In light of the recent attention to police abuses, a lot of people have been asking questions about the doctrine of qualified immunity, which shields most police officers from being sued unless they are “plainly incompetent” or “knowingly violate the law.” There’s much more to say about the doctrine than can be said here, but I wanted to put three quick points here.

Where can I learn about qualified immunity?

I have an article published in 2018, Is Qualified Immunity Unlawful?. Joanna Schwartz at UCLA has done a ton of work on the doctrine, much of which is usefully synthesized in her article The Case Against Qualified Immunity. But if you don’t have time to read a whole article, these FAQs published by the Cato Institute are quite informative and yet easy to follow.

Can the Supreme Court modify the doctrine of qualified immunity?

Yes! The Supreme Court has some pending cert petitions now asking it to revisit the doctrine in various respects, including in Baxter v. Bracey, Zadeh v. Robinson, Corbitt v. Vickers, West v. Winfield, and probably a few others I’m forgetting. It has put these cases on the calendar for many consecutive conferences, and is currently scheduled to consider them again tomorrow. We could find out on Friday whether the Court will hear those cases, but it also may relist them yet again.

Can Congress modify the doctrine of qualified immunity?

Yes! Qualified immunity is an interpretation of the statute codified at 42 U.S.C. 1983, so Congress simply needs to amend the statute. How to amend the statute is slightly tricky, because qualified immunity is not mentioned at all, so it’s not as simple as taking out the qualified immunity clause. There is no qualified immunity clause.

But all Congress would need to do to eliminate the statute is add a sentence to the statute, like so:

This section shall apply to a deprivation of rights, privileges, or immunities secured by the Constitution and laws without regard to whether—

(1) the defendant mistakenly believed that his conduct was lawful; or

(2) the rights, privileges, or immunities were previously recognized or established by judicial decision.

(Of course, along similar lines, you can also imagine how Congress could modify the doctrine without overruling it.)

Now of course there is an irony here, that the Court might think it should wait for Congress to decide what to do, and Congress might think it should wait for the Court to decide what to do, so maybe nobody will do anything. But both routes are possible.