Qualified Immunity

What It Is

Qualified immunity is a defense that protects government officials from civil liability under § 1983 unless their conduct violated a “clearly established” constitutional right. It’s not in the statute. Congress never enacted it. The Supreme Court invented it in Harlow v. Fitzgerald, 457 U.S. 800 (1982).

How It Works

To overcome qualified immunity, you must show:

1. The official violated a constitutional right
2. That right was “clearly established” at the time of the violation

“Clearly established” means there must be existing precedent — usually from the Supreme Court or your circuit — with facts sufficiently similar to yours that a reasonable official would have known their conduct was unlawful.

Not similar in principle. Similar in specific factual detail.

The Catch-22

Courts can deny your case on either prong and skip the other. After Pearson v. Callahan, 555 U.S. 223 (2009), judges can skip straight to “clearly established” without ever deciding whether your rights were violated.

This creates a cycle:

1. Officer violates your rights in a novel way
2. Court says: “No prior case with these exact facts → not clearly established → qualified immunity”
3. Because the court never ruled on the constitutional question, no precedent is created
4. Next person with the same violation faces the same “no prior case” problem

The right may never get established because courts keep skipping the question of whether it exists.

The Double Standard

If an officer claims ignorance of your constitutional rights, qualified immunity protects them. If you, a pro se litigant, fail to cite the right procedural rule, your case gets dismissed.

Officers get the benefit of the doubt for not knowing the law. You don’t.

What the Critics Say

Justice Clarence Thomas has questioned whether qualified immunity has any basis in the text of § 1983. In his concurrence in Ziglar v. Abbasi, 582 U.S. 120 (2017), Thomas wrote that the Court’s qualified immunity jurisprudence is “no longer grounded in the common-law backdrop against which Congress enacted” the statute.

Justice Sonia Sotomayor has called it a doctrine that “tells officers that they can shoot first and think later.”

Why It Matters for Pro Se Litigants

Qualified immunity is the most common reason § 1983 cases die. It gets raised in nearly every case — usually at the motion to dismiss stage or summary judgment. Understanding it isn’t optional.

Your job: find precedent in your circuit with facts close enough to yours that the court can’t call the right “not clearly established.” The more specific and factually similar, the better.

Key Cases

• Harlow v. Fitzgerald, 457 U.S. 800 (1982) — Created modern qualified immunity
• Pearson v. Callahan, 555 U.S. 223 (2009) — Let courts skip the constitutional question
• Ziglar v. Abbasi, 582 U.S. 120 (2017) — Thomas concurrence questioning QI’s basis
• Taylor v. Riojas, 592 U.S. 7 (2020) — “Obvious clarity” exception: some violations are so egregious no prior case is needed
• Hope v. Pelzer, 536 U.S. 730 (2002) — Prior case need not be “fundamentally similar” or “materially similar”