LC-18 · State power
Qualified immunity
The right has to be already spelled out
In ordinary words
A person can sue an officer for a constitutional violation and still lose, because no prior case with nearly the same facts clearly established the right.
Why people call it a crime
People hear that an officer broke the Constitution and still cannot be sued, and they call that a license. It is a judge-made defense.
A scene, not a hypothetical statute
A court agrees the stop was unconstitutional. It also says no earlier opinion involved this exact kind of stop. The case is dismissed without a trial. That is the doctrine working as designed.
In legal terms
42 U.S.C. § 1983 creates the cause of action. Qualified immunity is not in that statute. The Court built it in Pierson v. Ray (1967) and Harlow v. Fitzgerald (1982), and tightened it in cases such as Pearson v. Callahan (2009) and Mullenix v. Luna (2015): the right must be clearly established at a specific level of factual similarity. Cities can still be sued under Monell v. Department of Social Services (1978) for a policy or custom, a harder claim.
The Court says officials need notice before personal liability, so they are not chilled from doing the job. Congress has not amended § 1983 to remove the defense.
42 U.S.C. § 1983; Harlow v. Fitzgerald, 457 U.S. 800 (1982); Pearson v. Callahan, 555 U.S. 223 (2009).
Where it stops being legal
Immunity does not apply when the violated right was clearly established, and it does not block criminal prosecution of an officer. It is not a defense to a Monell claim against a municipality in the same way.