So where does qualified immunity come from? The Supreme Court justified the doctrine primarily as an interpretation of common law immunities for government officials, which were supposed to be well established when section 1983-1871 was enacted. In other words, according to the Court, these immunities were at the time principles of law so well understood that, even if the law itself does not say anything about them, they must nevertheless be understood as being applicable to the law. The Supreme Court has the power to terminate the doctrine of qualified immunity that it has created. As law professors Aaron Nielson and Christopher Walker explain in a recent article, criticism of qualified immunity can generally be divided into “two fronts of attack”: first, that it is a bad law, and second, that it is bad policy. George Floyd`s death at the hands of Minneapolis police in May 2020 and the national unrest his death sparked turned qualified immunity into an issue of national importance, seemingly overnight. Journalists and commentators of all stripes — including the New York Times, Fox News, Slate and Reason — have all pointed to the direct link between George Floyd`s death and qualified immunity. This obscure legal doctrine, once known only to civil rights lawyers and jurists, has appeared on billboards at protests across the country. And the federal and state legislatures have finally begun to address the issue. If qualified immunity applies, pecuniary damages are not available, even if there is a violation of the constitution. If qualified immunity does not apply, while the government employee or official is technically liable for monetary damages, the government agency almost always pays. Thus, qualified immunity protects states and local governments from being required to pay damages for actions that have not yet been found unconstitutional by a court. Some critics have argued that the creation of qualified immunity by the Supreme Court amounts to an “erosion”[50] of 1983 U.S.C. §, which allows any citizen to sue a public official who “deprives him or her of all rights, privileges, or immunities guaranteed by the Constitution and the laws.” [51] Justice Lynn Adelman of the United States District Court held that “qualified immunity is a limitation of the 1983 section created by the Court in 1982 with no basis in the text or legislative history of the Act.” [50] David Rudovsky, a law professor at the University of Pennsylvania, also argued that “the court …
has aggressively reconstructed the scope of § 1983. This reorientation of civil rights jurisprudence has mitigated the effects of section 1983. [52] The U.S. Supreme Court first introduced the doctrine of qualified immunity in Pierson v. Ray (1967), a case argued at the height of the civil rights movement. It is stated that it was originally introduced to protect law enforcement officers from frivolous lawsuits and financial liability in cases where they acted in good faith in unclear legal situations. [5] [6] The reality is that qualified immunity, rather than serving as an effective professional tool, simply protects law enforcement from civil lawsuits, which are often one of the only tools that victims of police violence – who are disproportionately numerous people of colour – must hold law enforcement accountable for their nefarious actions. Qualified immunity applies only to “discretionary” rather than ministerial acts. [16] The courts explicitly distinguish discretionary and ministerial acts. [18] A discretionary act requires a public servant to decide “whether to take an action or follow a path” and to determine the best way to achieve the chosen objective. [19] In contrast, an official act is “administrative in nature” – the public servant is generally required to perform the act independently of his or her own opinion. [19] Even ministerial functions sometimes require limited discretion, but this does not necessarily meet the requirements of qualified immunity.
[20] See the IJ project on immunity and liability, which includes a number of submissions filed by the IJ to address qualified immunity, as well as some of the most important academic papers that explain excellent work explaining the problem. Also, be sure to switch from Cato Institute to Unlawful Shield. Or, if you only have 30 seconds, watch this TikTok video. The development of qualified immunity began in 1871 when Congress passed 42 U.S.C. Section 1983, which holds government employees and officials personally liable for monetary damages if they violate a person`s constitutional rights. State and local police officers may be prosecuted under section 1983. Until the 1960s, only a few prosecutions under section 1983 were successfully filed. In 1967, the Supreme Court recognized qualified immunity as a defence to claims under section 1983. In 1982, the Supreme Court adopted the current doctrine test. Qualified immunity is generally available when the law that a government official has violated is not “clearly established.” Yes. Qualified immunity also applies when officials intentionally or recklessly violate the law.
The main consideration in an analysis of qualified immunity is whether there is a previous court case that explicitly states that the particular acts of a public servant are unconstitutional.