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The Observatory · Case 53 · Rights · 1967 to 2025

Qualified immunity (United States, 1967 to 2025)

Not yet reviewed by a person. This page was researched and written with the help of AI tools. Every key claim is labeled by evidence status near the end, but no person has checked the sources yet. Treat it as a draft.
No one has verified this page yet. No verifier is recorded.
Sources checked 2026-10-25. Preliminary research, not a final verdict.

In this packet
1. Review status · 2. The article · 3. Sources and their details · 4. Every link used · 5. Revision history · 6. How to cite

1. Review status

Status: Not yet reviewed by a person. This page was researched and written with the help of AI tools. Every key claim is labeled by evidence status near the end, but no person has checked the sources yet. Treat it as a draft.
Verified by: No one has verified this page yet. No verifier is recorded.
Sources checked: 2026-10-25
Review history: https://michiinstitute.com/members/reviews.html?case=qualified-immunity
Packet built: 2026-10-28

2. The article

Since 1967 the Supreme Court has shielded officials from money damages unless they broke "clearly established" law; defenders cite fair notice and fear of chilling officials, critics cite a gap in accountability, and a few states have changed the rule.

In brief

In 1967 the Supreme Court held that police could use a good-faith defense when sued under Section 1983. In 1982 it replaced that test with a rule that officials are shielded from damages unless they violated "clearly established" law. Supporters say officials need fair notice and should not be punished for unclear rules. Critics say injured people are left without a remedy. The evidence is mixed. Joanna Schwartz found that immunity ended 38 of 979 eligible cases in five districts in 2011 and 2012. Her critics reply that the data miss settlements and deterred suits. Reuters found immunity granted in 57% of excessive force appeals in the last three years of a 2005 to 2019 sample. Colorado in 2020 and New Mexico in 2021 passed laws that bar the defense in state-law suits, and members of Congress have proposed a federal bar. What the record shows is that a rule made by judges can be changed by legislatures, and that the public has rarely had clear numbers on what the rule does.

The record

What the doctrine is

Qualified immunity is a rule made by courts, not written out in the text of Section 1983 (42 U.S.C. 1983), the federal law that lets people sue state and local officials for violating federal rights. (Described in Nielson and Walker, 2018; the dispute over whether the doctrine has a legal basis is Section 3 below.)
Today's test comes from Harlow v. Fitzgerald (decided June 24, 1982). Officials performing discretionary functions are shielded from damages unless their conduct violates "clearly established statutory or constitutional rights." The Court named the social costs it was weighing: "the diversion of official energy from pressing public issues" and "the expenses of litigation." It dropped the earlier test of an official's state of mind, because that test "frequently has proved incompatible with" ending insubstantial claims before trial. (Justice, Harlow v. Fitzgerald, 457 U.S. 800; opened)
It is both a defense to paying damages and, in the Court's words in Pearson, "an immunity from suit rather than a mere defense to liability." (Justice, Pearson v. Callahan, 555 U.S. 223; opened)

Timeline of the main court decisions

Date	Event	Source
Apr. 11, 1967	Pierson v. Ray: ministers arrested at a Jackson, Mississippi bus terminal sue police; Court holds the good faith and probable cause defense known from common-law false arrest also applies in Section 1983 suits	Justice, 386 U.S. 547
June 24, 1982	Harlow v. Fitzgerald: objective "clearly established" test replaces the subjective good-faith element	Justice, 457 U.S. 800
June 27, 2002	Hope v. Pelzer: guards cuffed an Alabama inmate to a hitching post for about seven hours; Court denies immunity and rejects a demand for "materially similar" earlier cases, relying on "fair warning"	Cornell LII, 536 U.S. 730
Jan. 21, 2009	Pearson v. Callahan: judges may choose which of two questions to decide first (was a right violated; was it clearly established)	Justice, 555 U.S. 223
Nov. 2, 2020	Taylor v. Riojas (per curiam): Texas inmate held six days in cells covered in feces and sewage; Court says "no reasonable correctional officer" could have thought it permissible; Justice Alito concurs in the judgment, Justice Thomas dissents, Justice Barrett took no part	Cornell LII, No. 19-1261

In Pierson the Court wrote that officers are not required to predict future constitutional rulings. (Justice, Pierson v. Ray; opened)
Hope and Taylor show that the Court has, in some cases, denied or vacated immunity without a case on identical facts. Taken together, the opinions show a rule that can protect officials in some cases and not in others, depending on how the lower court reads "clearly established." (Cornell LII, Hope; Cornell LII, Taylor; opened)

Empirical studies

Joanna Schwartz, "How Qualified Immunity Fails," 127 Yale Law Journal (2017). She read dockets of 1,183 Section 1983 cases against state and local law enforcement filed in 2011 and 2012 in five federal districts. Qualified immunity could not be raised in 17.3% of them. It produced dismissals in 38 cases, which is 3.9% of the 979 cases where it could be raised, or 3.2% of all 1,183. She concludes it "rarely served its intended role as a shield from discovery and trial" in this sample and cites earlier work that law enforcement defendants are almost always indemnified (paid for) by their employers. She notes limits: five districts, two years, no state court cases, and no way to measure deterred filings or settlements. (Yale Law Journal; opened, last 14,000 characters not read)
Aaron Nielson and Christopher Walker, "A Qualified Defense of Qualified Immunity," 93 Notre Dame Law Review 1853 (2018), respond. They say the sample is limited, that settlements and deterred suits are not captured, and that qualified immunity "mattered" in about 30% of cases in circuit court data they examine (circuit courts denied it on clearly established grounds in 28% of claims and did not reach the constitutional question in 27%). They also say policy objections belong to Congress. (Notre Dame Law Review PDF; opened, as summarized by our fetch tool)
Reuters, 2020: In 529 published federal appeals opinions from 2005 to 2019 in excessive force cases where officers raised the defense, courts granted immunity in 44% of cases in the first three years and 57% in the last three. Reuters also counted 121 Supreme Court petitions on the issue from 2005 to 2018 and found the Court was 3.5 times as likely to grant review when the officer filed. A separate Reuters analysis of 252 appeals opinions from 2015 to 2019 found immunity granted in 57%, and about three dozen cases where a court found a violation yet granted immunity. (SCOTUSblog, Ask the author; Reason summary; both opened. We did not open the Reuters pages themselves.)

Changes by legislatures

Colorado: SB 20-217 was signed June 19, 2020. It creates a state-law civil action against peace officers for violating the state bill of rights and says "Qualified immunity is not a defense to the civil action." Local governments must indemnify the officer, except that if the employer finds the officer did not act on a good faith and reasonable belief the act was lawful, the officer pays 5 percent of the judgment or $25,000, whichever is less. (Colorado General Assembly bill page; opened, summary only; the bill text was not opened)
New Mexico: House Bill 4, the New Mexico Civil Rights Act, was signed in April 2021 (Reason's article is dated April 7, 2021 and does not state the date). It bars qualified immunity as a defense in state court civil rights claims and puts costs on the government, not the individual. Every Republican in the state House and five Democrats voted against it. (Reason; opened)
Congress: the Ending Qualified Immunity Act (119th Congress, Senate version introduced by Mr. Markey) would add a subsection to 42 U.S.C. 1983 that bars defenses based on a defendant's good faith, belief the conduct was lawful, or that rights were not "clearly established." We did not confirm any floor vote or enactment. (Bill text PDF hosted by Rep. Pressley; opened)

Disputed or differing figures

| Item | Figure A | Figure B | Notes | |---|---|---| | Share of cases where immunity is granted | 3.2% of all cases (38 dismissals, 3.9% of cases where it could be raised), district courts, 2011 to 2012 (Schwartz) | 44% to 57% of excessive force appeals, 2005 to 2019 (Reuters) | Different courts, stages, years and case types, so not a contradiction. Appeals cases are the ones that reach appeal. | | How much it "mattered" | "rarely served its intended role" (Schwartz) | "mattered" in about 30% of circuit cases (Nielson and Walker) | Different data sets and different definitions of "mattered" | | Reuters appeals sample | 529 opinions, 2005 to 2019 | 252 opinions, 2015 to 2019 | Both reported by Reuters; the second is a subset period |

What this case shows

A rule written by judges, applied one case at a time, is hard for the public to see or vote on. The doctrine is not in the statute. Voters and legislators can change it (Colorado and New Mexico did), but most people learn of it only after a suit ends. (Nielson and Walker; Colorado bill page)
The accountability gap is documented in the case record. Reuters found about three dozen appeals where courts found a violation and still granted immunity. Courts also increasingly skip the first question after Pearson, which leaves fewer written rulings on what the law is. (Reason summary of Reuters; Pearson)
The cost of the rule falls on injured people, and the cost of changing it falls on local budgets. Schwartz reports officers are almost always indemnified, so employers and taxpayers pay. Colorado and New Mexico legislated who pays: the government, with a limited officer share in Colorado. (Yale Law Journal; Colorado bill page; Reason)
The justification for the rule has been questioned with data, and the data are themselves contested. One side says the shield rarely ends cases early; the other says the sample is small and cannot see deterred suits. The public rarely sees the data. (Yale Law Journal; Notre Dame Law Review)
The Court itself has sometimes denied immunity on obvious facts. Hope and Taylor show "clearly established" need not mean a prior case with the same facts, which means outcomes depend on how lower courts apply it. (Cornell LII)

The strongest objections, and our answers

Objection: Officials must act fast under unclear law, and personal liability would chill legitimate work. The Harlow Court cited the "diversion of official energy" and Nielson and Walker cite the risk of chilling officers. Mitigation: We state this as the main reason the doctrine exists. We note that Colorado kept most of the cost on employers, not officers, and that no study we opened measures a change in police conduct after the reforms.
Objection: Schwartz's study is too narrow to count. Five districts, two years, no state courts, and it cannot see deterred suits or settlements. Mitigation: We report those limits from her own article and show the competing 30% figure. We do not say who is right.
Objection: The doctrine is settled law and belongs to Congress. Nielson and Walker rely on precedent and say policy critiques belong to Congress. Mitigation: We include that. The doctrine's critics also argue it has weak legal grounding (Part I of Nielson and Walker responds to scholar William Baude on this point). We did not open Baude's article, so we do not summarize his case.
Objection: State reforms prove nothing yet. Mitigation: Correct. We found no outcome data from Colorado or New Mexico. We list the laws as changes in who can sue and who pays, not as evidence of better or worse policing.
Objection: Reuters and Reason are journalism and advocacy, not research. Mitigation: We use them for counts that can be rechecked and mark them secondary. We did not open the Reuters pages themselves.

Open questions: what would change our minds

Outcome data from Colorado and New Mexico after the laws (filings, settlements, costs to local governments, police behavior). None opened. Unverified.
Whether any federal bill to end qualified immunity passed either house. Not confirmed.
The full Colorado and New Mexico bill texts (we read the Colorado General Assembly summary and a news article).
William Baude, "Is Qualified Immunity Unlawful?" (California Law Review, 2018) was not opened. Our description of it comes from the Notre Dame article.
Other empirical work (for example studies of state court cases or of deterrence) was not opened. A broader data set could change the Schwartz versus Nielson and Walker balance.
The text of Hope v. Pelzer and Taylor v. Riojas was read through a short summary; the full opinions, including Justice Thomas's dissent in Taylor, were not read.
Reuters' own methodology page was not opened.

Sources

Title	Publisher	URL	Supports	Opened?
Harlow v. Fitzgerald, 457 U.S. 800 (1982)	Justia	https://supreme.justia.com/cases/federal/us/457/800/	Test, social costs, date	Yes
Pearson v. Callahan, 555 U.S. 223 (2009)	Justia	https://supreme.justia.com/cases/federal/us/555/223/	Order of questions, "immunity from suit"	Yes
Pierson v. Ray, 386 U.S. 547 (1967)	Justia	https://supreme.justia.com/cases/federal/us/386/547/	Good faith defense	Yes
Hope v. Pelzer, 536 U.S. 730 (2002)	Cornell LII	https://www.law.cornell.edu/supremecourt/text/536/730	Fair warning	Yes
Taylor v. Riojas, No. 19-1261 (2020)	Cornell LII	https://www.law.cornell.edu/supremecourt/text/19-1261	Per curiam vacatur	Yes
How Qualified Immunity Fails (J. Schwartz, 2017)	Yale Law Journal	https://www.yalelawjournal.org/article/how-qualified-immunity-fails	District court data	Yes, mostly
A Qualified Defense of Qualified Immunity (Nielson and Walker, 2018)	Notre Dame Law Review	https://ndlawreview.org/wp-content/uploads/2025/07/A-Qualified-Defense-of-Qualified-Immunity.pdf	Defense of the doctrine	Yes
Ask the author: Reuters on qualified immunity	SCOTUSblog	https://www.scotusblog.com/2020/05/ask-the-author-reuters-on-the-consequences-of-qualified-immunity-for-police-officers	529 opinions, 121 petitions	Yes
Courts grant qualified immunity... (May 8, 2020)	Reason	https://reason.com/2020/05/08/courts-grant-qualified-immunity-to-cops-in-more-than-half-of-cases-when-invoked/	252 opinions, 57%	Yes
SB 20-217	Colorado General Assembly	https://leg.colorado.gov/bills/sb20-217	Colorado law	Yes, summary page
New Mexico abolishes qualified immunity (Apr. 7, 2021)	Reason	https://reason.com/2021/04/07/new-mexico-abolishes-qualified-immunity-police-government-officials/	New Mexico law	Yes
Ending Qualified Immunity Act (119th Congress)	Rep. Pressley (hosted PDF)	https://pressley.house.gov/wp-content/uploads/2025/05/05.14.2025-Ending-Qualified-Immunity-Act-bill-text.pdf	Federal proposal	Yes

Evidence status and correction history

Key claims

Claim	Status	Source
Harlow v. Fitzgerald decided June 24, 1982; "clearly established" test	Verified (primary source opened)	Justia, 457 U.S. 800
Pierson v. Ray decided April 11, 1967; good faith defense applies in Section 1983	Verified (primary source opened)	Justia, 386 U.S. 547
Pearson v. Callahan decided Jan. 21, 2009; order of questions not mandatory	Verified (primary source opened)	Justia, 555 U.S. 223
Hope v. Pelzer decided June 27, 2002; hitching post about seven hours; no "materially similar" case needed	Verified (primary source opened)	Cornell LII
Taylor v. Riojas decided Nov. 2, 2020, per curiam	Verified (primary source opened)	Cornell LII
Schwartz: 1,183 cases, five districts, 2011 to 2012	Verified (primary source opened)	Yale Law Journal
Schwartz: 38 dismissals, 3.9% of 979; 3.2% of all; 17.3% could not raise it	Verified (primary source opened)	Yale Law Journal
Law enforcement defendants almost always indemnified	Verified (secondary only)	Schwartz article citing earlier work; Nielson and Walker. No percentage opened
Nielson and Walker: circuit courts denied immunity on clearly established grounds in 28%, did not reach question in 27%	Verified (secondary only)	Notre Dame PDF via fetch summary
Reuters: 529 opinions, 44% rising to 57%	Verified (secondary only)	SCOTUSblog
Reuters: 252 opinions 2015 to 2019, 57%	Verified (secondary only)	Reason
Reuters: 121 petitions, Court 3.5 times more likely to grant officer petitions	Verified (secondary only)	SCOTUSblog
Colorado SB 20-217 signed June 19, 2020; 5 percent or $25,000 officer share	Verified (primary source opened)	Colorado General Assembly bill page (summary)
New Mexico HB 4 signed April 2021; bars the defense in state court	Verified (secondary only)	Reason. Exact signing date not stated
Ending Qualified Immunity Act would bar good-faith and "clearly established" defenses	Verified (primary source opened)	Bill text PDF
Any federal bill ending qualified immunity has become law	Unverified (not confirmed)	None found
Qualified immunity changes police behavior or crime rates, in either direction	Unverified (not confirmed)	No study opened

Correction history

Date	Change	Reason
2026-10-25	First publication	New case
2026-10-25	No outside research file existed for this case; no outside claims to correct	Case built from primary sources

Found an error or a better source? We keep every correction on the record with its date and reason. Nothing here is quietly rewritten.

3. Sources and their details

One entry per source in the page's Sources table. "Checked" is the date the page says its sources were checked. A Wayback link and SHA-256 appear only where a snapshot has been recorded.

1. Harlow v. Fitzgerald, 457 U.S. 800 (1982)

Publisher: Justia
Date: 1982
URL: https://supreme.justia.com/cases/federal/us/457/800/
Supports: Test, social costs, date
Opened by us: Yes
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

2. Pearson v. Callahan, 555 U.S. 223 (2009)

Publisher: Justia
Date: 2009
URL: https://supreme.justia.com/cases/federal/us/555/223/
Supports: Order of questions, "immunity from suit"
Opened by us: Yes
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

3. Pierson v. Ray, 386 U.S. 547 (1967)

Publisher: Justia
Date: 1967
URL: https://supreme.justia.com/cases/federal/us/386/547/
Supports: Good faith defense
Opened by us: Yes
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

4. Hope v. Pelzer, 536 U.S. 730 (2002)

Publisher: Cornell LII
Date: 2002
URL: https://www.law.cornell.edu/supremecourt/text/536/730
Supports: Fair warning
Opened by us: Yes
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

5. Taylor v. Riojas, No. 19-1261 (2020)

Publisher: Cornell LII
Date: 2020
URL: https://www.law.cornell.edu/supremecourt/text/19-1261
Supports: Per curiam vacatur
Opened by us: Yes
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

6. How Qualified Immunity Fails (J. Schwartz, 2017)

Publisher: Yale Law Journal
Date: 2017
URL: https://www.yalelawjournal.org/article/how-qualified-immunity-fails
Supports: District court data
Opened by us: Yes, mostly
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

7. A Qualified Defense of Qualified Immunity (Nielson and Walker, 2018)

Publisher: Notre Dame Law Review
Date: 2018
URL: https://ndlawreview.org/wp-content/uploads/2025/07/A-Qualified-Defense-of-Qualified-Immunity.pdf
Supports: Defense of the doctrine
Opened by us: Yes
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

8. Ask the author: Reuters on qualified immunity

Publisher: SCOTUSblog
Date: not stated in the title; see the source
URL: https://www.scotusblog.com/2020/05/ask-the-author-reuters-on-the-consequences-of-qualified-immunity-for-police-officers
Supports: 529 opinions, 121 petitions
Opened by us: Yes
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

9. Courts grant qualified immunity... (May 8, 2020)

Publisher: Reason
Date: 2020
URL: https://reason.com/2020/05/08/courts-grant-qualified-immunity-to-cops-in-more-than-half-of-cases-when-invoked/
Supports: 252 opinions, 57%
Opened by us: Yes
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

10. SB 20-217

Publisher: Colorado General Assembly
Date: not stated in the title; see the source
URL: https://leg.colorado.gov/bills/sb20-217
Supports: Colorado law
Opened by us: Yes, summary page
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

11. New Mexico abolishes qualified immunity (Apr. 7, 2021)

Publisher: Reason
Date: 2021
URL: https://reason.com/2021/04/07/new-mexico-abolishes-qualified-immunity-police-government-officials/
Supports: New Mexico law
Opened by us: Yes
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

12. Ending Qualified Immunity Act (119th Congress)

Publisher: Rep. Pressley (hosted PDF)
Date: not stated in the title; see the source
URL: https://pressley.house.gov/wp-content/uploads/2025/05/05.14.2025-Ending-Qualified-Immunity-Act-bill-text.pdf
Supports: Federal proposal
Opened by us: Yes
Checked: 2026-10-25
Snapshot: No snapshot or SHA-256 recorded in this packet yet.

4. Every link used in the article

Review history
https://michiinstitute.com/members/reviews.html?case=qualified-immunity
Nielson and Walker, 2018
https://ndlawreview.org/wp-content/uploads/2025/07/A-Qualified-Defense-of-Qualified-Immunity.pdf
Justice, Harlow v. Fitzgerald, 457 U.S. 800
https://supreme.justia.com/cases/federal/us/457/800/
Justice, Pearson v. Callahan, 555 U.S. 223
https://supreme.justia.com/cases/federal/us/555/223/
Cornell LII, 536 U.S. 730
https://www.law.cornell.edu/supremecourt/text/536/730
Justice, Pierson v. Ray
https://supreme.justia.com/cases/federal/us/386/547/
Cornell LII, Taylor
https://www.law.cornell.edu/supremecourt/text/19-1261
Yale Law Journal
https://www.yalelawjournal.org/article/how-qualified-immunity-fails
SCOTUSblog, Ask the author
https://www.scotusblog.com/2020/05/ask-the-author-reuters-on-the-consequences-of-qualified-immunity-for-police-officers
Reason summary
https://reason.com/2020/05/08/courts-grant-qualified-immunity-to-cops-in-more-than-half-of-cases-when-invoked/
Colorado General Assembly bill page
https://leg.colorado.gov/bills/sb20-217
Reason
https://reason.com/2021/04/07/new-mexico-abolishes-qualified-immunity-police-government-officials/
Bill text PDF hosted by Rep. Pressley
https://pressley.house.gov/wp-content/uploads/2025/05/05.14.2025-Ending-Qualified-Immunity-Act-bill-text.pdf

5. Revision history

First published (earliest change on record): 2026-10-25.

Corrections on the page

Date	Change	Reason
2026-10-25	First publication	New case
2026-10-25	No outside research file existed for this case; no outside claims to correct	Case built from primary sources

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6. How to cite

The Way (Michi Institute). "Qualified immunity (United States, 1967 to 2025)." Case 53, The Observatory. Sources checked 2026-10-25. Packet built 2026-10-28. https://michiinstitute.com/cases/qualified-immunity.html

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