Why Hasn't Qualified Immunity Been Overturned?
Qualified immunity is a court-created defense. Section 1983 says that a person who violates constitutional rights under color of law “shall be liable.”
The statute never mentions qualified immunity. The Constitution never mentions it. Congress never enacted it, and no president signed it into law.
The Supreme Court created it.
That is a factual description. The Court created qualified immunity in Pierson v. Ray (1967), expanded it dramatically in Harlow v. Fitzgerald (1982), and has been tightening it ever since. The result is a court-created doctrine that effectively overrides the plain text of a statute passed by Congress and signed by the President in 1871.
The obvious question is: why hasn’t it been overturned?
The doctrine has no statutory basis
Start with the text. Section 1983 reads:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
“Shall be liable.” Not “shall be liable unless the constitutional right wasn’t clearly established.” Not “shall be liable unless a reasonable officer wouldn’t have known.” Just: shall be liable.
The original 1871 text was even clearer
The current codified text is already bad news for qualified immunity. But the original 1871 enactment was even more explicit.
When Congress passed the Civil Rights Act of 1871, also called the Ku Klux Klan Act, it said state actors who violate constitutional rights “shall be liable.” It also added a reinforcing clause making that liability apply notwithstanding any contrary state “law, statute, ordinance, regulation, custom, or usage.”
That matters because qualified immunity was justified in Pierson v. Ray as a carryover from common-law defenses. The original statute anticipated exactly that kind of move and told courts not to do it. If state law, state custom, or state common-law immunity pointed one way, and the federal statute pointed the other, the federal statute controlled.
Three years later, when Congress reorganized the federal statutes in the Revised Statutes of 1874, that “notwithstanding” language was omitted from the codified text. Qualified-immunity defenders sometimes treat that omission as proof that the clause does not matter. The better historical reading is the opposite: nineteenth-century codifiers routinely cut repetitive “notwithstanding” clauses for concision without changing substance. The point of the 1874 revision was to condense and reorganize the federal statutes, not quietly restore defenses that the 42nd Congress had just displaced.
So the historical problem for qualified immunity is larger than the modern text saying “shall be liable.” The original Congress said so in even more emphatic terms and specifically signaled that contrary state-law rules were not supposed to survive.
The Court’s original justification in Pierson was that common-law defenses of good faith and probable cause survived the statute’s enactment. But in Harlow, the Court stripped out the good-faith requirement entirely — replacing the subjective “did the officer act in good faith?” with the objective “was the right clearly established?” That severed even the tenuous connection to historical common law.
What remains is a doctrine with no textual basis, no historical basis, and no democratic legitimacy. The Supreme Court has no Article I legislative power. The Constitution gives lawmaking authority to Congress. Qualified immunity is a court-created rule now being treated as if Congress had written it into the statute.
Under the Court’s own framework, QI can’t survive
The current Supreme Court majority is committed to textualism — the principle that statutes mean what they say. In Bostock v. Clayton County (2020), Justice Gorsuch wrote for the majority: “Only the written word is the law, and all persons are entitled to its benefit.”
Apply that principle to § 1983. The written word says “shall be liable.” There is no immunity exception. Under honest textualist analysis, qualified immunity cannot survive.
Justice Thomas has acknowledged this. In his concurrence in Ziglar v. Abbasi (2017), he wrote that the “qualified immunity doctrine appears to stray from the statutory text.” That’s a sitting Supreme Court Justice saying, in a published opinion, that the doctrine contradicts the statute.
If any lower court had invented a doctrine that contradicted the plain text of a federal statute, the Supreme Court would reverse it without hesitation. The only reason qualified immunity survives is that reversing it requires the Court to overrule itself — to admit that it has been wrong for over half a century.
Why the Supreme Court won’t do it
Institutional pride
Overturning qualified immunity means admitting that the Court — not a lower court, not a legislature, not an executive agency — created an illegitimate doctrine that has blocked accountability for constitutional violations for 55+ years. The Court rarely admits error on this scale.
But it has before. Brown v. Board of Education overturned Plessy v. Ferguson after 58 years. Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade after 49 years. The Court is capable of reversing long-standing precedent when a majority decides the original decision was wrong. The question is whether a majority of the current Court believes qualified immunity was wrong and whether they’re willing to say so.
The floodgates argument
The Court and amicus briefs from government defendants routinely argue that removing qualified immunity would “open the floodgates” to frivolous lawsuits against police officers, overwhelming courts and making officers afraid to do their jobs.
This argument has several problems:
The statute was designed to open the floodgates. Congress passed § 1983 in 1871 specifically to allow citizens to sue state officials who violated their rights. The entire point was to create broad liability. The Court’s job is to apply the statute Congress wrote — not to decide that Congress got the policy wrong.
Other countries don’t have qualified immunity and function fine. The United Kingdom, Canada, and most European democracies hold government officials accountable for constitutional violations without a clearly-established-law shield. Their police forces still function. Their courts aren’t overwhelmed.
Officers are usually indemnified. Studies consistently show that individual officers rarely pay § 1983 judgments out of pocket. The municipality usually pays. Removing QI would shift more financial pressure onto cities, which can create stronger incentives to train better, supervise better, and discipline officers who violate rights.
Political pressure
Law enforcement unions and government associations are among the most active amicus filers at the Supreme Court. Every QI case draws amicus briefs arguing that removal would be catastrophic. These organizations also have significant political connections and lobbying power.
The Justices don’t exist in a vacuum. They read the briefs. They attend the conferences. They’re aware of the political consequences of their decisions.
The cert denial strategy
The most effective way the Court protects qualified immunity is the simplest: it refuses to hear challenges. The Court accepts roughly 70-80 cases per term out of 7,000+ petitions. QI challenges are routinely denied.
In June 2020 — weeks after George Floyd’s murder, with nationwide protests demanding police accountability — the Court denied certiorari in every pending qualified immunity case. Over a dozen petitions, presenting various fact patterns and legal arguments for reconsidering the doctrine, were all declined without comment.
The Court can protect qualified immunity simply by refusing to hear the arguments against it.
Why Congress hasn’t fixed it
They tried
The George Floyd Justice in Policing Act passed the House of Representatives in March 2021. Section 102 would have eliminated qualified immunity for law enforcement officers in § 1983 actions. The bill died in the Senate without a floor vote.
The Ending Qualified Immunity Act has been introduced in multiple sessions of Congress. It has not received a committee vote.
The political math
Public polling consistently shows that majorities of both parties support qualified immunity reform. But polling support doesn’t translate to legislative votes for several reasons:
Police union campaign contributions. Law enforcement unions are major donors in both parties. Voting to “remove police protections” is easy attack-ad material, regardless of how substantively accurate the characterization is.
The filibuster. The Senate’s 60-vote threshold means a determined minority can block legislation indefinitely. Even if 55 senators supported QI reform, 41 senators could prevent a vote.
Framing. Supporters of QI reform are arguing: “enforce the statute Congress already passed in 1871.” Opponents frame it as: “stripping protections from brave officers.” The second frame is simpler, scarier, and better suited to a 30-second ad.
The fundamental irony
Congress spoke clearly in 1871. They said “shall be liable.” The Supreme Court overrode them. Now people ask Congress to speak again — as if the first time wasn’t clear enough.
The problem isn’t that Congress hasn’t expressed its will. The problem is that the Court substituted its own policy preferences for the statute’s plain text, and neither branch has forced the issue since.
State-level reforms that actually happened
While federal qualified immunity remains untouched, several states have created their own civil rights statutes without QI:
Colorado (2020) — SB 217 eliminated qualified immunity for claims under the new state civil rights act. Officers can be held personally liable, though agencies must indemnify unless the officer acted in bad faith. This was the first state to remove QI.
New Mexico (2021) — The New Mexico Civil Rights Act created a state cause of action for constitutional violations with no qualified immunity defense.
Connecticut (2020) — Police accountability legislation limiting QI for certain claims.
New York City (2021) — City-level elimination of QI for certain claims against NYPD officers.
What happened after these reforms? Not the apocalypse that QI defenders predicted. Colorado didn’t see a mass exodus of officers. Courts weren’t overwhelmed with frivolous suits. Police departments continued to function. The reforms demonstrated that accountability and functional law enforcement can coexist.
But state reforms only apply to state-law claims. Federal § 1983 qualified immunity remains unchanged, because only Congress or the Supreme Court can modify it.
Why challenging QI at SCOTUS is so hard
Getting a case to the Supreme Court costs $100,000 to $500,000+ in legal fees. The people most harmed by qualified immunity — people whose rights were violated by police — are disproportionately people who can’t afford attorneys. That’s why so many § 1983 plaintiffs are pro se in the first place.
Civil rights organizations pick their vehicles carefully, crafting cert petitions with the best possible fact patterns and legal arguments. And the Court keeps denying cert anyway.
Even if a case gets cert, you need five Justices willing to overturn decades of the Court’s own precedent. Thomas and Gorsuch have signaled some openness to reconsidering QI. That’s two votes. Three more are needed. The current composition of the Court doesn’t clearly provide them.
Pro se petitions for certiorari are granted at a rate of approximately 0.03%. The people who most need QI overturned are the people least able to challenge it.
What would actually have to change
Option 1: Supreme Court reversal. Requires the right case reaching the Court, cert being granted (the main obstacle), and five Justices willing to read the statute as written. The textualist case is strong — maybe the strongest argument against QI. But the Court has to agree to hear it first.
Option 2: Congressional legislation. Requires 60 Senate votes or filibuster reform. The George Floyd Act showed that House passage is achievable. Senate passage requires either a political sea change or a procedural one.
Option 3: State-by-state reform. Working but slow. Each state that eliminates QI for state claims provides evidence that the sky doesn’t fall — building the case for federal reform. But state reforms don’t touch federal § 1983 claims.
Option 4: Constitutional amendment. Theoretically possible — an amendment explicitly barring qualified immunity would override the Court’s doctrine. Practically impossible: requires two-thirds of both chambers of Congress plus three-fourths of state legislatures.
The most realistic path is probably a combination: continued state-level reform building evidence and momentum, shifting Court composition over time, and eventually either a legislative breakthrough or a cert grant with five sympathetic Justices.
The absurdity, stated plainly
In 1871, Congress said: if a government official violates your constitutional rights, they are liable.
In 1967, the Supreme Court said: not unless a prior case already gave officers enough notice that it was wrong.
In 1982, the Court said: and it doesn’t matter whether they personally knew it was wrong — only whether the law was “clearly established.”
In 2009, the Court said: and courts don’t even have to decide whether it was wrong — they can dismiss on “not clearly established” without ever ruling on the constitutional question. (Pearson v. Callahan)
Congress did not vote for any of this. The people who benefit from qualified immunity often have the institutional power and resources to defend it. The people harmed by it often do not have the money or access needed to challenge it at the only court that can change it.
That is why qualified immunity can feel less like a neutral rule and more like a barrier built to protect the government from suit.
What you can do
Challenge QI in your briefing. Even if you lose on qualified immunity, make the court address it. Force the judge to write the words: “The officer violated your constitutional rights, but qualified immunity bars the claim.” Every time a court says that out loud, it adds to the public record of the doctrine’s absurdity.
Support state-level reform. Contact your state legislators about creating a state civil rights act without qualified immunity. Colorado, New Mexico, and Connecticut showed it’s possible.
Contact your federal representatives. Ask specifically about the Justice in Policing Act or successor legislation. QI reform polls well — legislators need to hear that their constituents are watching.
Document everything. Report police interactions to policeconduct.org ↗. Data builds the case for reform.
Join the conversation. r/Section1983_pro_se ↗ is a community of people navigating the same system.
The doctrine is indefensible on textual, historical, and democratic grounds. The only thing sustaining it is institutional inertia and political calculation. Those things change — slowly, frustratingly, but they change.
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