Why Hasn't Qualified Immunity Been Overturned?
Qualified immunity is a court-created defense. Section 1983 says that a person who violates constitutional rights under color of law “shall be liable.”
The statute never mentions qualified immunity. The Constitution never mentions it. Congress never enacted it, and no president signed it into law.
The Supreme Court created it.
That is a plain statement of fact. The Court created qualified immunity in Pierson v. Ray (1967). It expanded the defense in Harlow v. Fitzgerald (1982) and has tightened it ever since. The result is a court-made rule that overrides the plain text of a law Congress passed and the President signed in 1871.
The obvious question is: why hasn’t it been overturned?
The doctrine has no statutory basis
Start with the text. Section 1983 reads:
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 in an action at law, suit in equity, or other proper proceeding for redress.
“Shall be liable.” Not “shall be liable unless the constitutional right wasn’t clearly established.” Not “shall be liable unless a reasonable officer wouldn’t have known.” Just: shall be liable.
The original 1871 text was even clearer
The text on the books today is already bad news for qualified immunity. The original 1871 law was even more direct.
Congress passed the Civil Rights Act of 1871, also called the Ku Klux Klan Act. It said state actors who violate constitutional rights “shall be liable.” It added a second clause too. That clause made the liability apply despite any contrary state “law, statute, ordinance, regulation, custom, or usage.”
That matters. In Pierson v. Ray, the Court justified qualified immunity as a carryover from common-law defenses. The original statute saw that move coming and told courts not to make it. If state law or state common-law immunity pointed one way and the federal statute pointed the other, the federal statute won.
Three years later, Congress reorganized the federal statutes in the Revised Statutes of 1874. That “notwithstanding” clause was left out of the new text. Defenders of qualified immunity sometimes treat the omission as proof that the clause never mattered. The better reading is the opposite. Codifiers in the 1800s often cut repeated “notwithstanding” clauses to save space without changing meaning. The 1874 revision was meant to condense and reorganize the statutes. It was not meant to quietly bring back defenses the 42nd Congress had just removed.
So the history problem for qualified immunity is bigger than the modern text saying “shall be liable.” The original Congress said it in even stronger terms. It also made clear that contrary state-law rules were not supposed to survive.
The Court’s first reason, in Pierson, was that common-law defenses of good faith and probable cause survived the statute. But in Harlow, the Court dropped the good-faith requirement. It replaced the question “did the officer act in good faith?” with “was the right clearly established?” That cut even the thin thread back to the common law.
What remains is a rule with no basis in the text, no basis in history, and no vote behind it. The Supreme Court has no power to make laws. The Constitution gives that power to Congress. Qualified immunity is a court-made rule now treated as if Congress had written it into the statute.
Under the Court’s own framework, QI can’t survive
The current Supreme Court majority follows textualism. That is the principle that statutes mean what they say. In Bostock v. Clayton County (2020), Justice Gorsuch wrote for the majority: “Only the written word is the law, and all persons are entitled to its benefit.”
Apply that principle to § 1983. The written word says “shall be liable.” There is no immunity exception. Under an honest textualist reading, qualified immunity cannot survive.
Justice Thomas has said as much. In his concurrence in Ziglar v. Abbasi (2017), he wrote that the “qualified immunity doctrine appears to stray from the statutory text.” That’s a sitting Supreme Court Justice saying, in a published opinion, that the doctrine contradicts the statute.
If a lower court invented a rule that contradicted the plain text of a federal statute, the Supreme Court would reverse it at once. Qualified immunity survives for one reason. Reversing it means the Court must overrule itself and admit it has been wrong for more than fifty years.
Why the Supreme Court won’t do it
Institutional pride
Overturning qualified immunity means admitting that the Court itself created the problem. Not a lower court, not a legislature, not an agency. The Court built a rule that has blocked accountability for constitutional violations for more than 55 years. The Court rarely admits error on this scale.
But it has before. Brown v. Board of Education overturned Plessy v. Ferguson after 58 years. Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade after 49 years. The Court can reverse long-standing precedent when a majority decides the first decision was wrong. The question is whether five current Justices think qualified immunity was wrong, and whether they will say so.
The floodgates argument
The Court, and amicus briefs from government defendants, often argue that removing qualified immunity would “open the floodgates.” The fear is a wave of frivolous lawsuits against police, swamped courts, and officers afraid to do their jobs.
This argument has several problems:
The statute was designed to open the floodgates. Congress passed § 1983 in 1871 so that citizens could sue state officials who violated their rights. The whole point was broad liability. The Court’s job is to apply the statute Congress wrote, not to decide that Congress got the policy wrong.
Other countries don’t have qualified immunity and do fine. The United Kingdom, Canada, and most European democracies hold officials liable for rights violations without a clearly-established-law shield. Their police still work. Their courts are not swamped.
Officers rarely pay. Studies show that individual officers almost never pay § 1983 judgments out of pocket. The city usually pays. Removing QI would put more money pressure on cities. That gives cities a stronger reason to train better, supervise better, and discipline officers who violate rights.
Political pressure
Police unions and government groups are among the most active amicus filers at the Supreme Court. Every QI case draws briefs arguing that removal would be a disaster. These groups also have strong political ties and lobbying power.
The Justices don’t exist in a vacuum. They read the briefs. They attend the conferences. They know the political fallout of their decisions.
The cert denial strategy
The Court’s most effective tool for protecting qualified immunity is also the simplest. It refuses to hear challenges. The Court takes about 70 to 80 cases per term out of more than 7,000 petitions. QI challenges are routinely turned away.
In June 2020, weeks after George Floyd’s murder and during nationwide protests for police accountability, the Court denied review in every pending qualified immunity case. More than a dozen petitions, with different facts and different legal arguments, were all turned away without comment.
The Court can protect qualified immunity simply by refusing to hear the arguments against it.
Why Congress hasn’t fixed it
They tried
The George Floyd Justice in Policing Act passed the House of Representatives in March 2021. Section 102 would have ended qualified immunity for police officers in § 1983 cases. The bill died in the Senate without a floor vote.
The Ending Qualified Immunity Act has been introduced in several sessions of Congress. It has not received a committee vote.
The political math
Polls consistently show that majorities in both parties support qualified immunity reform. But poll numbers do not turn into votes in Congress, for several reasons:
Police union campaign contributions. Police unions are major donors in both parties. A vote to “remove police protections” is easy attack-ad material, no matter how misleading that label is.
The filibuster. The Senate needs 60 votes to end debate, so a determined minority can block a bill forever. Even if 55 senators backed QI reform, 41 could stop the vote.
Framing. Supporters of QI reform are arguing: “enforce the statute Congress already passed in 1871.” Opponents frame it as: “stripping protections from brave officers.” The second frame is simpler, scarier, and better suited to a 30-second ad.
The fundamental irony
Congress spoke clearly in 1871. They said “shall be liable.” The Supreme Court overrode them. Now people ask Congress to speak again — as if the first time wasn’t clear enough.
The problem is not that Congress failed to speak. The problem is that the Court swapped its own policy views for the statute’s plain text, and neither branch has forced the issue since.
State-level reforms that actually happened
Federal qualified immunity is untouched. But several states have created their own civil rights laws without QI:
Colorado (2020) — SB 217 ended qualified immunity for claims under the new state civil rights act. Officers can be held personally liable. Agencies must cover the judgment unless the officer acted in bad faith. Colorado was the first state to remove QI.
New Mexico (2021) — The New Mexico Civil Rights Act created a state claim for constitutional violations with no qualified immunity defense.
Connecticut (2020) — A police accountability law limited QI for certain claims.
New York City (2021) — The city ended QI for certain claims against NYPD officers.
What happened after these reforms? Not the disaster QI defenders predicted. Colorado did not see officers leave in droves. Courts were not buried in frivolous suits. Police departments kept working. The reforms showed that accountability and working police forces can coexist.
But state reforms only apply to state-law claims. Federal § 1983 qualified immunity remains unchanged, because only Congress or the Supreme Court can change it.
Why challenging QI at SCOTUS is so hard
Getting a case to the Supreme Court costs $100,000 to $500,000 or more in legal fees. The people most harmed by qualified immunity, people whose rights were violated by police, are often the people who cannot afford a lawyer. That’s why so many § 1983 plaintiffs are pro se in the first place.
Civil rights groups pick their test cases with care. They build cert petitions around the best facts and the best legal arguments. The Court keeps denying cert anyway.
Even if a case gets cert, you need five Justices willing to overturn decades of the Court’s own precedent. Thomas and Gorsuch have shown some openness to a second look at QI. That’s two votes. Three more are needed. The current Court does not clearly supply them.
Pro se cert petitions are granted about 0.03% of the time. The people who most need QI overturned are the people least able to challenge it.
What would actually have to change
Option 1: Supreme Court reversal. This needs the right case to reach the Court, a cert grant (the main hurdle), and five Justices willing to read the statute as written. The textualist case is strong, maybe the strongest argument against QI. But the Court has to agree to hear it first.
Option 2: A new law from Congress. This needs 60 Senate votes or filibuster reform. The George Floyd Act showed the House can pass it. The Senate needs either a political sea change or a rules change.
Option 3: State-by-state reform. This is working, but slowly. Each state that ends QI for state claims adds proof that the sky does not fall. That builds the case for federal reform. But state reforms do not touch federal § 1983 claims.
Option 4: A constitutional amendment. In theory, an amendment barring qualified immunity would override the Court. In practice it is out of reach. It needs two-thirds of both houses of Congress plus three-fourths of the state legislatures.
The most realistic path is probably a mix. States keep reforming and build the evidence. The Court’s makeup shifts over time. Then comes either a breakthrough in Congress or a cert grant with five Justices ready to act.
The absurdity, stated plainly
In 1871, Congress said: if a government official violates your constitutional rights, they are liable.
In 1967, the Supreme Court said: not unless a prior case already gave officers enough notice that it was wrong.
In 1982, the Court said: and it doesn’t matter whether they personally knew it was wrong — only whether the law was “clearly established.”
In 2009, the Court said: and courts don’t even have to decide whether it was wrong. They can dismiss on “not clearly established” without ever ruling on the constitutional question. (Pearson v. Callahan)
Congress did not vote for any of this. The people who benefit from qualified immunity often have the power and money to defend it. The people harmed by it often lack the money and access to challenge it at the only court that can change it.
That is why qualified immunity can feel less like a neutral rule and more like a barrier built to protect the government from suit.
What you can do
Challenge QI in your briefing. Even if you lose on qualified immunity, make the court address it. Force the judge to write the words: “The officer violated your constitutional rights, but qualified immunity bars the claim.” Every time a court says that out loud, it adds to the public record of how absurd the doctrine is.
Support state-level reform. Contact your state legislators about creating a state civil rights act without qualified immunity. Colorado, New Mexico, and Connecticut showed it’s possible.
Contact your members of Congress. Ask about the Justice in Policing Act or any bill that follows it. QI reform polls well. Lawmakers need to hear that voters are watching.
Document everything. Report police interactions to policeconduct.org ↗. Data builds the case for reform.
Join the conversation. r/Section1983_pro_se ↗ is a community of people dealing with the same system.
The doctrine cannot be defended on the text, the history, or democratic grounds. The only things holding it up are inertia and political math. Those things change. Slowly, and with frustration, but they change.
For more on how qualified immunity works in practice, read Terms and Concepts: Qualified Immunity and Terms and Concepts: Clearly Established Law. For the argument that Congress should reform QI, see Terms and Concepts: Qualified Immunity Reform.