Qualified and Civic Immunity in Section 1983 Actions: What Do Justice and Efficiency Require

Abstract

This article begins with a brief introduction of the idea of qualified immunity in §1983 actions and of the purposes of that immunity. We then explore some illustrative complexities and uncertainties posed by qualified immunity. In particular, we will consider some questions of burden of proof, appealability, the role of balancing tests, the breadth or narrowness of the rules of substantive law deemed relevant to qualified immunity decisions, the breadth or narrowness of the range of jurisdictional sources of law deemed relevant to qualified immunity decisions, the role of time lags and other issues involved in a potential defendant's learning of relevant rights, the role of a defendant's understandable ignorance of the law as an excuse, and the common tendency for qualified immunity law to actually retard the progress and development of underlying substantive federal rights. From there, we shall conclude by placing the reform of qualified immunity law in the broader context of governmental liability. Ultimately, we shall argue, on grounds of efficiency and fairness, for abolishing qualified immunity for individual government actor defendants. At the same time, however, we shall argue for requiring all actions to be brought not against individual government employees, but against the employing government itself, on the basis of vicarious liability for employee acts committed under color of state law.