What Is Qualified Immunity? How Courts Decide It in Section 1983 Cases

Short answer: qualified immunity is a defense that individual government officials, including police officers, can raise when they are sued for damages under the federal civil rights statute, 42 U.S.C. section 1983. The rules come from decisions of the United States Supreme Court, not from the text of the statute. This guide sets out, in the Court's own words, where the defense comes from, the two questions courts ask, and what the Court has said about "clearly established" law. It also quotes the comment the Ninth Circuit's jury instructions committee has published on the subject and a decision of the California Supreme Court that applied it.

The statute

42 U.S.C. section 1983 provides that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... 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 ..."

The words "qualified immunity" do not appear in the statute. The defense is described in the decisions below.

Harlow v. Fitzgerald (1982): the standard

The Supreme Court decided Harlow v. Fitzgerald, 457 U.S. 800, on June 24, 1982. The Court wrote:

"We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Mitchell v. Forsyth (1985): immunity from suit

In Mitchell v. Forsyth, 472 U.S. 511, decided June 19, 1985, the Court wrote that the entitlement "is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial."

On appeals, the Court held:

"we hold that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment."

Pearson v. Callahan (2009): the two questions

The Court decided Pearson v. Callahan, 555 U.S. 223, on January 21, 2009. It wrote:

"Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."

The Court described the two-step sequence it had set out in an earlier case, Saucier v. Katz (2001):

"First, a court must decide whether the facts that a plaintiff has alleged ... or shown ... make out a violation of a constitutional right. ... Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct."

On the order of those steps, the Court wrote:

"we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand."

What the Court has said about "clearly established" law

Hope v. Pelzer, 536 U.S. 730 (June 27, 2002). Referring to an earlier opinion, Lanier, the Court wrote that it "makes clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances."

Ashcroft v. al-Kidd, 563 U.S. 731 (May 31, 2011). The Court wrote:

"A Government official's conduct violates clearly established law when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'"

"We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate."

"We have repeatedly told courts—and the Ninth Circuit in particular ...—not to define clearly established law at a high level of generality."

Cities and counties: Owen v. City of Independence (1980)

The Supreme Court decided Owen v. City of Independence, 445 U.S. 622, on April 16, 1980. The Court wrote:

"We hold, therefore, that the municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983."

The rules for suing a city or county under section 1983 are quoted in What Is a Monell Claim? How a City or County Can Be Sued Under Section 1983.

The Ninth Circuit's jury instructions committee

The Ninth Circuit, whose district courts include the federal courts in Los Angeles, publishes a Manual of Model Civil Jury Instructions. Chapter 9 covers section 1983. Its entry 9.41, "Qualified Immunity," contains a comment rather than an instruction. The comment begins:

"The Committee has not formulated any instructions concerning qualified immunity because most issues of qualified immunity are resolved before trial, or the ultimate question of qualified immunity is reserved for the judge to be decided after trial based on the jury's resolution of the disputed facts."

The introduction to Chapter 9 states: "A local governing body defendant, such as a school district or municipality, is not entitled to qualified immunity."

In California's courts: Venegas v. County of Los Angeles (2004)

A section 1983 claim can be filed in state court as well as federal court. The California Supreme Court decided Venegas v. County of Los Angeles, 32 Cal.4th 820, on April 5, 2004. In a case that included section 1983 claims against Los Angeles County sheriff's deputies, the court wrote:

"A rule of qualified immunity shields a public officer from an action for damages under section 1983 unless the officer has violated a 'clearly established' constitutional right."

The court sent that issue back to the Court of Appeal to decide.

Related guides

Section 1983 is one of several laws that can apply after police misconduct in California. The state-law claims that can be brought alongside it are described in What Do the Bane Act, the Ralph Act, and Section 1983 Each Add to a Police Misconduct Case?, and the deadlines in What Are the Deadlines to Sue Police in California? The Six-Month Claim and the Two-Year Federal Clock.

Questions about a specific incident can be sent through the contact form.