From [HERE] The doctrine of qualified immunity was conjured up by the US Supreme Court in 1982 and victims of rights violations have been paying the price for more than three decades. The doctrine was created by the Court, not by Congress. This is an important distinction, especially since qualified immunity directly contradicts the liability Congress created as an avenue of redress for citizens.
Congress specifically said anyone who uses governmental power to deprive others of rights can be sued.
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…
These were the only exceptions granted:
… 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.
Exceptions for judges. That's it.
As it stands now, qualified immunity lets everyone from cops to federal agents to IRS investigators off the hook for violating the rights of citizens. It's not supposed to be this way. Qualified immunity reverses the expectations of Congress to give government employees an easy way out. The Supreme Court felt the lack of safety valve for government employees meant they'd be too intimidated by possible liability to make quick judgment calls while performing their duties.
Instead, the doctrine has encouraged government employees to engage in blatant rights violations, secure in the knowledge the court-established doctrine will get them off the hook.
David French, writing for the National Review, says it's time for qualified immunity to die. Its burial would allow the nation to go back to what Congress intended: an avenue of recourse for citizens whose rights have been violated by the government. The key linchpin in qualified immunity determinations is "clearly established law." But what does "clearly established" mean in the context of a QI defense? Almost nothing.
[T]he entire notion of “clearly established law” rests on a series of absurd, fantastical premises. Are we really to believe that a police officer doesn’t know he shouldn’t pound on the wrong door and blow away the innocent occupant* unless a court said so in a case, say, five years before? Do we really believe police officers and university administrators are diligently reading such cases as they are decided anyhow?
Also note how qualified immunity flips the meaning of the statute upside-down. Section 1983 is a law designed to protect citizens and help them secure their rights. It was not designed to protect the “vigorous exercise of official authority” but instead to restrain that authority.
*Refers to the case covered here.
Judge Don Willett, writing for the Fifth Circuit Appeals Court, pointed out the ridiculousness of relying on "clearly established law" to determine whether or not government employees should be held directly accountable for unquestionable violations of citizens' rights.
Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.
With few courts willing to draw the line in new cases, there's no precedent to look to when new troubling violations are alleged. The government can get a lawsuit dismissed in the first round of motions if there's no case directly on point in the jurisdiction handling the case. As Judge Willett pointed out, this only encourages novel rights violations, rather than deter future misconduct. To prevail on a QI motion to dismiss, a government defendant need only be the first to violate someone's rights in this manner.
Knowing that's the bar that must be hurdled to survive the initial round of motions in a civil rights lawsuits, future novel violations will likely never be converted into "clearly established law" cited by future litigants. Julian Sanchez's Twitter thread on the subject notes one side effect of three decades of qualified immunity is fewer civil rights lawsuits.
First time around, the right violated won’t be “clearly established,” and the official responsible will have qualified immunity. The second time very similar facts show up in court, though, the first case will have “clearly established” the right violated, eliminating immunity.
But think about how this effects incentives to litigate. If the specific harm you suffered isn’t “clearly established’ in your jurisdiction, you’re incurring the cost and hassle of a lawsuit, but you won’t recover damages. You’ll only allow the NEXT victim to recover.
The arguments for keeping the qualified immunity intact are weak. Holes have been poked in these by multiple lawyers and law profs, but the doctrine lives on, propped up by the parade of litigation that would certainly result if government employees were held directly responsible for their actions.
One of the weakest of the arguments is that the removal of qualified immunity would result in long stream of impoverished cops. As this amicus brief submitted for a QI-centric Supreme Court case points out, government employees are rarely, if ever, held directly accountable for their actions. It's almost always taxpayers paying other taxpayers for rights the government violated.
This concern is empirically unfounded. The widespread availability of indemnification already protects individual officers from ruinous judgments. A recent study shows that governments paid approximately 99.98 percent of the dollars recovered in lawsuits against police officers.
Qualified immunity lives on, and it seems unlikely the Supreme Court will revisit its own failure. That's not to say there's no chance it will happen or efforts like these are wasted. The Supreme Court recently punched a hole in the Third Party Doctrine -- another of its long-time favorites -- so it's conceivable a future ruling may substantially narrow the breadth of qualified immunity's scope. But as long as it remains in place, the public will continue to suffer for the government's sins.