Volume 21

An Unqualified Defense of Qualified Immunity

by Elliott Averett

This Note argues that, rather than being eliminated, qualified immunity should be strengthened in the face of a nationwide increase in violent crime and collapsing police staffing. This paper first examines efforts to repeal qualified immunity in Congress as well as recently enacted statutes designed to circumvent it in New Mexico, Colorado, and New York City. It then responds to two common critiques of qualified immunity. Qualified immunity is much weaker than is commonly believed, as fewer than four percent of civil rights lawsuits are dismissed on qualified immunity grounds, and textualist critiques about qualified immunity are inherently selective. The paper then explains why eliminating qualified immunity is unjust: it leaves police officers liable even in cases where a damages award does nothing to deter misconduct and imposes legal costs on defendants which frequently exceed any damages. Finally, this paper addresses the policy rationale for qualified immunity by examining previously unpublished law enforcement employment data from Colorado, where qualified immunity was circumvented in June 2020. This evidence suggests that ending qualified immunity will contribute to rising crime as officers pull back from pro-active policing or leave the profession. The paper concludes by endorsing a ver-sion of the good faith test for qualified immunity which could prevent it from becoming a total nullity. 


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