Qualified Immunity, the Court-Made Rule That Shields Officers

In September 1961 a group of fifteen Episcopal priests, white and Black, walked into the segregated waiting room of the bus terminal in Jackson, Mississippi, and tried to buy a cup of coffee together. They were on a prayer pilgrimage, riding in the wake of that summer's Freedom Rides, and they knew exactly what would happen next. Jackson police arrested them for breach of the peace. A local judge convicted them. The clergymen appealed, the charges eventually fell away, and they then did something that sounded, on paper, like the system working: they sued the officers and the judge for violating their constitutional rights. Their case reached the Supreme Court in 1967 as Pierson v. Ray. They lost. Not because anyone thought the arrests were right, but because the Court decided that officers who acted in good faith on a law they believed valid should not have to pay. That small, sympathetic-sounding idea is the seed of qualified immunity, and almost sixty years later it decides whether thousands of people who say police violated their rights ever get in front of a jury.

In short: Qualified immunity is not in any statute; the Supreme Court built it, step by step, starting with Pierson v. Ray in 1967. It now lets officers escape civil-rights suits unless a prior court decision condemned nearly identical conduct, which is why libertarians, progressives and some justices have all called for it to be rethought.

A law from Reconstruction, and a defense nobody wrote into it

The clergymen sued under a statute with a violent backstory. In 1871, with the Ku Klux Klan terrorizing freed people and their allies across the South, Congress passed a law letting anyone whose federal rights were violated by a person acting "under color of" state law sue that person for damages. Today it lives in the United States Code as Section 1983, and lawyers say the number the way doctors say a drug's name.

For most of the next century, Section 1983 sat nearly unused. Courts read it narrowly, and the idea that an ordinary citizen could haul a police officer into federal court over a bad arrest seemed exotic. That changed in 1961, when the Court decided Monroe v. Pape. Chicago officers had broken into the Monroe family's home before dawn, forced the parents and their children out of bed and ransacked the place without a warrant. The justices held that the 1871 law reached officers who abused their power even when state law forbade what they did. Suddenly Section 1983 was a live weapon.

Here is the part that matters for everything that follows. The text of the 1871 law says nothing about immunity. It says that every person who deprives someone of their rights under color of law "shall be liable to the party injured." No exception for good intentions, no carve-out for honest mistakes. When the clergymen's case arrived six years after Monroe, the Court had to decide whether to read defenses into a statute that did not contain any.

What the Court actually decided in Pierson v. Ray

Chief Justice Earl Warren, not usually remembered as a friend of police power, wrote the majority opinion. He split the defendants in two. The judge who convicted the clergymen got absolute immunity, the Court said, because judges had been protected from suits over their rulings for centuries under the common law, and Congress in 1871 had not meant to sweep that away.

The officers were a harder question. Warren reasoned that at common law, an officer who made an arrest in good faith and with probable cause could defend himself against a claim of false arrest. A policeman's lot, the opinion observed in a phrase that has been quoted ever since, is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Officers should not be punished for enforcing a statute that was later struck down, so long as they believed in good faith that it was valid.

Justice William O. Douglas dissented. He pointed out that the 1871 Congress had been reacting to Southern officials, including judges, who were using the forms of law to deny Black citizens their rights, and he doubted that the drafters meant to protect exactly the people they were trying to restrain. That dissent did not win the day, but it framed the argument that critics still make.

Notice how modest the original rule was. It turned on the officer's actual good faith, a question a jury could weigh. It was a defense at trial, not a door slammed at the start of the case. Over the next forty years, the Court would change both of those things.

From good faith to "clearly established law"

The pivot came in 1982 with Harlow v. Fitzgerald, a case that had nothing to do with police. A Pentagon analyst named A. Ernest Fitzgerald had been fired after testifying to Congress about cost overruns on a military cargo plane, and he sued White House aides he believed had arranged it. The Court worried that asking about an official's subjective good faith meant long, expensive discovery into what people were thinking, which in turn meant that almost no case could be thrown out early.

So the justices rewrote the test. From then on, officials would be immune from damages unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." The officer's actual state of mind dropped out. The question became whether existing law had already made the violation obvious.

That sounds reasonable until you see how courts applied it. In Malley v. Briggs in 1986, the Court said the doctrine protects all but the plainly incompetent or those who knowingly violate the law. Lower courts began demanding that plaintiffs find an earlier decision with facts closely matching their own. If no court had ever ruled on that specific kind of misconduct, the right was not "clearly established," and the case ended.

Then came a quiet procedural twist with large consequences. In Saucier v. Katz in 2001, the Court told judges to answer two questions in order: first, did the officer violate the Constitution, and second, was the right clearly established? At least that way, courts would keep announcing new law. In Pearson v. Callahan in 2009, the Court made the order optional. Judges could skip straight to the second question, say the law was not clearly established, and never decide whether the conduct was unconstitutional at all. The result is a loop. If courts never rule that a new kind of misconduct is unconstitutional, it never becomes clearly established, so the next victim loses too.

The cases that made the doctrine famous

Most qualified immunity rulings are dry. A few are so stark that they have become the doctrine's public face.

In one, a man named Alexander Baxter was caught in a Nashville basement during a burglary. He said he had surrendered, sitting on the floor with his hands up, when an officer released a police dog that bit him. The Sixth Circuit granted immunity because the prior case it found involved a suspect who was lying down, not sitting with raised hands. The Supreme Court declined to hear his appeal in 2020, over a written dissent from Justice Clarence Thomas.

In another, officers in Fresno, California, executing a search warrant were accused of taking a large sum of cash and rare coins and keeping them for themselves. The Ninth Circuit held in 2019 that, while the alleged theft was morally wrong, no prior decision had clearly established that stealing property seized under a warrant violated the Fourth Amendment. Immunity granted. The Supreme Court again declined to take the case.

There are cases going the other way, and they matter. In Hope v. Pelzer in 2002, the Court said an Alabama prison that handcuffed a man to a hitching post in the sun for hours could not claim immunity, because some violations are so obvious that no matching precedent is needed. In Taylor v. Riojas in 2020, the Court summarily reversed a grant of immunity to Texas prison officers who held a man for days in cells covered in human waste. Those rulings show that the "obvious case" exception exists. They also show how much it takes to trigger it.

Critics on the left, the right and the bench

What makes qualified immunity unusual in American politics is the shape of the opposition. This is not simply a fight between civil-rights groups and police unions.

Libertarian lawyers at the Cato Institute and the Institute for Justice have campaigned against the doctrine for years, arguing that it puts government agents above the law ordinary citizens must obey. A widely cited article by the legal scholar William Baude, titled "Is Qualified Immunity Unlawful?", argued that the doctrine's historical justification does not hold up, because the common law of 1871 did not recognize a general good-faith defense of the kind the Court later built. Justice Thomas, the Court's most conservative member by most measures, has written repeatedly that the Court's version of immunity has drifted away from both the statute and the common law it claims to borrow from. Justice Sonia Sotomayor, from the other end of the bench, has written dissents arguing that the doctrine has become a near-absolute shield and signals to officers that they face no consequences for unreasonable force.

Progressive critics add a racial justice argument. The 1871 law was written to protect Black Americans from state violence. A doctrine that makes those suits hardest to win when the misconduct is novel or brazen turns the law's original purpose upside down.

Research by the UCLA law professor Joanna Schwartz added a twist that complicates the usual story on both sides. Studying large police departments, she found that officers almost never pay settlements or judgments out of their own pockets; their employers indemnify them. That cuts against the defenders' claim that immunity is needed to protect individual officers from financial ruin. It also cuts against critics who imagine that ending immunity would make individual officers pay. In practice, the money comes from city budgets, which is to say from taxpayers.

The strongest case for keeping it

The other side deserves a fair hearing, because its argument is not frivolous.

Defenders say police make split-second decisions in dangerous, fast-moving situations, and that hindsight is cruelly precise. An officer cannot read appellate opinions while a suspect reaches toward a waistband. Without immunity, they argue, officers would hesitate at the wrong moment, good candidates would avoid the profession, and cities would face a flood of litigation that drains money from everything else. Police unions point out that the Constitution's rules on force and searches are often written in general terms, like "reasonableness," and that holding officers liable for guessing wrong about how a court would later apply those terms is unfair.

There is something to this. Fourth Amendment law genuinely is murky in places, and nobody wants a system in which officers are punished for following the training their departments gave them.

The answer, though, is that the doctrine has wandered far past that concern. Fair notice does not require a case with identical facts. A reasonable officer knows that stealing from a search scene is wrong, and that setting a dog on someone who has surrendered is wrong, without a prior opinion about dogs and sitting suspects. And because cities indemnify officers, the deterrent that matters most is institutional: departments change training and discipline when lawsuits cost them money and produce public records. Immunity cuts that feedback loop off before it starts. A city that never loses a case never learns what it is paying for.

What states did when Congress did not act

After the murder of George Floyd in 2020, the House passed a policing bill that would have narrowed qualified immunity for law enforcement. It stalled in the Senate, where negotiators could not agree on the immunity provision in particular. That left the field to the states.

Colorado moved first, in June 2020, creating a state-law claim for violations of the state constitution by police and barring qualified immunity as a defense to it. The law also makes an officer personally liable for a capped portion of a judgment if the employer finds the officer did not act in good-faith belief that the conduct was lawful. New Mexico passed its own Civil Rights Act in 2021, letting people sue public bodies in state court for rights violations without an immunity defense. New York City passed a local law the same year creating a right to sue over unreasonable searches and excessive force by city police, again without qualified immunity. Connecticut took a narrower step in its 2020 accountability law.

These experiments matter because Section 1983 is not the only door. A state can open its own courthouse to claims under its own constitution, set its own rules and decide who pays. So far, the predicted collapse of policing in those states has not been the story; departments still hire, and officers still patrol. Opinion on how well the laws work is still forming, and honest observers should say that the data is young.

Reframing the question

The usual debate asks whether we should "let people sue cops." That framing invites a reflexive answer. The better question is who should bear the cost when a government agent violates someone's rights: the person whose rights were violated, or the government that hired, trained and armed the agent.

Put that way, the case for reform is a conservative one in the old sense. It asks institutions to pay for their failures, so they have a reason to fix them. It treats police officers as public servants under the same law as everyone else. And it honors what Congress actually wrote in 1871, when the problem it was trying to solve was officials who used the badge to deny people their freedom.

The fifteen priests in Jackson understood that. They went to a lunch counter knowing they would be arrested, because they believed the law was supposed to protect them and wanted to make it do so. The Court told them that the officers had acted in good faith. Fair enough, in 1967. But the rule built on that sentence has grown into something its authors never described, and changing it is within reach of the people who wrote its successor: judges, legislators and the voters who choose them.

What you can do

• Ask your state legislators whether your state has its own civil-rights cause of action like Colorado's or New Mexico's. You can look up your state senator and representative, with their phone numbers and contact forms, on our representatives page, which also shows their latest votes.
• Follow how the justices handle immunity petitions. Our Court Watch page lists this term's Supreme Court opinions with the Court's own summaries and tracks the emergency docket, so you can see when a police-misconduct case is actually taken up.
• Support the groups doing the litigating. The organizations directory lists civil-rights, legal aid and justice reform nonprofits in every state, including the ones that bring Section 1983 cases for people who cannot afford a lawyer.
• If your city council budgets for police settlements, read the line item and ask what the department changed after each large payout. Public money paid for misconduct is public business.
• Keep reading on criminal justice reform, where the newest coverage of police accountability, sentencing and reentry is gathered in one place.