By Erwin Chemerinsky: Dean and professor of law at the UC Berkeley Law School

Qualified immunity is a type of legal immunity. The defense of qualified immunity protects "government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." [Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)].

Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions. Although qualified immunity frequently appears in cases involving police officers, it also applies to most other executive branch officials. This article presents the analysis of Professor Erwin Chemerinsky, dean of the UC Berkeley School of Law, from his August 2021 webinar about the legal framework of qualified immunity as interpreted by the U.S. Supreme Court.

I. Historical and background and context

42, United States, Code section 1983 “Lawsuits against those acting under color of State law violate the constitution and laws of the United States”. This law was adopted in 1871 as part of the Civil Rights Acts but is rarely used between 1871 and 1961. In 1961 this changed when the Supreme Court decided Monroe v. Pape. There the Supreme Court said that a state or local official could be sued for violating the Constitution, whether the person was following state or local law or violating state or local law. Before that, many courts have assumed that in order to say that a state official was under color of law, they had to show they were acting pursuant to government policy. Monroe v. Pape says whether it’s an authorized or unauthorized act, if the person is a state actor, working with a state or local government, their constitutional violations give rise to a lawsuit.

In 1971, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court said that federal government officers could be sued for money damages directly under the fourth Amendment. Subsequently, the Supreme Court expanded that to actions against federal officers violating the fifth Amendment and also for violating the eighth Amendment. Lower courts extended this in other areas.

1983 is written in seemingly absolute language. It seems to be a strict liability statute. It says anyone acting under color of state law who violates the constitution of the United States is liable. There are no immunities that were mentioned in 1983 when it was adopted. There is one immunity now mentioned in 1983 for judges but that did not come until much later. Nor is there any other federal statute that creates immunity in such suits.

It’s important as we begin this discussion today to recognize that the law of immunity is entirely created by the Supreme Court. All governments officers who were sued for money damages had some kind of immunity. For some officials it’s absolute immunity. The court has said that for prosecutors performing prosecutorial tasks, legislators performing legislative tasks, judges performing judicial tasks, law enforcement testifying as witnesses, the president for presidential tasks. All have absolute immunity. They can’t be sued for money damages at all for the actions within the scope of these duties.

Apart from these officers that have absolute immunity, all other government officials when sued for money damages have qualified immunity. The Supreme Court is increasingly treated qualified immunity as a very substantial obstacle to civil suits for money damages.

II. The basic test.

I alluded to it coming from a 1982 case, Harlow v. Fitzgerald. Now the Supreme Court began formulating qualified immunity before this. Through a couple of decisions for example in the 1970s, the Supreme Court said that an officer would be liable if he either acted in an objectively unreasonable manner or if he acted subjectively in bad faith.

Harlow v. Fitzgerald, 457 U.S. 731 (1982).

This case changes that by saying qualified immunity is entirely an objective test. Officers performing discretionary functions, are liable if they violate clearly established law that a reasonable officer should know.

Bryce Harlow was a counselor to President Richard Nixon. Ernie Fitzgerald was an analyst at the Defense department who testified about costs overruns in building a transport plane. Nixon ordered Fitzgerald fired. Harlow did the firing, Fitzgerald sued saying it violated the First Amendment rights. The Supreme Court said in a companion case, Nixon v. Fitzgerald, that the president has absolute immunity. But the Court said, the high-level executive official who carried out the firing only had qualified immunity. The court articulated the test for qualified immunity. The Court said, if subjective bad faith was enough for liability, it would be too easy for suits to be brought and ultimately go to trial.

Ashcroft v. Al-Kidd, 563 U.S. 731 (2011).

“A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” In this case, the Supreme Court reformulated the test of qualified immunity. This case involves a man Abdul Al-Kidd who is apprehended at Chicago O’Hare Airport as a material witness warrant. Turns out the government never intended to use it as material witness. He sued among others, the Attorney General saying that authorizing the use of material witness warrant violated his rights. The Supreme Court in anonymously ordered the case dismissed in the base of qualified immunity. The Court said that the officers performing a discretionary function were liable only if they violate clearly established law that every reasonable officer knows. The Court said that it has to be a right that is established “beyond debate”.

District of Columbia v. Wesby, 138 S.Ct. 577 (2018).

This case is one of the most recent formulations of qualified immunity by the Court. It was a Fourth Amendment case and the Court concluded there was no violation of it. You can see how the Supreme Court was taking a very robust expansive view of the scope of qualified immunity:

“Under our precedents, officers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’ ‘Clearly established’ means that, at the time of the officer's conduct, the law was ‘sufficiently clear’ that every ‘reasonable official would understand that what he is doing’ is unlawfulIn other words, existing law must have placed the constitutionality of the officer's conduct ‘beyond debate.’ This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’ To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be ‘settled law,’ which means it is dictated by ‘controlling authority or ‘a robust consensus of cases of persuasive authority.’ It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. Otherwise, the rule is not one that ‘every reasonable official’ would know. The ‘clearly established’ standard also requires that the legal principle clearly prohibit the officer's conduct in the particular circumstances before him. The rule's contours must be so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ This requires a high ‘degree of specificity.’ We have repeatedly stressed that courts must not ‘define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.’ A rule is too general if the unlawfulness of the officer's conduct ‘does not follow immediately from the conclusion that [the rule] was firmly established.”

 III. Immunity as an affirmative test.

Gomez v. Toledo, 446 U.S. 635 (1980). In that case the Supreme Court expressly held that qualified immunity is an affirmative defense. Now there’s many things that are important that flow from it being an affirmative defense. An affirmative defense has to be raised by the defense and its answer, or there has to be an effort by the defense later to file an amended answer.

This question of the burden of proof is one where there is disagreement among the lower courts. Some courts have held that the burden shifts to the plaintiff to show that the right allegedly violated was clearly established. See, e.g., Corbitt v. Vickers, 929 F.3d 1304 (11th Cir. 2019).

Other courts place a burden on the defendant. See, e.g., Slater v. Deasey, 789 Fed.Appx. 17 (9th Cir. 2019).

IV. The sequence of analysis.

In Saucier v. Katz 2001 case, the Supreme Court prescribed that when there’s a question of qualified immunity, first the court taking the facts should decide if there’s a constitutional violation. And second, if so, they should decide whether it’s a violation of clearly established law that every reasonable officer should know. There’s a virtue to this approach. Even if the Court in that case, on the latter finds qualified immunity, at least it would decide if there’s a constitutional violation, to guide future cases.

Eight years after Saucier v. Katz, in Pearson v. Callahan, 129 S.Ct. 808 (2009). The Supreme Court unanimously said that the two-step approach is not required. When a court is considering qualified immunity, it does not have to first determine if there is a constitutional violation before deciding whether there is clearly established law that the reasonable officer should know. So if a court wants to find qualified immunity without analyzing if there is a constitutional violation, it’s able to do so.

But there is a cost to doing this: if the courts don’t decide whether there is a constitutional violation, always decide based on qualified immunity, there is no constitutional violation for the future.

The case Sims v. City of Madisonville, 894 F.3d 692 (5th Cir. 2018). This is the fourth time in three years that an appeal has presented the question whether someone who is not a final decisionmaker can be liable for First Amendment retaliation. Addressing the first-step liability question is ‘especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.’ That is the case here. First Amendment retaliation claims do not arise in criminal litigation (as, for example, a Fourth Amendment claim often would), and this issue of individual liability would not arise in other civil suits, such as those against a municipality, in which qualified immunity does not apply. Because this is a question unique to section 1983 First Amendment claims brought against individual defendants, we conclude that clarifying the liability question is important to provide guidance to public employees who may find themselves on either side of the ‘v’ in these lawsuits that can raise important issues of whether employees who challenge corrupt governmental practices are protected in exercising First Amendment rights.” was very instructive. It pointed out how in several occasions an issue would come before the court in everyone they dismiss based on the latter question. But first we need to decide whether there is a constitutional violation, give guidance for the future.

V.  Application of the Harlow test.

 A. What law?

In Wilson v. Layne, 526 U.S. 603 (1999), the Supreme Court answers this question. This case involves the FBI and other federal law enforcement officials, taking reporters with them on private property while the government officials were executing search warrants. And the Supreme Court said that this violated the Fourth Amendment but then found that the federal officers were protected by qualified immunity. Indicates that clearly established law can be based on decisions of Supreme Court, controlling authority from that jurisdiction: Court of Appeals/highest court of state, law of other jurisdictions: consensus of persuasive authority.

District of Columbia v. Wesby, 138 S.Ct. 577 (2018). “We have not yet decided what precedents--other than our own-- qualify as controlling authority for purposes of qualified immunity.” There are dozens of instances where the Supreme Court has said that. This had led defendants to try to argue that only a Supreme Court decision can create clearly established law and overcome qualified immunity. So far, the circuits have consistently rejected that.

Irish v. Fowler, 979 F.3d 65 (1st Cir. 2020). In that case the first circuit says that precedents from other circuits can create clearly established law. It’s not just the decisions of the Supreme Court.

Cahoo v. SAS Analytics, 912 F.3d 887 (6th Cir. 2019). “To determine whether a constitutional right is clearly established, we must look first to decisions of the Supreme Court, then to decisions of this [C]ourt and other courts within our circuit, and finally to decisions of other circuits.”. That reflects an accurate statement of the law.

B. Does there have to be a case on point?

No: Hope v. Pelzer, 536 U.S. 730 (2002). Police guards are not protected by qualified immunity even if there is no case on point. In this case the police guards tied a prisoner in Alabama to a hitching post, left him in hot sun for many hours and without giving water. The prisoner got injured and sued the guards for a violation of the 8th Amendment. The Court of Appeals for the 11th Circuit said that it was cruel and unusual punishment but no case on point was identified so the guards got protected by the qualified immunity.

The Supreme Court held that a case on point is not necessary in order to overcome qualified immunity. Officers should have been on notice that this conduct was unconstitutional, even there though there are not cases on point finding it to be unconstitutional.

Taylor v. Riojas, 141 S.Ct. 52 (2020). The Supreme Court employed the same argumentation in this case for correctional officer despite the lack of case on point. In this case a prisoner in Texas sued the officers based on a violation of the 8th Amendment for unsanitary living conditions in a cell. The Court of Appeals for the 5th Circuit said that it was cruel and unusual punishment but no case on point was identified so the officers got protected by the qualified immunity. The Supreme Court overturned this decision reaffirming that a case on point is not necessary. As a matter of fact, any reasonable correctional officer should have realized that Trent Taylor’s conditions of confinement offended the Eighth Amendment, the U.S. Court of Appeals for the 5th Circuit erred in granting the officers qualified immunity.

Yes: City of Escondido, California, 139 S.Ct. 500 (2019). “[W]e have stressed the need to identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.... While there does not have to be a case directly on point, existing precedent must place the lawfulness of the particular [action] beyond debate.... Of course, there can be the rare obvious case, where the unlawfulness of the officer's conduct is sufficiently clear even though existing precedent does not address similar circumstances.... But a body of relevant case law is usually necessary to clearly establish the answer....” (quoting District of Columbia v. Wesby) Brosseau v. Haugen, 125 S.Ct. 496 (2004). Shooting a fleeing suspect who’s flight may harm others is not a clearly established use of excessive force. The Court held that because this case was on the “hazy border between excessive and acceptable force”

Brosseau did not violate the clearly established rightof freedom from excessive force.

Safford Unified School Dist. v. Redding, 129 S.Ct. 2633 (2009). School officials violated the Fourth Amendment in strip searching a seventh-grade girl on suspicion that she has prescription strength ibuprofen. However, school officials were protected by qualified immunity because there was not clearly established law at the time this occurred.

Ashcroft v. Al-Kidd, 131 S.Ct. 2074 (2011). The Attorney General is protected by qualified immunity when sued for money damages for improperly detaining an individual under the material witness statute.

Wood v. Moss, 134 S.Ct. 2056 (2014). Secret service agents were protected by qualified immunity when they moved anti-Bush demonstrators further and allowed pro-Bush demonstrators to be closer to the President.

Lane v. Franks, 134 S.Ct. 2369 (2014). A government employee’s First Amendment rights are violated when he is fired for truthful testimony given pursuant to a subpoena, but the defendant is protected by qualified immunity.

C.   The need for the right to be established a specific level of abstraction

Kisela v. Hughes, 138 S.Ct. 1148 (2018). Police officer Andrew Kisela is entitled to qualified immunity because his actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

City & Cnty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765 (2015). “The real question is whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempting to accommodate her disability. Rather, we simply decide whether the officers’ failure to accommodate Sheehan’s illness violated clearly established law. It did not. To begin, nothing in our cases suggests the constitutional rule applied by the Ninth Circuit. The Ninth Circuit focused on Graham v. Connor, but Graham holds only that the ‘objective reasonableness’ test applies to excessive-force claims under the Fourth Amendment. . . That is far too general a proposition to control this case. ‘We have repeatedly told courts -and the Ninth Circuit in particular- not to define clearly established law at a high level of generality.’ Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.” “[E]ven if ‘a controlling circuit precedent could constitute clearly established federal law in these circumstances,’ it does not do so here.”)

White v. Pauly, 137 S.Ct. 548 (2017). “Today, it is again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’ As this Court explained decades ago, the clearly established law must be “particularized” to the facts of the case. Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.’”

Therefore, the more the Court wants law to be established in a very specific level of abstraction, the more qualified immunity functionally becomes absolute immunity.

 D.   Excessive force

Saucier v. Katz, 533 U.S. 194 (2001). In a civil rights case alleging constitutionally excessive force, the tests for qualified immunity and reasonableness are distinct; a finding of excessive force does not preclude a finding of qualified immunity.

Therefore, the Supreme Court reversed the Court of Appeals for the 9th Circuit and held that qualified immunity analysis must proceed in two steps. A court must first ask whether "the facts alleged show the officer’s conduct violated a constitutional right. Then, if a constitutional right was violated, the court would go on to determine whether the constitutional right was “clearly established”.

 VI.   Private actors

Wyatt v. Cole, 504 U.S. 158, 165 (1992). Private actors do not get qualified immunity defense.

Richardson v. McKnight, 521 U.S. 399 (1997). Private prison guards who are sued under Section §1983 may not assert the defense of qualified immunity.

They cannot be protected by the qualified immunity because it only covers the exercise of discretion by government officials.

Filarsky v. Delia, 132 S.Ct. 1657 (2012). A private contractor operating under a contract with the government may claim qualified immunity when sued under §1983.

Estate of Jensen by Jensen v. Clyde, 2021 WL 787451 (10th Cir. March 2, 2021). Private doctor who was employed by county on part-time basis, in providing medical services to inmates at county jail where he worked alongside the jail's officers and full-time staff, had ability to raise qualified immunity defense.

VII.  Changing qualified immunity?

Qualified immunity became a popular vocabulary especially because of the police cases. The question of abolishing qualified immunity has been raised and this would imply strict liability for officials. This discontinuance would increase the compensation for casualties. It would also enhance deterrence. However, this solution shows some skepticism and does not seem politically possible.

The main issue would indeed be a change that would mitigate the absolute nature of qualified immunity. It is important to remind that this qualified immunity does not come from the Constitution but from the Supreme Court interpretation of Section 1983. Therefore, the Congress could revise the immunity statute and change it by law enforcement.

In cases involving access to force by police officers, their liability could be imposed based on proofs of subjective bad faith or objective manners and thus to ensure that immunity does not apply to officials in some cases.

To conclude the case Marbury v. Madison reminds us that rights are meaningless without remedies. Fortunately, the Court has some remedies to counter the qualified immunity of officials through money damages to the victims.

Published with permission granted to us by author Prof. Erwin Chemerinsky Dean and Professor of Law at UC Berkeley Law school