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January 11, 2017

"Is Qualified Immunity Unlawful?"

The title of this post is the title of this provocative new article authored by William Baude and now available via SSRN. Here is the abstract:

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point.  This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.

Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983.  One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.

But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons.  There was no such defense; there was no such mistake; lenity ought not apply.  And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.

The unlawfulness of qualified immunity is of particular importance now.  Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways.  In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference.  Rather than doubling down, the Court ought to be beating a retreat.

Though technically not a sentencing article, any conceptual and/or doctrinal strike against qualified immunity seems likely also to be a blow against the absolute immunity that right now protects from litigation scrutiny the sentencing decisions made by prosecutors and judges.

January 11, 2017 at 09:48 AM | Permalink


I wouldn't necessarily say it's unlawful even if I do think it's contrary to the originalist understanding. At the time of the Constitution, there was a doctrine called the "nullity doctrine" that basically said that anything without Constitutional authority is void. That included orders from the President. There was a case where a naval officer seized a Dutch ship on direct orders from the President. It turns out there was no lawful authority to seize the ship. The Supreme Court had no problem letting the Dutch Captain sue and recover damages. Another famous case is In Re Neagle where the Supreme Court had to justify why a body guard who protected a Supreme Court Justice was authorized to do so in order to stop a murder prosecution going forward. Good faith was never an argument in either case. Under the Common Law, there were doctrines of immunity, but they did not apply to law enforcement agents and they were not qualified.

That being said, for a modern doctrine, one could infer that qualified immunity under section 1983 was more or less acquiesced to by Congress and is an implicit statutory term at this point. If Congress wanted, they could abolish qualified immunity without constitutional issue, but they haven't. I'm not sure the Court would buy that, but it's at least a proposition supported by judicial principles.

Posted by: Erik M | Jan 11, 2017 3:20:36 PM

Immunity will grow an entire industry. Liability will shrink it. There are many experiments in history that prove this equation.

It should be the policy to immunize new industries, the railroad in the 1800's, the internet in the 1990's. The KKK shrank after they were hanged under the KKK Act. They grew when the troops were removed from the South. They shrank after the FBI and torts went after them in the 1970's.

Torts and criminal liabilities therefore are stealthy forms of industrial planning by people who do not know anything, and have been turned into mental cripples by their indoctrination, the lawyer profession.

Repeal of the Eleventh Amendment is the surest road to shrinking government. As a lesser form of liability, the literal language should be re-emphasized by the legislature, which is citizens may not sue another state. The state of the citizen is not immunized by the constitution. That immunity came from a Supreme Court decision.

Bill argued that we must immunize government to kidnap people in the form of arrest, and to keep them in cages for our benefit. We have to immunize it to kill our enemies without prosecution for our defense. Such immunities have validity if enacted formally by the legislature. It may not be decided by know nothing lawyers with no accountability to the voter.

When the Executive Branch pierces the immunity of the police in consent decrees, the result is a hideous irony. In order to protect young black males they have crushed the morale of the police. As a result hundreds if not thousands of young black males will die as the police leans back, and relaxes, just answering 911 calls, and waiting for retirement.

Immunity and liability should be argued and formally enacted by legislature, not by a judiciary, nor by an execute agency.

Posted by: David Behar | Jan 11, 2017 11:01:49 PM

Interesting article & like Orin Kerr's historical research on the exclusionary rule, appreciate how history doesn't just go in one ideological direction. Hope the new justice realizes this.

Posted by: Joe | Jan 12, 2017 12:07:17 PM

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