."Harlow, 457 U.S. at 818. 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.. 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".Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151. June 18, 2001 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.
Pearson v. Callahan The Supreme Court's 2009 decision in 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.
Application of qualified immunity Discretionary function requirement Qualified immunity only applies to acts that are "discretionary" rather than ministerial. Courts specifically distinguish discretionary acts from ministerial acts.See e.g. Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. 2011); Kennedy v. Mathis, 297 Ga. App. 295, 297, 676 S.E.2d 746, 748 (2009); Rodriguez v. State, 218 Md. App. 573, 615 (2014); Baptie v. Bruno, 195 Vt. 308, 314, 88 A.3d 1212 (2013). 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. By contrast, a ministerial act is of a "clerical nature"the official is typically required to perform the action regardless of their own opinion. Even ministerial tasks will sometimes involve a small amount of discretion, but this discretion will not necessarily satisfy the requirements of qualified immunity. 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.
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". 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.
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. 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. Circuit courts of appeals typically treat their opinions as clearly establishing the law within that circuit§ 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—though the Supreme Court has cast doubt on this theory.. 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.Pearson, et al. v. Callahan, 555 U.S. 223 (2009).
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.
In 2001, the U.S. Supreme Court in Saucier v. Katz 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,". 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."Pearson, 555 U.S. at 821. 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.
Objections and criticisms Difficulty of suing public officials Critics have argued that qualified immunity makes it excessively difficult to sue public officials for misconduct. 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. 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. 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. George Leef, for instance, argued in Forbes that: