Qualified immunity

In the United States, qualified immunity is a legal principle that grants government officials performing
discretionary (optional) functions immunity from civil suits unless the plaintiff shows that the official
violated "clearly established statutory or constitutional rights of which a reasonable person would have
known".[1] It is a form of sovereign immunity less strict than absolute immunity that is intended to protect
officials who "make reasonable but mistaken judgments about open legal questions",[2] extending to "all
[officials] but the plainly incompetent or those who knowingly violate the law".[3] Qualified immunity
applies only to government officials in civil litigation, and does not protect the government itself from suits
arising from officials' actions.[4]

The U.S. Supreme Court first introduced the qualified immunity doctrine in Pierson v. Ray (1967), a case
litigated during the height of the civil rights movement. It is stated to have been originally introduced with
the rationale of protecting law enforcement officials from frivolous lawsuits and financial liability in cases
where they acted in good faith in unclear legal situations.[5][6]

Contents
History and background
Pierson v. Ray
Bivens and 42 USC § 1983 lawsuits
Harlow v. Fitzgerald
Saucier v. Katz
Pearson v. Callahan
Application of qualified immunity
Discretionary function requirement
Clearly established law requirement
Qualified immunity sequencing
Objections and criticisms
Difficulty of suing public officials
Police brutality
Judicial activism
Ineffectiveness
Qualified Immunity being extended to non law enforcement personnel
Challenges to qualified immunity
Through litigation
Legislative attempts
State law
Relevant cases
See also
References
External links
History and background

Pierson v. Ray

In Pierson v. Ray (1967), the Supreme Court first justified the need for qualified immunity from civil rights
violation lawsuits for law enforcement officers by arguing that "[a] policeman’s lot is not so unhappy that
he must choose between being charged with dereliction of duty if he does not arrest when he had probable
cause, and being punished with damages if he does."[5]

Bivens and 42 USC § 1983 lawsuits

Qualified immunity frequently arises in civil rights cases,[7] particularly in lawsuits arising under 42 USC §
1983 and Bivens v. Six Unknown Named Agents (1971).[8] Under 42 USC § 1983, a plaintiff can sue for
damages when state officials violate their constitutional rights or other federal rights. The text of 42 USC §
1983 reads as follows:[9]

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 ...

Similarly, under Bivens v. Six Unknown Named Agents, plaintiffs may sue for damages if federal officials
violate their constitutional rights. However, not all Constitutional violations give rise to a Bivens cause of
action.[10] Thus far the Supreme Court has recognized Bivens claims for violations of the Fourth
Amendment,[8] the Fifth Amendment's equal protection component of due process,[11] and the Eighth
Amendment.[12]

Harlow v. Fitzgerald

The modern test for qualified immunity was established in Harlow v. Fitzgerald (1982).[13][14]

Prior to Harlow v. Fitzgerald, the U.S. Supreme Court granted immunity to government officials only if:
(1) the official believed in good faith that their conduct was lawful, and (2) the conduct was objectively
reasonable.[14] However, determining an official's subjective state of mind (i.e. did they have a good faith
belief that their action was lawful) required a trial, often by jury.[14] Concerns over allowing suits to go this
far deterred officials from performing their duties, "[diverted] official energy from pressing public issues,
and [deterred] able citizens from acceptance of public office",[15] the Supreme Court handed down the
current rule for qualified immunity: "[G]overnment officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known."[16] Therefore, the
application of qualified immunity no longer depends upon an official's subjective state of mind, but on
whether or not a reasonable person in the official's position would have known their actions were in line
with clearly established legal principles.
Saucier v. Katz

In Saucier v. Katz, military officers Saucier and Parker were warned of possible protests during a speech
from Vice President Albert Gore, Jr. When Katz began putting up a banner in defense of animal rights,
Saucier detained Katz in his military van. Katz sued because he felt his Fourth Amendment rights had been
violated. The court ultimately ruled in favor of Saucier, due to qualified immunity.[17] The Supreme Court
held that "the ruling on qualified immunity requires an analysis not susceptible of fusion with the question
whether unreasonable force was used in making the arrest."[18] In other words, the analysis applied to
claims of excessive force is not the same as the analysis applied to the merits of the claim. The Court's
decision in this case provides a two-step inquiry into claims brought against a government official: first,
whether the official's actions violated the constitutional rights of the plaintiff, and second, whether those
rights were clearly established at the time of the incident.[18]

Pearson v. Callahan

The Supreme Court's decision in Pearson et al. v. Callahan overturned its decision in Saucier v. Katz and
the two-step inquiry giving more discretion to the lower courts. The inquiry into the law or into the
Constitution in relation to similar cases brought before the courts was up to the courts to decide.[19]

Application of qualified immunity

Discretionary function requirement

Qualified immunity only applies to acts that are "discretionary" rather than ministerial.[16] Courts
specifically distinguish discretionary acts from ministerial acts.[20] A discretionary act requires an official to
determine "whether an act should be done or a course pursued" and to determine the best means of
achieving the chosen objective.[21] By contrast, a ministerial act is of a "clerical nature"  – the official is
typically required to perform the action regardless of their own opinion.[21] Even ministerial tasks will
sometimes involve a small amount of discretion, but this discretion will not necessarily satisfy the
requirements of qualified immunity.[22]

Clearly established law requirement

Qualified immunity does not protect officials who violate "clearly established statutory or constitutional
rights of which reasonable person would have known".[16] This is an objective standard, meaning that the
standard does not depend on the subjective state of mind of the official but rather on whether a reasonable
person would determine that the relevant conduct violated clearly-established law.[23]

Whether the law is "clearly established" depends on whether the case law has addressed the disputed issue
or has established the "contours of the right" such that it is clear that official's conduct is illegal.[24] It is
undisputed that Supreme Court opinions can "clearly establish" the rule for the entire country. However,
circuit court of appeals opinions may have a more limited effect. Circuit courts of appeals typically treat
their opinions as clearly establishing the law within that circuit[25]—though the Supreme Court has cast
doubt on this theory.[26] In order to meet the requirement of "Clearly Established Law", the facts of the
instant case must also fairly closely resemble the facts of the case relied on as precedent.[27][19]

Qualified immunity sequencing

The concept of testing whether the official action was covered by qualified immunity was first raised in the
1991 case Siegert v. Gilley (1991) in which the Supreme Court affirmed a dismissal of a lawsuit due to lack
of clear demonstration that a constitutional right had been violated at the time of the action as a necessary
precursor for any judicial relief.[28]

In 2001, the U.S. Supreme Court in Saucier v. Katz[29] formalized this rigid order, or sequencing, in which
courts must decide the merits of a defendant's qualified immunity defense. First, the court determines
whether the complaint states a constitutional violation. If so, the next sequential step is to determine whether
the right at issue was clearly established at the time of the official's conduct. The Court subsequently
modified this mandatory sequencing from Saucier in Pearson v. Callahan in 2009, holding that "the
Saucier protocol should not be regarded as mandatory in all cases,"[30] and that its decision "does not
prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts
should have the discretion to decide whether that procedure is worthwhile in particular cases."[31] The
Pearson opinion gave courts the discretion to evaluate either the constitutional violation or the rights issue
first. This can have benefits of expediting some cases and reducing waste of resources in the court system,
but has also led to cases that focus heavily on one side of the case and weigh in favor of government
officials, particularly in the area of police brutality.[28][6]

Objections and criticisms

Difficulty of suing public officials

Critics have argued that qualified immunity makes it excessively difficult to sue public officials for
misconduct.[32] Criticism is aimed in particular at the "clearly established law" test. This test is typically
read as requiring not only that an official's behavior likely violates written law but that there exists a clear
judicial precedent that establishes the behavior as unlawful.[33][34] Critics have noted that in practice this
has meant that plaintiffs must prove that there exists a prior court determination made in actual litigation
under facts extremely close to those of the case at hand exists, or else the case is dismissed.[35][36] Critics
argue that the difficulty plaintiffs face in finding an exact match in both law and precedent makes it
excessively challenging to sue public officials, giving government officials undue latitude for lawless
conduct in new or unusual situations.[37][38] George Leef, for instance, argued in Forbes that:

This doctrine, invented by the Court out of whole cloth, immunizes public officials even when
they commit legal misconduct unless they violated 'clearly established law'. That standard is
incredibly difficult for civil rights plaintiffs to overcome because the courts have required not
just a clear legal rule, but a prior case on the books with functionally identical facts.[39]

Critics have cited examples such as a November 2018 ruling by the United States Court of Appeals for the
Sixth Circuit, which found that an earlier court case ruling it unconstitutional for police to sic dogs on
suspects who have surrendered by lying on the ground did not apply under the "clearly established" rule to
a case in which Tennessee police allowed their police dog to bite a surrendered suspect because the suspect
had surrendered not by lying down but by sitting on the ground and raising his hands.[40][41]

Critics further argue that the "clearly established" standard discourages and/or delays the establishment of
clear rules, even for common circumstances.[38] The first litigant to bring a case against an official under a
given set of facts is likely to lose because there is as yet no clearly established standard.[42] Therefore, such
a person may not choose to bring the case at all. Furthermore, even if a case is brought and carried to
judgment, there is no certainty the decision will establish a clear and generally applicable legal standard.
Until such a standard is articulated, qualified immunity will continue to apply in analogous cases. As the
Institute for Justice puts it, "Qualified immunity means that government officials can get away with
violating your rights as long as they violate them in a way nobody thought of before."[43]

Police brutality

A significant amount of criticism contends that qualified immunity allows police brutality to go
unpunished.[6] Legal researchers Amir H. Ali and Emily Clark, for instance, have argued that "qualified
immunity permits law enforcement and other government officials to violate people's constitutional rights
with virtual impunity".[44] Supreme Court Justice Sonia Sotomayor has noted a "disturbing trend" of siding
with police officers using excessive force with qualified immunity,[45] describing it as "sanctioning a 'shoot
first, think later' approach to policing".[44] She stated:

We have not hesitated to summarily reverse courts for wrongly denying officers the protection
of qualified immunity in cases involving the use of force...But we rarely intervene where
courts wrongly afford officers the benefit of qualified immunity in these same cases.[46]

A 2020 Reuters report concurred with Sotomayor, concluding that "the Supreme Court has built qualified
immunity into an often insurmountable police defense by intervening in cases mostly to favor the police".
The report reviewed over 200 cases involving excess force by police since 2007, and found since the 2009
Pearson change from mandatory sequencing to discretionary sequencing, plaintiffs have had a more
difficult time moving their case past the qualified immunity stage.[6]

Judicial activism

No federal statute explicitly grants qualified immunity—it is a judicial precedent established by the
Supreme Court.[42] While qualified immunity has been repeatedly affirmed by courts and legislation has
established similar immunity at the state level, critics have argued that the adoption of qualified immunity in
federal law amounts to judicial activism. That is, they argue the Supreme Court invented a new legal
doctrine that has little basis in written law.[47][48] The late Supreme Court Justice Antonin Scalia argued as
much in his dissent in Crawford-El v. Britton: "[the Supreme Court] find[s] [itself] engaged...in the
essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have
invented—rather than applying the common law embodied in the statute that Congress wrote".[49] Clarence
Thomas has likewise expressed "growing concern with our qualified immunity jurisprudence", stating that
there is no apparent basis for it in the original intent of the law;[44] in Ziglar v. Abbasi, Thomas urged the
court to reconsider qualified immunity, which he considered a doctrine that "substitute[s] our own policy
preferences for the mandates of Congress."[50]

Some critics have argued that the Supreme Court's creation of qualified immunity amounts to "gutting"[51]
Section 1983 of the United States Code, which allows any citizen to sue a public official who deprives
them "of any rights, privileges, or immunities secured by the Constitution and laws".[52] U.S. District Court
Judge Lynn Adelman has argued that "qualified immunity is a limitation on Section 1983 that the Court
created in 1982 without support in the statute’s text or legislative history".[51] University of Pennsylvania
professor of law David Rudovsky similarly argued that "the Court...has engaged in an aggressive
reconstruction of the scope of § 1983...This reorientation of civil rights jurisprudence has blunted the
impact of § 1983".[53]
The Court has stated that it bases qualified immunity on three factors: a "good faith" defense at common
law, making up for the supposedly mistaken broadening of § 1983, and serving as a "warning" to
government officials. But William Baude, Professor of Law at the University of Chicago Law School,
states that "there is no such defense, there was no such mistake, and lenity [warning] should not apply. And
even if these things were otherwise, the doctrine of qualified immunity would not be the best response."[48]

Ineffectiveness

In a 2017 Yale Law Journal paper titled "How Qualified Immunity Fails", UCLA law professor Joanna C.
Schwartz examined 1,183 Section 1983 cases and found that it was being invoked primarily when it should
not have been, and therefore was being ignored or dismissed frequently. Her conclusion was that it is
ineffective for its stated goals in such a way that it could not be strengthened, and should be replaced by
other mechanisms for obtaining those ends.[54][5]

Qualified Immunity being extended to non law enforcement personnel

There have been instances reported whereby deputized civilians have received the equivalent of qualified
immunity in a situation where such qualified immunity would normally have been expected to be extended
only to a uniformed police officer. Reason magazine reported on October, 2022 that, a highway engineer in
Minnesota was extended qualified immunity for detaining drivers by the court.[55]

Challenges to qualified immunity

Through litigation

On March 1, 2018, the Cato Institute launched a strategic campaign to challenge the doctrine of qualified
immunity, centered on "a series of targeted amicus briefs urging the Supreme Court to reverse its precedents
and eliminate the doctrine outright".[47] By January 2020, this campaign had garnered the support of a
cross-ideological spectrum of public interest organizations, including the ACLU, the Alliance Defending
Freedom, the Institute for Justice, the NAACP Legal Defense Fund, and the Second Amendment
Foundation.[47]

In August 2018, Circuit Judge Don Willett concurred dubitante when the United States Court of Appeals
for the Fifth Circuit found that the Texas Medical Board was entitled to qualified immunity for an
unconstitutional warrantless search it made of a doctor's patient records.[56] Willett called for "thoughtful
reappraisal" of the " 'clearly established law' prong of qualified-immunity analysis", citing a tendency for
many courts to grant immunity based on no clear precedent, while avoiding the question of whether a
Constitutional violation has occurred. Hence, those courts do not establish new law, so "[w]rongs are not
righted, and wrongdoers are not reproached."[57] He wrote:

To some observers, qualified immunity smacks of unqualified impunity, letting public officials
duck consequences for bad behavior—no matter how palpably unreasonable—as long as they
were the first to behave badly. Merely proving a constitutional deprivation doesn't cut it;
plaintiffs must cite functionally identical precedent that places the legal question "beyond
debate" to "every" reasonable officer. Put differently, it's immaterial that someone acts
unconstitutionally if no prior case held such misconduct unlawful. This current "yes harm, no
foul" imbalance leaves victims violated but not vindicated.
[...]
 Section 1983 meets Catch-22. 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 government wins, tails plaintiff loses.[58][59]

In 2020, there were several cases awaiting a Supreme Court decision involving qualified
immunity.[60][61][62] However, on June 15, 2020, the Supreme Court declined to hear cases involving
revisiting qualified immunity.[63][64] This was until November 2, 2020, when the Supreme Court ruled in a
7-1 per curiam decision that the 5th Circuit erred in granting two prison guards qualified immunity despite
severe abuses.[65] Erwin Chemerinsky of the UC Berekely School of Law calls this "a rare civil rights
victory on qualified immunity."[66]

Legislative attempts

On May 30, 2020, U.S. Representative Justin Amash (L-Michigan) proposed the Ending Qualified
Immunity Act, stating: "The brutal killing of George Floyd by Minneapolis police is merely the latest in a
long line of incidents of egregious police misconduct... police are legally, politically, and culturally insulated
from consequences for violating the rights of the people whom they have sworn to serve".[67][68][60] On
May 29, 2020, Representative Ayanna Pressley (D-Massachusetts) announced that she would cosponsor
the bill.[69] The bill was introduced in the House of Representatives on June 4, 2020,[70] with 16 additional
cosponsors.[71] As of September 12, 2020, it had 66 cosponsors (65 Democrats and 1 Republican).[71] A
second bill aimed at ending qualified immunity for law enforcement, the Justice in Policing Act of 2020
(H.R.7120), was introduced by Rep. Karen Bass (D-CA) on June 8, 2020.[72] The bill's sponsorship by
members of the Libertarian, Republican, and Democratic parties made it the first bill to have tripartisan
support in Congress.

On June 3, 2020, Senators Kamala Harris (D-California), Edward Markey (D-Massachusetts), and Cory
Booker (D-New Jersey) introduced a Senate resolution calling for the elimination of qualified immunity for
law enforcement.[73][74] Senators Bernie Sanders (I-Vermont), Elizabeth Warren (D-Massachusetts), and
Chris Van Hollen (D-Maryland) are cosponsors.[73] On June 23, 2020, Senator Mike Braun (R-Indiana)
introduced the Reforming Qualified Immunity Act,[75] proposing that "to claim qualified immunity under
the Reforming Qualified Immunity Act, a government employee such as a police officer would have to
prove that there was a statute or court case in the relevant jurisdiction showing his or her conduct was
authorized".[76]

The New York City Council eliminated qualified immunity for city officers in March 2021.[77]

State law

Colorado, Connecticut, New Mexico, and New York City have either ended qualified immunity altogether
or limited its application in court cases.

Through the passing of the Enhance Law Enforcement Integrity Act in June 2020, Colorado became the
first state to explicitly remove qualified immunity as a defense for law enforcement officers.[78][79]

On April 7, 2021, Gov. Michelle Lujan Grisham signed the New Mexico Civil Rights Act guaranteeing
that no public official "shall enjoy the defense of qualified immunity for causing the deprivation of any
rights, privileges or immunities secured by the constitution of" New Mexico.
Relevant cases
Harlow v. Fitzgerald, 457 U.S. 800 (1982)
Malley v. Briggs (https://supreme.justia.com/cases/federal/us/475/335/case.html), 475 U.S.
335 (1986)
Anderson v. Creighton (https://supreme.justia.com/cases/federal/us/483/635/case.html), 483
U.S. 635 (1987)
Saucier v. Katz, 533 U.S. 194 (2001)
Hope v. Pelzer, 536 U.S. 730 (2002)
Brosseau v. Haugen, 543 U.S. 194 (2004) (dealing with qualified immunity in highly fact-
bound cases involving police use of force)
Pearson v. Callahan, 555 U.S. 223 (2009)
Safford Unified School District v. Redding, 557 U.S. 364 (2009) (dealing with qualified
immunity in a case involving a search of a student by school officials)
Camreta v. Greene, 563 U.S. 692 (2011)
Plumhoff v. Rickard, 572 U.S. 765 (2014) (dealing with qualified immunity in highly fact-
bound cases involving police use of force)
City & Cty. of San Francisco, Calif. v. Sheehan (https://www.supremecourt.gov/opinions/14p
df/13-1412_0pl1.pdf), 135 S. Ct. 1765, 1772 (2015)
Hernandez v. Mesa, 589 U.S. ____ (2020)
Novak v. City of Parma, 21-3290 (2022)

See also
Absolute immunity
Ignorantia juris non excusat
Sovereign immunity

References
1. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
2. Ashcroft v. al-Kidd, 563 U.S. 731, 743 (https://supreme.justia.com/cases/federal/us/563/731/
#743) (2011).
3. Malley v. Briggs, 475 U.S. 335, 341 (https://supreme.justia.com/cases/federal/us/475/335/#3
41) (1986).
4. "Qualified immunity" (https://www.law.cornell.edu/wex/qualified_immunity). Legal
Information Institute. Cornell Law School. Archived (https://web.archive.org/web/202006031
82259/https://www.law.cornell.edu/wex/qualified_immunity) from the original on June 3,
2020. Retrieved June 4, 2020. "Qualified immunity only applies to suits against government
officials as individuals, not suits against the government for damages caused by the officials'
actions."
5. Schwartz, Joanna C. (2017). "How Qualified Immunity Fails" (https://www.yalelawjournal.or
g/pdf/Schwartz_1ki1sac4.pdf) (PDF). Yale Law Journal. Yale Law School. Archived (https://
web.archive.org/web/20200607232029/https://www.yalelawjournal.org/pdf/Schwartz_1ki1sa
c4.pdf) (PDF) from the original on June 7, 2020. Retrieved February 26, 2020.
 6. Chung, Andrew; Hurley, Lawrence; Botts, Jackie; Januta, Andrea; Gomez, Guillermo (May 8,
2020). "For cops who kill, special Supreme Court protection" (https://www.reuters.com/invest
igates/special-report/usa-police-immunity-scotus/). Reuters. Archived (https://web.archive.or
g/web/20200601022624/https://www.reuters.com/investigates/special-report/usa-police-imm
unity-scotus/) from the original on June 1, 2020. Retrieved June 5, 2020. "The increasing
frequency of such cases has prompted a growing chorus of criticism from lawyers, legal
scholars, civil rights groups, politicians and even judges that qualified immunity, as applied,
is unjust. Spanning the political spectrum, this broad coalition says the doctrine has become
a nearly failsafe tool to let police brutality go unpunished and deny victims their
constitutional rights."
7. "§ 314". Public Officers and Employees (https://archive.org/details/63cAmJur2dPublicOfficer
sAndEmployees_201512/page/n539). American Jurisprudence. Vol. 63C (2d. ed.). p. 539.
8. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (https://supreme.justia.com/cases/fede
ral/us/403/388/) (1971).
9. 42 U.S.C. § 1983 (https://www.law.cornell.edu/uscode/text/42/1983).
10. Actions Against Federal Agencies and Officers, 14 Fed. Prac. & Proc. Juris. § 3655 (4th ed.)
11. Davis v. Passman, 442 U.S. 228, 245 (https://supreme.justia.com/cases/federal/us/442/228/#
245) (1979).
12. Carlson v. Green, 446 U.S. 14, 25 (https://supreme.justia.com/cases/federal/us/446/14/#25)
(1980).
13. Harlow v. Fitzgerald, 457 U.S. 800 (https://supreme.justia.com/cases/federal/us/457/800/)
(1982).
14. "State action and the public/private distinction" (http://cdn.harvardlawreview.org/wp-content/
uploads/pdfs/DEVO_10.pdf) (PDF). Harvard Law Review. 123 (5): 1248–1314. 2010.
JSTOR 40648486 (https://www.jstor.org/stable/40648486).
15. Harlow, 457 U.S. at 814.
16. Harlow, 457 U.S. at 818.
17. Saucier v. Katz, 533 U.S. 194 (https://supreme.justia.com/cases/federal/us/533/194/) (2001).
18. Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151. June 18, 2001
19. Pearson, et al. v. Callahan, 555 U.S. 223 (2009).
20. See e.g. Bletz v. Gribble, 641 F.3d 743, 757 (https://www.leagle.com/decision/infco20110527
107) Archived (https://web.archive.org/web/20180708133412/https://www.leagle.com/decisi
on/infco20110527107) July 8, 2018, at the Wayback Machine (6th Cir. 2011); Kennedy v.
Mathis, 297 Ga. App. 295, 297, 676 S.E.2d 746, 748 (https://www.leagle.com/decision/ingac
o20090316117) Archived (https://web.archive.org/web/20180708133502/https://www.leagle.
com/decision/ingaco20090316117) July 8, 2018, at the Wayback Machine (2009);
Rodriguez v. State, 218 Md. App. 573, 615 (2014); Baptie v. Bruno, 195 Vt. 308, 314, 88 A.3d
1212 (https://www.leagle.com/decision/invtco20131206f63) Archived (https://web.archive.or
g/web/20180708133316/https://www.leagle.com/decision/invtco20131206f63) July 8, 2018,
at the Wayback Machine (2013).
21. "§ 318". Public Officers and Employees (https://archive.org/details/63cAmJur2dPublicOfficer
sAndEmployees_201512/page/n549). American Jurisprudence. Vol. 63C (2d. ed.). p. 549.
22. "§ 319". Public Officers and Employees (https://archive.org/details/63cAmJur2dPublicOfficer
sAndEmployees_201512/page/n553). American Jurisprudence. Vol. 63C (2d. ed.). p. 553.
23. "§ 315". Public Officers and Employees (https://archive.org/details/63cAmJur2dPublicOfficer
sAndEmployees_201512/page/n543). American Jurisprudence. Vol. 63C (2d. ed.). p. 543.
24. "§ 316". Public Officers and Employees (https://archive.org/details/63cAmJur2dPublicOfficer
sAndEmployees_201512/page/n545). American Jurisprudence. Vol. 63C (2d. ed.). p. 545.
25. § 8:22. Post-Harlow qualified immunity test in the circuits and the states: applicable
principles (Part I)—Whose decisions determine clearly settled law?, 2 Nahmod, Civil Rights
& Civil Liberties Litigation: The Law of Section 1983 § 8:22
26. City & Cty. of San Francisco v. Sheehan, No. 13-1412 (https://supreme.justia.com/cases/fed
eral/us/575/13-1412/), 575 U.S. ___ (2015).
27. "The Case Against Qualified Immunity, Part III" (https://web.archive.org/web/2019052715225
5/https://reason.com/2018/06/13/the-case-against-qualified-immunity-part-3/). June 13, 2018.
Archived from the original (https://reason.com/2018/06/13/the-case-against-qualified-immuni
ty-part-3/) on May 27, 2019.
28. Rolfs, Colin (2011). "Qualified Immunity After Pearson v. Callahan" (https://www.uclalawrevi
ew.org/qualified-immunity-after-pearson-v-callahan-2/). UCLA Law Review. 59: 468–502.
29. Saucier v. Katz, 533 U.S. 194 (https://supreme.justia.com/cases/federal/us/533/194/) (2001).
30. Pearson v. Callahan, 555 U.S. 223, 818 (https://supreme.justia.com/cases/federal/us/555/22
3/#818) (2009).
31. Pearson, 555 U.S. at 821.
32. Jaicomo, Patrick; Bidwell, Anya (May 20, 2020). "Police act like laws don't apply to them
because of 'qualified immunity.' They're right" (https://www.usatoday.com/story/opinion/2020/
05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/). USA
Today. Archived (https://web.archive.org/web/20200603233143/https://www.usatoday.com/st
ory/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283
349002/) from the original on June 3, 2020. Retrieved June 4, 2020. "With that novel
invention, the court granted all government officials immunity for violating constitutional and
civil rights unless the victims of those violations can show that the rights were "clearly
established." Although innocuous sounding, the clearly established test is a legal obstacle
nearly impossible to overcome."
33. "Frequently Asked Questions About Qualified Immunity" (https://www.unlawfulshield.com/fre
quently-asked-questions-about-qualified-immunity/). Unlawful Shield. The Cato Institute.
Archived (https://web.archive.org/web/20200604231400/https://www.unlawfulshield.com/fre
quently-asked-questions-about-qualified-immunity/) from the original on June 4, 2020.
Retrieved June 4, 2020. "To deny qualified immunity, courts generally require not just a clear
legal rule, but a prior case with functionally identical facts."
34. Chung, Andrew; Hurley, Lawrence; Botts, Jackie; Januta, Andrea; Gomez, Guillermo (May
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cannot be held accountable for violating the Constitution unless they violate a “clearly
established” constitutional rule. In practice, that means that government officials can only be
held liable if a federal court of appeals or the U.S. Supreme Court has already held that
someone violated the Constitution by engaging in precisely the same conduct under
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circumstances is illegal or unconstitutional. If none exists, the official is immune. Whether the
official’s actions are unconstitutional, intentional or malicious is irrelevant to the test."
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External links
For cops who kill, special Supreme Court protection (https://www.reuters.com/investigates/s
pecial-report/usa-police-immunity-scotus/) - Investigative report from Reuters with statistics
and case studies

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