Defending Qualified Immunity
Civil actions seeking damages against public officials are often the only effective vehicle for challenging the constitutionality of governmental conduct. As the Supreme Court has recognized, in cases not amenable to injunctive relief, “it is damages or nothing.” Damages actions against government entities themselves are often unavailing—the federal government enjoys sovereign immunity; the Eleventh Amendment bars damages actions against state governments and their instrumentalities; and although local governments are amenable to suit under Title 42 § 1983 of the United States Code, which allows for actions against those who, acting under color of law, deprive another of “any rights, privileges, or immunities secured by the Constitution and laws,” local governmental entities can be held liable only for constitutional torts that are the result of their customs, policies, or practices. Thus, it is no exaggeration that the availability of a damages remedy against an individual public official will often be the only way to vindicate constitutional rights.
Yet, confronting actions against public officials seeking damages for constitutional violations is the defense of qualified immunity, which bars damages awards against officials—whether state and local officials under § 1983 or federal officials in lawsuits brought directly under the Constitution as authorized by Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and its progeny—unless the defendant “violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.” Moreover, “[t]o be clearly established, a right must be sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right. In other words, existing precedent must have placed the statutory or constitutional question beyond debate.” The defense is justified, the Court has written, because of “the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.”
Qualified immunity has come under sustained academic attack. One line of argument questions its lawfulness, noting that nothing in § 1983’s text or the prevailing principles of the common law liability of public officials extant at the time of its enactment supports the defense. Another line of argument attacks § 1983’s consequences, albeit from different directions. Some argue that the defense is so powerful that it renders damages actions ineffective as a check on governmental misconduct. Joanna Schwartz, in contrast, has argued that qualified immunity is actually ineffective because, in her view, it too rarely protects public officials from the threat of litigation and liability to achieve its intended objective. Conversely,while scholarly criticism of qualified immunity is frequent, scholarly defenses of the doctrine are rare and usually equivocal. The critique of qualified immunity has been echoed by members of the Supreme Court, where there are indications of disquiet in the citadel. Attacks on qualified immunity have entered the political realm as well, with the emergence of legislative proposals for its abolition.