Qualified immunity shields police officers and other government officials from liability in damages actions unless they violated "clearly established law." Although the Supreme Court has long described qualified immunity as a powerful protection for "all but the plainly incompetent or those who knowingly violate the law," the Roberts Court has made qualified immunity's shield stronger than ever.

The Court's opinions make clear that plaintiffs can defeat qualified immunity only if her circuit or the Supreme Court has held unconstitutional conduct so factually similar that "every 'reasonable official would [have understood] that what he is doing violates that right.'" And, in recent years, the Court has dedicated an outsized portion of its docket to reviewing—and virtually always summarily reversing—denials of qualified immunity in the lower courts for failing to hold plaintiffs to that exacting standard.

Despite the Roberts Court's apparent commitment to qualified immunity, there are also cracks in the doctrine's armor. Most recently, in his concurrence in Ziglar v. Abbasi, Justice Thomas criticized the doctrine for bearing little resemblance to the common law at the time the Civil Rights Act of 1871 became law and recommended that "[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence." Much attention has been paid to Justice Thomas's call to reconsider qualified immunity. But Justices have been raising questions about qualified immunity for decades.

In 1997, Justice Breyer suggested that defendants should not be protected by qualified immunity if they are certain to be shielded from financial liability by their employer. In 1992, Justice Kennedy indicated that qualified immunity doctrine might be unnecessary to shield government defendants from trial given the Court's summary judgment jurisprudence. And Justice Sotomayor, sometimes joined by Justice Ginsburg, has repeatedly expressed concern that the Court's qualified immunity decisions contribute to a culture of police violence. In other words, five Justices currently on the Court have publicly questioned the common law foundations and policy justifications for qualified immunity.

If the Court does take Justice Thomas's suggestion to reconsider qualified immunity and takes seriously available evidence about qualified immunity's historical precedents and current operation, the Court could not justify continued existence of the doctrine in its current form. Qualified immunity is historically unmoored, ineffective at achieving its policy ends, and detrimental to the development of constitutional law. Scholarly defenses of the doctrine are similarly unpersuasive. The Court should not feel constrained by stare decisis given the questionable foundations of qualified immunity and the liberty the Court has taken with its scope and structure over the fifty years of its existence. And there are many ways, short of downright repeal, that the Court could adjust the doctrine to better reflect its role in constitutional litigation. In an article to be published this month in Notre Dame's Federal Courts issue, I expand on these arguments. Today, and in posts for the remainder of this week, I offer excerpts from that article.

The first argument to reconsider qualified immunity should be well known to readers, as it was powerfully set out by William Baude in a recent article and was invoked by Justice Thomas in Ziglar: ample evidence undermines the purported common law foundations of the doctrine.

When the Supreme Court first announced that executive officers were entitled to qualified immunity in Pierson v. Ray, the Court described qualified immunity as grounded in common law defenses of good faith and probable cause that were available for state law false arrest and imprisonment claims. But, as Baude and others have shown, history does not support the Court's claims about qualified immunity's common law foundations. When the Civil Rights Act of 1871 was passed, government officials could not assert a good faith defense to liability. A government official found liable could petition for indemnification and thereby escape financial liability. But if a government official engaged in illegal conduct he was liable without regard to his subjective good faith. Indeed, the Supreme Court expressly rejected a good faith defense to liability under Section 1983 after it became law. The Court's conclusion in Pierson that a good faith immunity protected the defendant officers from liability is, as Robert Alschuler has argued, "inconsistent with the common law and many of the Court's own decisions."

Moreover, even if one believed that the Court's decision in Pierson accurately reflected the common law, today's qualified immunity doctrine bears little resemblance to the protections announced in Pierson. Although qualified immunity was initially available to government officials who acted with a subjective, good faith belief that their conduct was lawful, the Supreme Court in Harlow eliminated consideration of officers' subjective intent and focused instead on whether officers' conduct was objectively unreasonable. Even when a plaintiff can demonstrate that a defendant was acting in bad faith, that evidence is considered irrelevant to the qualified immunity analysis. The Court has repeatedly made clear that a plaintiff seeking to show that an officer's conduct was objectively unreasonable must find binding precedent or a consensus of cases so factually similar that every officer would know that their conduct was unlawful. And qualified immunity applies to all types of constitutional claims, not only claims for which an officer's good faith might otherwise be relevant. None of these aspects of qualified immunity can be found in the common law when Section 1983 became law, or in Pierson.

To its credit, the Supreme Court has long recognized that it cannot ground its qualified immunity jurisprudence in the common law. Indeed, thirty years ago, the Supreme Court acknowledged that it had "completely reformulated qualified immunity along principles not at all embodied in the common law." The Court reformulated qualified immunity with a specific goal in mind—to shield government officials against various harms associated with insubstantial lawsuits. Tomorrow, I will show that qualified immunity is neither necessary nor particularly well-suited to achieve this goal. But Justice Thomas has raised a more fundamental critique of the Court's turn away from the common law.

In Ziglar, Justice Thomas writes that qualified immunity should conform to the "common-law backdrop against which Congress enacted the 1871 Act," rather than "the sort of 'freewheeling policy choice[s]' that we have previously disclaimed the power to make." If four other Justices share Justice Thomas's view, then they could vote to limit qualified immunity to those defenses available at common law in 1871. As this discussion makes clear, conforming qualified immunity doctrine to the common law in place in 1871 would require dramatically limiting qualified immunity doctrine or doing away with the defense altogether. On the other hand, if five or more Justices do not mind that qualified immunity doctrine currently takes a form far different than the common law in 1871, and do not mind that the doctrine has been structured by the Court to advance its interest in shielding government officials from burdens associated with being sued, then it becomes important to consider the extent to which the doctrine achieves its policy goals. I turn to this topic tomorrow.

[UPDATE, from Eugene Volokh: When I first posted this, I inadvertently failed to change the author name to Joanna's; I've now corrected that.]