Getting It Right: Whether to Overturn Qualified Immunity

Qualified immunity, the defense available to police officers and other government officials facing civil rights lawsuits, has increasingly come under attack. In recent opinions, Justice Clarence Thomas has noted his growing concern that the Court\u27s current qualified immunity jurisprudence, which deals with whether a right is clearly established , strays from Congress\u27s intent in enacting the Civil Rights Act of 1871 (the statute giving rise to civil rights claims). Other jurists and legal scholars similarly criticize the doctrine, with many calling for the Court to revisit its qualified immunity jurisprudence and abolish or significantly alter the doctrine. Given that the Court\u27s qualified immunity precedents have been routinely followed for decades, should the Court overturn them, even if they are wrong? After all, as Justice Brandeis recognized, [s]tare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. 1 Moreover, qualified immunity is derived from statutory precedent, and the Court counsels that stare decisis concerns weigh heavily with such judicial doctrines. Assuming the Court erred in its current qualified immunity jurisprudence, this Article considers whether stare decisis concerns should be relaxed to allow qualified immunity to be overturned. This Article first addresses why relaxing stare decisis for statutory precedents is appropriate in the case of qualified immunity. The Article then builds on and applies a stare decisis framework advanced by Professor Randy Kozel2 to the Court\u27s qualified immunity jurisprudence to determine whether stare decisis requires the Court to preserve qualified immunity in its current form. After applying this framework, the Article ultimately concludes that the Court\u27s current clearly established law standard should be overturned, but some form of qualified immunity should remain