Qualified Immunity

What Is Qualified Immunity

Qualified immunity is a rule the Supreme Court created that shields government officials from being sued for money when they violate someone’s constitutional rights, unless the right they violated was “clearly established” at the time. In practice that means a victim has to point to an earlier court decision with nearly identical facts. If no such case exists, the official cannot be sued, even when a court agrees a right was violated. It protects officials from paying damages, not from criminal charges or being fired.

The catch-22 plays out one case at a time. A police officer does something a court later agrees was unconstitutional. The victim sues. The officer’s lawyer says no earlier case had these exact facts, so the right was not “clearly established.” The case is dismissed. The next victim of the same conduct hears the same answer, because the first case never produced a ruling on the merits.

How the Clearly Established Test Works

A qualified immunity case runs through a two-part test, and the second part is where most claims die. First, did the official violate a constitutional right? Second, was that right “clearly established” at the time, meaning a prior court decision with nearly the same facts had already said so? If the answer to the second question is no, the official wins, regardless of how clear the violation looks.

The order of those two questions used to be fixed, and that mattered more than it sounds. Courts once had to decide the constitutional question first, which slowly built up precedent. Pearson v. Callahan made the order optional in 2009, so a court can now grant immunity on the second question alone and never rule on whether a right was violated.

That choice created a self-perpetuating loop. Courts skip the first question, so the law never becomes “clearly established,” so the next victim cannot point to a case, so that court skips the first question too. The body of precedent that victims need stops growing.

The doctrine reaches beyond local police. It applies to state and local officials through § 1983 and to federal officials through the Bivens doctrine (Butz v. Economou, 1978), where the same “clearly established” standard governs.

The Cases It Has Shielded

The clearest argument against the doctrine is the conduct it has protected. Qualified immunity shields actions that judges themselves describe as wrong, because the test asks about prior cases, not about right and wrong. Three documented cases show how that plays out.

The Fresno case is the starkest. Officers reported seizing $50,000, but Micah Jessop and Brittan Ashjian alleged that $151,380 in cash and $125,000 in rare coins were taken, roughly $276,000. The Ninth Circuit called the alleged theft “morally wrong” and granted immunity anyway, and the Supreme Court denied review in 2020.

The Corbitt case came out of Coffee County, Georgia, in 2014. Deputy Michael Vickers fired at a family’s non-threatening dog and instead struck a 10-year-old child lying on the ground 18 inches away. A split Eleventh Circuit reversed the district court and granted Vickers immunity, again because no prior case matched the facts.

The Baxter case put the loop in plain view. Alexander Baxter had surrendered and was sitting with his hands up when police released a dog on him. A prior case involving a police dog existed, but the court found the facts were not close enough to count. The Supreme Court denied review on June 15, 2020. Justice Clarence Thomas dissented and questioned whether the doctrine has any basis in the law Congress wrote.

Our § 1983 qualified immunity doctrine appears to stray from the statutory text.

Justice Clarence Thomas, dissent from denial of certiorari, Baxter v. Bracey, 2020

The pattern is not limited to these three. In a 2021 case, 78-year-old Onree Norris had his home raided by more than 20 officers acting on a warrant that described an off-white house with a black roof. His house was yellow with a gray roof. The officers received immunity.

These outcomes are not rare flukes. A Reuters investigation of excessive-force appeals from 2017 through 2019 found that police prevailed in more than half of the cases where they raised qualified immunity (SCOTUSblog). Joanna Schwartz’s study “How Qualified Immunity Fails” in the Yale Law Journal documented how often the defense ends cases before a jury ever hears them.

Where the Doctrine Came From

Qualified immunity has a traceable history, and the arc runs from a Reconstruction civil rights law to a 2020s state-by-state split. Congress created the right to sue officials in 1871, the Supreme Court revived it in 1961, then narrowed it with a good-faith immunity in 1967, swapped that for the “clearly established” test in 1982, froze precedent in 2009, declined to reconsider the doctrine in 2020, and the states began moving in opposite directions from 2020 onward.

1. 1871 Congress passes the civil rights law Section 1983 lets people sue officials who violate their rights "under color of" law.
2. 1961 Monroe v. Pape revives the law The Supreme Court makes § 1983 a usable tool for civil rights suits against officials.
3. 1967 Pierson v. Ray creates immunity The Court invents a "good faith" immunity for police, found in no statute.
4. 1982 Harlow sets the modern test The Court swaps good faith for the objective "clearly established" standard.
5. 2009 Pearson freezes precedent Courts may skip the constitutional question, so the law rarely becomes clearly established.
6. 2020 The Court declines to reconsider The justices deny review in Baxter and related cases; Thomas dissents.
7. 2020-2021 Colorado and New Mexico end it Both states bar qualified immunity for state constitutional claims by statute.
8. 2024-2025 Louisiana and Alabama expand it Both states move to codify or strengthen the doctrine for officers.

Sources: Cornell LII; Justia; Institute for Justice.

From the 1871 civil rights law to the state split, 1871-2025: 1871 — Congress passes the civil rights law (Section 1983 lets people sue officials who violate their rights "under color of" law.). 1961 — Monroe v. Pape revives the law (The Supreme Court makes § 1983 a usable tool for civil rights suits against officials.). 1967 — Pierson v. Ray creates immunity (The Court invents a "good faith" immunity for police, found in no statute.). 1982 — Harlow sets the modern test (The Court swaps good faith for the objective "clearly established" standard.). 2009 — Pearson freezes precedent (Courts may skip the constitutional question, so the law rarely becomes clearly established.). 2020 — The Court declines to reconsider (The justices deny review in Baxter and related cases; Thomas dissents.). 2020-2021 — Colorado and New Mexico end it (Both states bar qualified immunity for state constitutional claims by statute.). 2024-2025 — Louisiana and Alabama expand it (Both states move to codify or strengthen the doctrine for officers.).

1871: Congress passed the civil rights law now codified at § 1983, letting people sue state and local officials who violate their rights “under color of” law. The text says such officials “shall be liable,” with no immunity written in.

1961: In Monroe v. Pape the Supreme Court revived § 1983 as a practical tool, opening federal courts to civil rights suits against officials who abused their authority.

1967: In Pierson v. Ray the Court created a “good faith” immunity for police, the first version of qualified immunity. Nothing in the statute authorized it.

1982: In Harlow v. Fitzgerald the Court replaced the good-faith inquiry with the objective “clearly established” test still used today, which turns on prior case law rather than an official’s intent.

2009: In Pearson v. Callahan the Court let judges skip the question of whether a right was violated and grant immunity on the “clearly established” prong alone. This is the step that stopped precedent from developing.

2020: The Court declined to reconsider the doctrine, denying review in Baxter v. Bracey and several related petitions. Justice Thomas dissented and questioned the doctrine’s legal footing.

2020-2021: Colorado in 2020 and New Mexico in 2021 ended qualified immunity for state constitutional claims by statute, the first states to do so legislatively.

2024-2025: Louisiana in 2024 and Alabama in 2025 moved the other way, passing laws to codify or strengthen the doctrine for officers.

The doctrine has critics across the spectrum, and their case rests on the statute’s own history. William Baude argued in “Is Qualified Immunity Unlawful?” (2018) that nothing in § 1983 supports the defense. Alexander Reinert’s “Qualified Immunity’s Flawed Foundation” (2023) argues that the original 1871 text included a clause rejecting such defenses, a clause dropped from the 1874 code compilation.

The Fight to End It

The fight over qualified immunity is now playing out in state legislatures and in Congress at the same time, and the two sides are moving in opposite directions. A handful of states have ended or limited the doctrine for claims under their own constitutions, while others have voted to lock it in. No reform has cleared Congress.

Colorado started the wave with SB 217 in 2020, which created a state cause of action and allows officers to be held personally liable up to $25,000 when they act in bad faith. New Mexico followed in 2021 with a Civil Rights Act that bars the defense, with damages capped at $2 million. Montana (Dorwart v. Caraway, 2002) and Nevada (Mack v. Williams, 2022) reached similar results through their state courts. Connecticut passed a 2020 law with significant loopholes, and New York City limited it for the NYPD in 2021.

Other states moved the opposite way. Iowa codified qualified immunity in 2021 (SF 342), Louisiana strengthened protections for officers in 2024, and Alabama passed a “Back the Blue” expansion in 2025. The result is a widening gap in whether a victim of a clear violation can sue, depending entirely on the state.

In Congress, reform has stalled while the two camps file competing bills. The George Floyd Justice in Policing Act passed the House twice, in 2020 and 2021, and died in the Senate both times. As of June 2026, the Ending Qualified Immunity Act (H.R. 3602 and S. 1913) and the Qualified Immunity Abolition Act of 2026 (H.R. 7046 and S. 3625, from Rep. Ayanna Pressley) would abolish the doctrine, while the Qualified Immunity Act of 2025 (S. 122 and H.R. 503) would write it into law. All of them are pending.

The Supreme Court, as of June 2026, is still applying qualified immunity and declining petitions to reconsider it. In Zorn v. Linton (March 2026) the Court reversed a lower court’s denial of immunity in an unsigned 6-3 decision, a sign it remains willing to enforce the doctrine. The path to ending it runs through Congress and the states, not the current Court.

For the deeper rights at stake, our due process explainer covers what fair procedure the government owes a person, and our habeas corpus explainer covers how a detained person can force the government to justify holding them.

Why It Matters

The cost of qualified immunity falls on people who have already been wronged. When the doctrine applies, a victim of a clear constitutional violation gets no money, no day in court, and no acknowledgment. Officials face no financial deterrent, so the conduct is less likely to change. And because Pearson lets courts skip the merits, the law stops developing, which means the next victim loses for the same reason.

The encouraging part is that reform is not theoretical. Colorado and New Mexico ended the doctrine for state claims and still have functioning police departments. The fear that ending it would paralyze policing has a real-world test, and so far the departments in those states are still doing their jobs.

Public support for change is broad and crosses party lines. The 63% who favor ending qualified immunity in the Cato poll include 42% of Republicans, and a separate Pew survey found 66% favor letting civilians sue officers for misconduct.

The Honest Case For and Against It

The strongest defense of qualified immunity deserves a fair hearing before the limits. Officers make genuine split-second decisions, often in danger and with incomplete information. The Fourth Amendment already asks only that their use of force be reasonable, not perfect, and some deference in ambiguous moments is legitimate. A rule that exposed every honest officer to personal bankruptcy for a good-faith mistake would be its own kind of injustice.

The real dispute is not whether officers deserve any protection. It is whether that protection should be absolute immunity or a high bar for liability. A reasonable middle ground exists, and the current doctrine rejects it. Lawmakers could protect officers from personal ruin for genuine errors while still letting suits reach fact-finding, or shift the liability to the city or department that employs them. The doctrine as written is all-or-nothing.

The part critics on the left and right both target is narrow and specific. The “clearly established” rule shields deliberate, egregious conduct the same way it shields an honest mistake, because the test asks about prior cases rather than the seriousness of the violation. That is why the Cato Institute and the Institute for Justice, both libertarian, and the ACLU and the NAACP, both progressive, all back reform, while police organizations defend the current rule.

We do not declare a winner on the split-second-deference question. Reasonable people disagree about how much room officers should have in a fast-moving encounter. The agreement, across the spectrum, is narrower: a rule that protects the worst conduct as easily as the most understandable mistake is the wrong rule.

Frequently asked questions

Does qualified immunity protect police from criminal charges? No. Qualified immunity is a defense only against civil lawsuits for money damages. An officer can still be criminally prosecuted, fired, or ordered by a court to stop ongoing conduct. The doctrine controls whether a victim can win money, not whether an official can be charged with a crime.

Does qualified immunity apply to officials other than police? Yes. It covers most state and local officials making discretionary decisions, and through the Bivens doctrine it covers federal officials too. Judges, prosecutors, and legislators have their own separate and broader immunities, which are not the same thing as qualified immunity.

Can a state end qualified immunity on its own? Yes, for claims under that state’s own constitution. Colorado and New Mexico ended it by statute, and Montana and Nevada reached the same result through their state courts. A state cannot remove the federal defense in federal court, which is why a federal fix is still needed.

What is the difference between the competing federal bills? The Ending Qualified Immunity Act (H.R. 3602 and S. 1913) and the Qualified Immunity Abolition Act of 2026 (H.R. 7046 and S. 3625) would abolish the doctrine. The Qualified Immunity Act of 2025 (S. 122 and H.R. 503) would write it into law. All are pending as of June 2026.

What you can do

1. Ask your members of Congress where they stand on the two competing bills. One set would abolish qualified immunity (H.R. 7046 and S. 3625), and another would codify it (S. 122 and H.R. 503). Ask for an on-the-record position. Use the letter and call script below.

2. Ask your state legislators to follow Colorado and New Mexico. A state civil-rights cause of action that bars qualified immunity for state constitutional violations lets victims sue in state court, regardless of what Congress does. Name the model and ask them to introduce it.

3. Learn the related doctrines so you cannot be misled. Read how due process requires fair procedure before the government acts and how habeas corpus lets a detained person force the government to justify holding them.

4. Share the case record when someone says immunity only stops “frivolous” suits. Jessop, Corbitt, and Baxter were not frivolous. The comparison table above is built to be shared.

5. Write your representative about ending qualified immunity. Use the letter below and ask for a clear, on-the-record position.