The Doctrine of Qualified Immunity

The current doctrine of qualified immunity from official liability for unconstitutional conduct is overbroad to achieve the goal of fair notice to officers. A qualified immunity is justified in cases of newly announced constitutional rules, or new applications of existing rules, but, unlike the current doctrine, not when the official’s conduct was in bad faith, a crime, or malum in se. The touchstone should be the predictability, from the official’s standpoint, of liability. The doctrine should not apply in cases involving the application of vague standards of conduct—reasonableness and the like—when the previously-stated rationales or purposes of the rule clearly apply to the official’s conduct. This analysis justifies reforming but not abolishing the doctrine.

Respondent: Professor Timothy Endicott (All Souls, Oxford)