qualified immunity

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Qualified immunity is a type of legal immunity that protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” See: Pearson v. Callahan.

When determining whether a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

Usually, in qualified immunity cases, a plaintiff will first bring a suit under the Civil Rights Act of 1871 (Section 1983) against a public official. The public official will then raise a qualified immunity defense that protects the official from all but clear incompetence or knowing violations of the law if the official acted in a reasonable but mistaken way.

Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all. Accordingly, courts must resolve qualified immunity issues as early in a case as possible, preferably before discovery.

Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions. Although qualified immunity frequently appears in cases involving police officers, it also applies to most other executive branch officials. While judgesprosecutors, legislators, and some other government officials do not receive qualified immunity, most are protected by other immunity doctrines.

Illustrative Case Law in Chronological Order 

Harlow v. Fitzgerald

In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme Court held that federal government officials are entitled to qualified immunity. The Court reasoned that "the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority." With regard to certain government officials, including the President, prosecutors, and similar officials, the Court upheld absolute immunity only in certain functions. This doctrine shields those individuals from criminal prosecution and lawsuits, as long as their actions in question were within the scope of their jobs. For all other federal officials, the Court also held that federal officials who are trying to qualify for absolute immunity have the burden to prove "that public policy requires an exemption of that scope." For government officials trying to qualify for absolute immunity, the Court also established a 2-part test that the official must satisfy:

  • First, the official must show that their position's responsibilities had such a sensitive function that it requires absolute immunity
  • Second, the official must demonstrate that they were discharging the protected function of the position when performing the actions in question 
Malley v. Briggs

In Malley v. Briggs, 457 U.S. 335 (1986), the Supreme Court examined immunity for police officers with regard to acting on the basis of a faulty warrant. The Court held that qualified immunity does not apply to a police officer when the officer wrongfully arrests someone based on a warrant, if the officer who could not reasonably believe that there was probable cause for the warrant. Reasonability is determined by the action that an objectively reasonable officer would take.

Anderson v. Creighton

In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court held that when an officer of the law (in this case, an FBI officer) conducts a search which violates the Fourth Amendment, that officer is entitled to qualified immunity if the officer proves that a reasonable officer could have believed that the search constitutionally complied with the Fourth Amendment. The relevant question that a court should ask is whether a reasonable officer could have believed the warrantless search to be lawful, considering clearly established law and the information which the officer possessed. The Supreme Court also held that "subjective beliefs about the search are irrelevant." 

Saucier v. Katz

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court held that a ruling on a qualified immunity defense must be made early in the trial court's proceeding, because qualified immunity is a defense to stand trial, not merely a defense from liability. When there is a summary judgment motion for qualified immunity, the court should rule on the motion, even if a material issue of fact remains on the underlying claim. The Court also elaborated a 2-part test for whether a government official is entitled to qualified immunity:

  • First, a court must look at whether the facts indicate that a Constitutional right has been violated,
  • If so, a court must then look at whether that right was clearly established at the time of the alleged conduct

​Under the Saucier test, qualified immunity applies unless the official's conduct violated such a right. 

Pearson v. Callahan

In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court held that while the Saucier test is helpful, it does not need to be applied in qualified immunity claims. Rather, a trial court should have more discretion in whether it should apply Saucier. The Court also held that "[a]n officer conducting a search is entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment."

Safford v. Redding

In Safford Unified School Dist. #1 v. Redding, 129 S.Ct. 2633 (2009), the Supreme Court held that even when an individual's Fourth Amendment right to be safe from unreasonable search and seizure is violated, the person performing the search may still be immune under qualified immunity, if "clearly established law does not show that the search violated the Fourth Amendment." However, this holding was in the context of a school official conducting a search of a student for illicit items. The Supreme Court has historically given more deference to searches performed on students while in school, so this holding is more narrow than previous qualified immunity decisions. 

Vega v. Tekoh 

In Vega v. Tekoh (2022) the Supreme Court held that violating Miranda Rights does not provide a basis for a § 1983 claim. Rather, the Court asserted that Miranda imposed “a set of prophylactic rules” that only focused on disallowing the use of statements obtained in violation of those rules. Further, the Court argued that expanding Miranda rights beyond that would impose substantial costs on the judicial system. 

Further Reading

For more on qualified immunity, see this UCLA Law Review article, this Stanford Law Review article, this Georgetown - American Criminal Law Review article, and this Minnesota Law Review article.

[Last updated in August of 2023 by the Wex Definitions Team