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Sunday, December 06, 2020

The Common Law of Qualified Immunity

I want to flag an important forthcoming article in Stanford Law Review entitled "Qualified and Absolute Immunity at Common Law." Here is the Abstract:

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But while there has been plenty of commentary criticizing the Court’s existing “clearly established law” test, there has been no thorough historical analysis examining the complicated subject of government officer immunities under nineteenth-century common law. Yet the legitimacy of state officer immunities, under the Court’s precedents, depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court’s own words, it cannot “make a freewheeling policy choice” and must apply immunities Congress implicitly adopted from the “common-law tradition.”

This Article therefore provides the first comprehensive review of the common law around 1871 on government officer immunities. In particular, it canvasses the four nineteenth-century treatises that the Supreme Court consults in assessing officer immunity under the common law of 1871: Cooley’s 1879 Law of Torts; Bishop’s 1889 Commentaries on Non-Contract Law; Mechem’s 1890 Law of Public Offices and Officers; and Throop’s 1892 Law Relating to Public Officers. Not only do these treatises collect many overlooked state common law precedents, but they rely heavily on the Supreme Court’s own, often ignored, nineteenth-century decisions.

These historical sources overwhelmingly refute the prevailing view among modern commentators about one critical aspect of qualified immunity. This Article confirms that the common law around 1871 did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties—like qualified immunity today.

But many other important features of the Supreme Court’s current officer immunity doctrines diverge significantly from the common law around 1871: (1) high-ranking executive officers had absolute immunity at common law, while today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer’s subjective improper purpose, instead of a violation of “clearly established law”; and (3) the plaintiff had the burden to prove improper purpose with clear evidence, while today there is confusion over this burden.

Restoring the common law around 1871 on state officer immunities could address many modern problems with qualified immunity, and these three features from the common law provide a roadmap for reforming qualified immunity. If high-ranking executive officials have absolute immunity, that would sufficiently protect the separation of powers without resort to the “clearly established law” test—which frequently denies plaintiffs money damages when lower-ranking executive officials violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases have the burden to prove lower-ranking officers’ subjective bad faith with clear and convincing evidence, then officer defendants and courts will have significant procedural mechanisms to dismiss insubstantial claims before trial.

Having read the paper, I can say that I think the basic argument is sound, though I have quibbles with some specific points. The article makes a significant contribution to what will likely be a long debate over qualified immunity reform.

Posted by Gerard Magliocca on December 6, 2020 at 08:48 PM | Permalink


Here's my reply: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3680714


In an important article, Scott Keller argues that in 1871 “the common law definitively accorded at least qualified immunity to all executive officers’ discretionary duties.” This is not correct. The common law did not recognize the doctrine of qualified immunity. It recognized a doctrine of quasi-judicial immunity.

A closer examination of the doctrine of quasi-judicial immunity shows just how distant it was from the modern doctrine of qualified immunity. It protected quasi-judicial acts like election administration and tax assessment, not ordinary law enforcement decisions. It allowed for harsh liability for officers who exceeded their authority. And the defense was not an immunity from suit. Thus, today’s doctrine of qualified immunity owes more to modern judicial invention than it does to the common law.

Posted by: Will Baude | Dec 9, 2020 10:08:42 PM

Important issue indeed. When and how to rely on common law, this is hell of issue by itself. By the way, very important ruling in this regard recently in the first circuit (concerning arrests of immigrants while showing in courts for hearing) very recommended, here:


Just concerning clearly established doctrine. One should not forget. When one officer has been fount not liable (typically, fourth amendment) that doesn't mean that he was wrong or right even. But rather, he didn't know, he couldn't know, what the law and jurisprudence say about the particular, and many times, stressing situation he has faced. What he could do, is rather, to guess. Rather to use intuition. This is problematic. So, it is rather about particular case or situation, over, case law even one may argue.

So, we have a victim. Has Suffered undue injury on one hand, on the other, police officer, who didn't know, and couldn't know, what the law says. What is left, is to compensate the victim, and pay him suppose, from public money, without guilt or admitting liability. That is a fair and reasonable solution.


Posted by: El roam | Dec 7, 2020 5:46:29 AM

It's an important piece. I'll be posting a response soon, likely this month. So will Jim Pfander, I think.

Posted by: Will Baude | Dec 6, 2020 10:08:59 PM

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