University of Chicago law professor and Volokh Conspiracy blogger William Baude has published an interesting new paper that argues against affording qualified immunity to police officers. This is the doctrine that says in order to sue an officer for a violation of your constitutional rights, you have to show not only that the officer committed the violation, but that at the time the violation occurred, it had been “clearly established” that the officer’s actions were unconstitutional.

From the abstract:

Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.

But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.

The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference. Rather than doubling down, the Court ought to be beating a retreat.

The paper also includes a handy table of every qualified immunity case the Supreme Court has considered since 1982.

Baude distinguishes qualified immunity from the sovereign immunity given to government, and the absolute immunity given to judges. He argues, correctly I think, that the latter are on firmer footing. But we also need to talk about the absolute immunity enjoyed by prosecutors, another bit of judge-made law (it isn’t in the Constitution, or even in the U.S. criminal code) that gives an already-powerful office way too much protection.

For a quick primer on how qualified immunity works, see this terrific cartoon on the topic by Nathan Burney.