Some Objections to Strict Liability for Constitutional Torts

Qualified immunity protects officials from damages forconstitutional violations unless they have violated “clearlyestablished” rights. Local governments enjoy no immunity, butthey may not be sued on a vicarious liability theory forconstitutional violations committed by their employees. Criticsof the current regime would overturn these rules in order tovindicate constitutional rights and deter violations. ThisArticle argues that across-the-board abolition of these limits onliability would be unwise as the costs would outweigh thebenefits.

In some contexts, however, exceptions may be justified.Much of the recent controversy surrounding qualifiedimmunity involves suits in which police officers are sued forexcessive force. The case for qualified immunity is weak in thatcontext. But, in other contexts, the case for qualified immunityis much stronger, making calls for its complete abolitionunwise.