
Origins and Evolution of Qualified Immunity
Qualified immunity began in 1967 with Pierson v. Ray, protecting officers acting with “good faith” and probable cause. In 1982, Harlow v. Fitzgerald removed the good faith requirement. Now, officers avoid liability unless there’s clear, established law against their actions.
The 2008 Pearson v. Callahan ruling allowed courts to grant qualified immunity without first determining if a constitutional violation occurred. This means officers can claim immunity unless an almost identical previous case exists.
Harlow also shifted focus from officers’ intent to whether a reasonable person would have known the act violated rights. This change has made it harder for aggrieved parties to succeed in lawsuits against officers.

Legal Justifications and Criticisms
The Supreme Court justifies qualified immunity as balancing accountability with protecting officials from burdensome litigation. They argue it prevents frivolous lawsuits and encourages public service.
Critics, including Judge Thomas, argue the doctrine strays from historical immunity and creates an impenetrable shield for government officials. The “clearly established law” requirement is seen as an unreasonable barrier, potentially stifling the evolution of constitutional law.
The doctrine’s impact on police accountability is a major point of contention. Critics argue it often gives officers a free pass for misconduct, undermining efforts at reform and justice for victims.

Impact on Police Accountability
Qualified immunity often protects officers accused of misconduct, frustrating victims seeking justice. The doctrine’s requirement for nearly identical precedent makes successful lawsuits rare.
This legal shield can hinder police reform efforts by state legislatures and city councils. It also affects public perceptions of law enforcement accountability.
The doctrine’s effects on transparency and justice continue to fuel debates about its role in modern law enforcement oversight.
Legislative and Judicial Efforts to Reform
The George Floyd Justice in Policing Act, which aimed to eliminate qualified immunity, passed the House but stalled in the Senate. Critics argued removing the doctrine would lead to frivolous lawsuits and mass officer resignations.
States like Colorado and New Mexico have enacted legislation to limit qualified immunity within their borders. Advocacy groups continue to push for reform at various levels of government.
In the judiciary, some justices, including Thomas, have suggested reconsidering the doctrine’s jurisprudence. However, the Supreme Court has largely maintained qualified immunity in its current form.
Originalism and Qualified Immunity
Originalist critics argue qualified immunity lacks historical basis in the Constitution or 1871 common law. Justice Thomas has questioned whether the doctrine aligns with the Founders’ intent.
Some originalists contend certain immunities can be inferred or tolerated under originalist doctrine as protectors of public service. They argue this allows focus on clear constitutional violations rather than individual mistakes.
The debate continues over whether qualified immunity fits within an originalist interpretation of the Constitution.

Qualified immunity remains a contentious issue, with ongoing debates about its roots, implications, and place in modern law.
- Pierson v. Ray, 386 U.S. 547 (1967)
- Harlow v. Fitzgerald, 457 U.S. 800 (1982)
- Pearson v. Callahan, 555 U.S. 223 (2009)
- George Floyd Justice in Policing Act of 2021, H.R. 1280, 117th Cong. (2021)