A Qualified Defense of Qualified Immunity

Aaron L. Nielson* & Christopher J. Walker**

Qualified immunity, as John Jeffries has remarked, is “the most important doctrine in the law of constitutional torts.”¹ That is because it shields a government official from a civil suit for monetary damages unless said official violates “clearly established” constitutional rights.² As highlighted by the other contributions to this annual federal courts issue, qualified immunity has generated substantial commentary and criticism over the years. Such critical attention should come as no surprise. After all, the doctrine seeks to balance competing values that are in tension: “On one hand, government officials sometimes suffer no personal liability even when they violate constitutional rights. But at the same time, the threat of punishing an officer for violating previously unknown rights could chill legitimate governmental action.”³

In recent years, two new fronts of attack have emerged. This Essay responds to both and provides a qualified defense of qualified immunity. Part I addresses Will Baude’s argument that qualified immunity finds no support in positive law.⁴ Part II turns to Joanna Schwartz’s pioneering empirical work that has been marshaled to question qualified immunity’s effectiveness as a matter of policy.⁵

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© 2018 Aaron L. Nielson & Christopher J. Walker. 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 authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor, J. Reuben Clark Law School, Brigham Young University.

**Associate Professor, The Ohio State University Moritz College of Law. For helpful feedback on prior drafts, the authors thank Fabio Arcila, Jr., Aditya Bamzai, Andy Hessick, Randy J. Kozel, Jeffrey Pojanowski, Thomas Rovito, and Joanna C. Schwartz.

1 John C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 Fla. L. REV. 851, 852 (2010).

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

3 Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 3 (2015).

4 See William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45 (2018).

5 Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017) [hereinafter Schwartz, How Qualified Immunity Fails]. We also briefly discuss Schwartz’s prior groundbreaking empirical work on how individual officers are indemnified in civil rights litigation. See, e.g., Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014) [hereinafter Schwartz, Police Indemnification].