Yesterday the Supreme Court issued a summary opinion in the White v. Pauly case. A police officer was sued for killing a man during an armed standoff during which the officers allegedly never identified themselves as police. The Supreme Court, however, concluded that the officer had “qualified immunity.” That is, he was immune from a suit for damages, because his conduct — while possibly unconstitutional — was not obviously unconstitutional.

As the court put it (with citation and quotations omitted):

Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. While this Court’s case law does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate. …
This is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham. Of note, the [lower court] majority did not conclude that [Officer] White’s conduct—such as his failure to shout a warning—constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that “this case presents a unique set of facts and circumstances” in light of White’s late arrival on the scene. This alone should have been an important indication to the majority that White’s conduct did not violate a clearly established right. . . .

(There is a little more in the short opinion, including the possibility that the other two officers, who were on the scene earlier, might still be liable. An interesting debate about the case takes place in this PrawfsBlawg thread.)

The court’s decision is a completely unsurprising turn in a long line of qualified immunity cases like this one. But I thought it was time to post a paper I have been working on for a long time on the legitimacy of this immunity doctrine. The title: “Is Qualified Immunity Unlawful?

Here’s the abstract:

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point. This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.

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.

You can read the whole thing here.