What will ending
qualified immunity do?

Justice Sotomayor has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” In a Supreme Court opinion in 2018, joined by Ruth Bader Ginsberg, she wrote that qualified immunity “is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” Read her full dissent.

Professor Schwartz, a leading expert in qualified immunity, argues that qualified immunity has no basis in common law and does not achieve its intended policy goals. Read her full argument.

Professor Reinert, a leading scholar on qualified immunity, recently published an article insisting that it is "flawed from the ground up." He states, "there is no foundation to the interpretive premise upon which qualified immunity rests." He shows how the original text of the 1871 Civil Rights Act contains explicit language demonstrating the inapplicability of qualified immunity to Section 1983, and that the Supreme Court has misapplied relevant canons of statutory interpretation. He states, "the Court has failed to grapple with the strong arguments that no immunity doctrine at all should apply in Section 1983 actions." Read the full argument.

Conservative Justice Thomas has also spoken out about his issues with qualified immunity, saying that he has “doubts about our qualified immunity jurisprudence” and that “(the Supreme Court’s) §1983 qualified immunity doctrine appears to stray from the statutory text.” Read his full dissent.

Even across the political aisle, there is contempt for the use of qualified immunity as a defense. Judge Willett, a Trump appointee, describes how, “(to) some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior––no matter how palpably unreasonable––as long as they were the first to behave badly.” He goes even further, describing how this judicially created doctrine “excuses constitutional violations.” Read his full argument.

A former Trump appointee, Grasz has questioned the qualified immunity doctrine and stated that it should be reformed. In his dissent in Kelsay v Ernst, Grasz asserts that failing to be clear on the law is “a judicially created exception to a federal statute that effectively prevents claimants from vindicating their constitutional rights.” Read his full dissent.