Efforts to Reform Qualified Immunity

There are growing calls to curtail or even abolish the court-created doctrine of qualified immunity. For instance, Supreme Court Justice Clarence Thomas has written separately from his colleagues to “note [his] growing concern with [the Supreme Court’s] qualified immunity jurisprudence.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1870 (2017) (Thomas, J., concurring). In particular, Justice Thomas wrote that the Court’s qualified immunity analysis is no longer engaged in interpreting the will of the Congress that enacted § 1983 and other important federal statutes in the Civil Rights Act of 1871. Id. at 1870–71. Failing this, Justice Thomas expressed concern that “[o]ur qualified immunity precedents instead represent precisely the sort of ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to make.” Id. at 1871 (quoting Rehberg v. Paulk, 566 U.S. 356, 363 (2012)). Justice Thomas concluded that “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.” Id. at 1872. Justice Thomas has since reiterated his desire to revisit the doctrine. Baxter v. Bracey, 140 S. Ct. 1862, 1862–65 (2020) (dissenting from the denial of certiorari).

Justice Thomas is not alone among Supreme Court Justices in calling for fundamental changes to qualified immunity jurisprudence. Even as of 2018, “five of the Justices . . . on the Court have authored or joined opinions expressing sympathy” with various doctrinal, procedural, and pragmatic critiques of qualified immunity. Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1800 (2018) (citing current Justices Thomas and Sotomayor and former Justices Kennedy, Breyer, and Ginsburg); see also Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting) (“[O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has not purported to be faithful to the common-law immunities that existed when § 1983 was enacted, and that the statute presumably intended to subsume.”).

Additionally, there are growing calls across lower federal courts to rethink and rework the qualified immunity analysis or do away with qualified immunity altogether. See, e.g., Cox v. Wilson, 971 F.3d 1159, 1165 (10th Cir. 2020) (Lucero, J., joined by Phillips, J., dissenting from the denial of rehearing en banc) (arguing that “the relentless transformation of qualified immunity into an absolute shield must stop”) (citing Est. of Jones by Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th Cir. 2020)); McKinney v. City of Middletown, 49 F.4th 730, 756 (2d Cir. 2022) (Guido Calabresi, J., dissenting) (“[T]he doctrine of qualified immunity—misbegotten and misguided—should go.”); Jefferson v. Lias, 21 F.4th 74, 87 (3d Cir. 2021) (McKee, J., joined by Restrepo & Fuentes, JJ., concurring) (“[T]he deference to law enforcement that consistently results in qualified immunity in excessive force cases is inconsistent with the vast amount of research in such cases as well as the evolving national consensus of law enforcement organizations.”); Sampson v. Cnty. of Los Angeles, 974 F.3d 1012, 1025 (9th Cir. 2020) (Hurwitz, J., concurring in part and dissenting in part) (emphasizing that the judge-made doctrine of qualified immunity is found nowhere in § 1983); Zadeh v. Robinson, 928 F.3d 457, 478–81 (5th Cir. 2019) (Willett, J., concurring) (“I must restate my broader unease with the real-world functioning of modern immunity practice.”). Recently, a Fifth Circuit judge pointedly stated that Congress has the power to abolish qualified immunity, yet it should not have to do so because the doctrine was court-made. Wearry v. Foster, 33 F.4th 260, 279 (5th Cir. 2022) (Ho, J., dubitante).

Outside the courtroom, prominent legal scholars and judges have also challenged the modern application of the qualified immunity doctrine. See, e.g., Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1798, 1799 (2018) (arguing that “the Court [can]not justify the continued existence of the doctrine in its current form”); William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 48–49 (2018) (arguing that the modern doctrine of qualified immunity has no legal basis); Karen M. Blum, Qualified Immunity: Time to Change the Message, 93 Notre Dame L. Rev. 1887, 1892, 1935 (2018) (arguing that the inefficient and ineffective qualified immunity doctrine should be replaced with respondeat superior). Senior Judge Jon O. Newman of the Second Circuit recently put pressure on the original basis and subsequent application of the doctrine and proposed recommendations for reforming § 1983 cases before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the U.S. House of Representatives Judiciary Committee. Examining Civil Rights Litigation Reform, Part 1: Qualified Immunity: Hearing Before the Subcomm. on Const., Civ. Rts., and Civ. Liberties of the H. Comm. On the Judiciary, 117th Cong. (2022).

Finally, subject matter interest groups such as the Cato Institute have taken up the call “that qualified immunity itself is unjustified.” Kelsay v. Ernst, Amicus Curiae Brief at 3, No. 17-2181 (8th Cir. Nov. 1, 2018), available at https://ij.org/wp-content/uploads/2018/12/Kelsay-amicus.pdf. Cato has pressed this issue because of “the lack of legal justification for qualified immunity, the deleterious effect it has on the ability of citizens to vindicate their constitutional rights, and the subsequent erosion of accountability among public officials that the doctrine encourages.” Id. at 1.

In addition to growing skepticism from both sides of the political spectrum surrounding the doctrine’s suitability for the present day, the very origins of qualified immunity are under attack. Alexander A. Reinert, Qualified Immunity’s Flawed Foundation, 111 Cal. L. Rev. 201 (2023). Professor Alexander Reinert argues that the Court’s reasoning in the 1967 case, Pierson v. Ray, 386 U.S. 547 (1967), where the doctrine of qualified immunity for police officers originated, is deeply flawed. Id. at 204. The Pierson Court inappropriately relied on a statutory interpretation technique which typically disfavors the displacement of common law claims or rights; the Court instead disfavored the displacement of a common law defense (qualified police officer immunity) in the face of newly created, substantive § 1983 statutory rights. Id. at 206–07. Notably, former Justice Antonin Scalia rejected the applied canon of construction (the Derogation Canon) in its entirety. Id. at 218. Furthermore, Fifth Circuit Judge Don Willett has endorsed Reinert’s argument as a compelling and even a “game-changing” one for abolishing the doctrine. Rogers v. Jarrett, No. 21-20200, 2023 WL 2706752, at *15 (5th Cir. Mar. 30, 2023) (Willett, J., concurring).

Therefore, it is clear that qualified immunity has attracted heated criticism from many sources that span the political spectrum. In our experience, this criticism is unquestionably deserved. In a separate blog post from January 2025, we further describe the doctrine of qualified immunity and its sometimes deeply troubling application by judges.

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