A Thread on Qualified Immunity

Qualified immunity is a judge-made doctrine that has suffered from ignorance of its own history. Indeed, Justice Thomas has traced its history in a recent dissent from denial of certiorari. Think what you want, but J. Thomas is right.

The doctrine is not only discredited but has lost its historical and precedential moorings; for it began when Southern policemen arrested freedom riders for violating a yet to be declared as unconstitutional segregation law.

In the later 1983 action, the Court made it clear that officers acting under the misguided belief that they could enforce the “whites only” rules were entitled to a “qualified immunity” simply because the local law had not yet been held unconstitutional. This doctrine — which tracks the old common law concept of “good faith” reliance has been distorted to grant license to ignore constitutional parameters unless a nearly identical fact-pattern has presented itself in that federal circuit.

This is a far cry from misguided (or racist) enforcement of an existing local law.

If qualified immunity is to continue, the burden should shift to police to explain how and why they believed their specific conduct was permissible or lawful.

The same policy interest of avoiding unneeded litigation can be achieved as is now claimed to be vindicated by the broken doctrine of qualified immunity.

-Albert Turner Goins