Reconsidering Qualified Immunity

Justice Thomas wrote an important concurring opinion today in Ziglar v. Abbasi. He argues there that the Court should (in an appropriate case) reconsider qualified immunity law by asking whether the decisions in this area should be more closely tied to the common law of official immunity when Section 1983 was enacted in 1871.  This would mean less immunity (overall) than is given now.

I emphatically with the need for reconsideration, and probably with Justice Thomas’s analysis on the merits (though I’d want to think about that some more). At a minimum, this might stimulate further research into Reconstruction-era tort law.

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2 Responses

  1. Joe says:

    “closely tied to the common law of official immunity when Section 1983 was enacted in 1871”

    It’s 2017. Historical reenactment is fun but not a great means of determining basic legal principles.

    • Joe says:

      To be clear, a change in policy might be appropriate.

      But, it is not merely because it would “substitute [the Court’s] own policy preferences for the mandates of Congress” — in Thomas’ words — to try to figure out 1871 rules. A change will be influenced by all that happened since there regardless.

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