Living a Lie: The Cost of Qualified Immunity

Throughout the modem civil rights era,' a silent struggle has been waged over civil liability for the violation of constitutional rights. The issues struggled with are what kinds of constitutional wrongs should be compensated and out of whose purse the damages should come. The mechanism for resolution of these issues has largely been the application of immunity defenses to civil rights remedies. A system of immunity defenses has been overlaid on the broad remedy provided by 42 U.S.C. § 1983 (hereinafter "Section 1983Y').2 A determination of the scope of the immunity defense-which government officials should get it and how much-has provided the means to resolve, at least temporarily, difficult questions regarding the proper role of civil damage awards in protecting constitutional rights.

The problem with this approach is that using the immunity defense as the language of the debate over the proper limits of civil rights remedies obscures choices that are being made on the fundamental and divisive issue of what constitutional wrongs should be compensated.