Qualified Immunity

Qualified immunity is a kind of immunity given to state actors when they act reasonably in their official capacity. It protects government agents from lawsuits alleging that they have violated someone’s rights, such as their civil rights, so long as the government agent acted reasonably, and any alleged right violated was not clearly established at the time of the alleged violation. This means that qualified immunity may be granted even if what the actor did was actually illegal, so long as its illegality was not clearly established at the time that they acted. For instance, the Supreme Court in 2009 held that even though a strip search of a 13-year-old at school violated the student’s Fourth Amendment rights, it was not clearly established under the law, and therefore qualified immunity was appropriate.

What does “clearly established” mean? A right is clearly established when, at the time of the alleged violation, any reasonable government official would have known that such an action violated such a right. A government official’s subjective beliefs about whether their actions violated a person’s rights are irrelevant.

Who Can Assert Qualified Immunity?

Qualified immunity only applies to individual government officials, rather than the government itself. The defense of qualified immunity often arises in the case of police officers, but other types of government actors are covered as well, such as executive branch officials.

How Qualified Immunity Has Evolved

In the 1982 case of Harlow v. Fitzgerald, the Supreme Court found that presidential aides and other government officials performing discretionary functions are entitled to qualified immunity. It held that certain government officials performing discretionary functions may be protected by qualified immunity from civil damages if their actions have not violated a clearly established statutory or constitutional right that a reasonable person would have known.

Shortly thereafter, the Supreme Court held that police officers specifically can be protected by qualified immunity. (Anderson v. Creighton, the following year, supported qualified immunity in the context of a warrantless search conducted by an FBI agent.)

In 2001, the Supreme Court established the Saucier test, under which a court must evaluate both whether the facts indicate that a constitutional right was violated and whether the right was clearly established at the time of the alleged violation. The Court also noted the importance of ruling on any qualified immunity issues early in proceedings to avoid the costs of trial, when possible, since immunity means immunity from trial, rather than just immunity from liability.

A right may be clearly established even if there is no previously decided case with “materially similar” facts, as the Supreme Court noted in the 2002 case of Hope v. Pelzer. Officials can be aware that their actions violate established law even if the specific facts of their situation are novel, so long as they have “fair warning.”

The Court reconsidered the Saucier test in 2009. Among other concerns, it noted that starting with the first prong of the test, whether a constitutional right has been violated, sometimes results in a waste of time and resources because qualified immunity may be found based on the second prong regardless. The Court concluded that judges should be allowed to first address the second prong of the test, whether the right was clearly established at the time, if doing so would be more useful in a particular case.

State-Level Qualified Immunity

Although states cannot alter qualified immunity at the federal level, they are free to make laws regarding qualified immunity in the context of state-level rights. For example, Colorado’s Enhance Law Enforcement Integrity Act creates a civil cause of action against law enforcement officers who violate state constitutional rights and expressly eliminates qualified immunity as a defense. However, most states continue to allow government officials to assert qualified immunity as a defense in such lawsuits.

Last reviewed May 2025