Revising qualified immunity is one of the proposed police reforms.
- Click here for the article.
Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations—like the right to be free from excessive police force—for money damages under federal law so long as the officials did not violate “clearly established” law. Both 42 U.S.C. § 1983—a statute originally passed to assist the government in combating Ku Klux Klan violence in the South after the Civil War—and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) allow individuals to sue government officials for money damages when they violate their constitutional rights. Section 1983 applies to state officials, while Bivens applies to federal officials. Because damages are often the only available remedy after a constitutional violation has occurred, suits for damages can be a crucial means of vindicating constitutional rights. When government officials are sued, qualified immunity functions as an affirmative defense they can raise, barring damages even if they committed unlawful acts. (Qualified immunity is not, however, a defense to claims for injunctive relief.)
The Supreme Court has generally traced qualified immunity back to the immunities available to government actors when officials were sued for common law torts during the 19th century. The basic idea is that when Congress enacted § 1983 in 1871, it incorporated the then-existing immunities into the statute, which the Supreme Court has also extended to Bivens suits. However, recent scholarship has called into question the Supreme Court’s account of the government immunities available in 1871, whether Congress intended them to be defenses to § 1983 claims, and the coherence of the relationship between the history and the modern doctrine.
