Originally uploaded at SSRN.


Qualified immunity protects officers from liability for damages unless they have violated clearly established rights, on the ground that it would be unfair and counterproductive to impose liability without notice of wrongdoing. In recent years, however, the Supreme Court has increasingly applied the doctrine to cases in which it serves little or no legitimate purpose. In Ziglar v. Abbasi, for example, the rights were clearly established but the Court held that the officers were immune due to lack of clarity on other issues in the case. Because holdings like Ziglar undermine the vindication of constitutional rights and the deterrence of violations, critics of immunity have called for its abolition. This article rejects both of these approaches. My thesis is that the availability of qualified immunity should depend on an assessment of costs and benefits, which vary depending on context. A better approach is to retain the basic doctrine but to identify categories of cases in which immunity should be denied, and others in which it should be strengthened.