The Intractability of Qualified Immunity

Alan K. Chen*

The federal common law doctrine of qualified immunity, a key feature of American civil rights law, protects public officials from damages lawsuits unless their conduct violates “clearly established . . . constitutional rights of which a reasonable person would have known.”¹ The Supreme Court designed the doctrine to strike a balance between the desire to permit individuals to enforce their constitutional rights by suing government officials for damages and the need to alleviate the perceived burdens on those officials and the government in responding to such claims.² As the rich body of literature³ in this area illustrates, qualified immunity presents fascinating and complex legal theory questions. At the same time, disputes about its proper implementation reflect its enormous significance for practitioners in routine civil rights litigation. Indeed, it is fair to say that the doctrine has now puzzled, intrigued, and frustrated legal academics, federal judges, and litigators for half a century.⁴

This Essay offers an internal critique of qualified immunity law that explains why these problems remain intractable and why, unfortunately, there is little hope for resolution of the doctrine’s central dilemmas, short of either abandoning immunity or making it absolute.⁵ The Essay breaks down its discussion of qualified immunity into three distinct, but related, categories, and argues that the challenges presented within each category are difficult, if not impossible, to overcome. First, it addresses what can best be described as qualified immunity’s foundational jurisprudential tensions. Embedded in the doctrine are several first-level legal theory problems that can be identified and discussed, but for which there are ultimately no “right” answers. These tensions can be seen, for example, in the operationalization of the doctrine as an open-ended reasonableness standard rather than a bright-line rule, the conceptual challenge of distinguishing pure questions of law from mixed questions of law and fact, and the appropriate level of generality at which “clearly established constitutional rights” are articulated. Indeed, as the latter question suggests, the very meaning of constitutional rights underlies all conversations about qualified immunity.

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© 2018 Alan K. Chen. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, University of Denver Sturm College of Law. I am grateful to the Notre Dame Law Review for inviting me to participate in this year’s Federal Courts, Practice, and Procedure issue. I am indebted to Karen Blum, Dick Fallon, John Jeffries, Justin Marceau, Alex Reinert, Larry Rosenthal, and Joanna Schwartz for providing thoughtful comments on an earlier draft of this Essay. Thanks also to Laura Martinez and Sarah Spears for excellent research support. Any errors or omissions are mine.

1 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

2 Id. at 813–14.

3 See infra notes 23–24.

4 Qualified immunity’s origins can be reasonably traced to the Supreme Court’s decision in Pierson v. Ray, 386 U.S. 547, 555–57 (1967).

5 See infra text accompanying notes 17–19.