Lawyers are regularly put in the awkward position of explaining to a client why an idea that strikes the client as eminently reasonable won’t work. There’s no law, we say, to support such an argument. Every once in a while, we get smacked for sound advice: but what about qualified immunity for police, the client responds. And they’re right.

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point.

University of Chicago lawprof Will Baude argues that QI is unlawful. This comes at the same time the Supreme Court issued a per curiam opinion in White v. Pauly, which Greg Doucette contends is the Court’s way of telling us the QI exception has just swallowed the rule.

As every lawyer is taught in law school, each case is unique and “rises or falls on its own merits.” Meaning, in practice, any trial or appellate judge even remotely inclined to protect bad police from the consequences of their bad decisions can easily distinguish any given case from all prior precedent sufficiently to avoid finding a “clearly established” right. And, even worse, the Supreme Court has ensured there will be fewer such cases to ever reach a jury for new particularized fact scenarios to become clearly established precedent, as avoiding trial is the entire point of ending the case at the summary judgment stage with a finding of qualified immunity.

The problem stems from the ironically phrased condition that must be shown to overcome QI, that the conduct violate a “clearly established right.” What makes this ironic is that this condition was fabricated by the Court from whole cloth, there being no “clearly established right” for immunity for police. What does the statute say?

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Notice what you don’t read in there? No qualified immunity. No clearly established right requirement. An exception for judges, but for cops? Not a word. And yet, not only does it exist, but it’s a doctrine. How is that possible? Will Baude explains:

Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity. But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.

Or to be more blunt, the statute clearly and unequivocally creates liability for “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” without reservation, and the Supreme Court said, “nah, this makes us feel bad for cops, so not gonna do it.”

There are any number of statutory construction and interpretation doctrines that could be raised in opposition to the Court, but it really doesn’t require a lot of heavy lifting. Congress passed an unqualified law, and the Court chose to pull a qualification out of its collective rump because it wanted to.

No matter which pretty rhetorical bow was tied around the “doctrine” of qualified immunity, the fact remains that the Court just made it up out of nothing. And in violation of the basic rules that constrain law from flights of fancy in the first place, making lawyers look like morons and liars. When we explain there is absolutely no statutory basis to pursue a theory of law, it’s undermined by the Supreme Court’s inclination to do exactly that when they feel like it. And excoriate us for making the frivolous argument when they don’t.

To say that qualified immunity is, at this point, deeply embedded in the law is unremarkable. Since Harlow v. Fitzgerald, 457 U.S. 800 (1982), no doubt exists that it is established law. But is it good law to have firmly established and baseless bad law? If the Supreme Court held that anyone arrested on a Tuesday was presumed guilty, then reaffirmed that ruling subsequently, would we shrug and walk away?

One would ordinarily expect a backlash from such activism that would challenge the legitimacy of the Court, but then, QI benefits cops and other government types, who not only get the benefit of the Court’s appreciation for their selfless service, but some gymnastical logic to serve and protect those who are supposed to protect and serve us.

Is Greg right that the doctrine of qualified immunity has now, in that overlooked unsigned reversal in White v. Pauly, a case that should have been too obvious for doubt, swallowed § 1983? Judges of good will may refuse to apply it that way, because the “clearly established law” has always given them an out to latch onto some detail that distinguishes the conduct involved from other decisions, and still refuse to grant QI.

But Will Baude, to his enormous credit, takes on the fiction directly. It exists only because the Supreme Court decided to create this monster, and it’s time, particularly after the horrendous decision in White v. Pauly, to kill this mythical beast.