The Case Against Qualified Immunity

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93 Notre Dame Law Review 1797 (2018)

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Joanna C. Schwartz
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In Ziglar v. Abbasi, Justice Clarence Thomas recommended to the Court that, “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.” If the Supreme Court did find an appropriate case to reconsider qualified immunity, and took seriously available evidence about qualified immunity’s historical precedents and current operation, it could not justify continued existence of the doctrine in its current form. Qualified immunity is historically unmoored, ineffective at achieving its policy ends, and detrimental to the development of constitutional law. Scholarly defenses of the doctrine are similarly unpersuasive. The Court should not feel constrained by stare decisis, given the questionable foundations of qualified immunity and the liberty the Court has taken with its scope and structure over the fifty years of its existence. And there are many ways, short of downright repeal, that the Court could adjust the doctrine to better reflect its role in constitutional litigation. The Supreme Court has created the mess that is qualified immunity, and it is time for them to clean it up.