The New Republic Cites William Baude on the Justifications of the Qualified Immunity Doctrine, and Their Weaknesses

Should Cops Be Immune From Lawsuits?

The doctrine is also under siege from originalists, who argue that the court’s purported historical basis for qualified immunity appears to be groundless. In a 2017 article, University of Chicago law professor William Baude noted that the court typically advances three justifications for the doctrine. “One is that it derives from a common law ‘good faith’ defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides ‘fair warning’ to government officials, akin to the rule of lenity,” he wrote. But Baude found those arguments wanting: “There was no such defense, there was no such mistake, and lenity ought not to apply.”

In the 2017 case Ziglar v. Abbasi, Justice Clarence Thomas wrote a concurring opinion that cited Baude’s work and echoed his concerns. “Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in ‘interpret[ing] the intent of Congress in enacting’ the Act,” he wrote, paraphrasing other cases. “Our qualified immunity precedents instead represent precisely the sort of ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to make.” He suggested that the court should revisit the issue “in an appropriate case.”

Read more at The New Republic