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Public Law and Legal Theory


Has qualified immunity finally found its roots? Scott Keller’s Qualified and Absolute Immunity at Common Law shows the breadth and complexity of nineteenth century case law dealing with official immunities. 1 But its most important claim, for today’s purposes, is the claim to find a historical basis for a doctrine of qualified immunity: an immunity from suit given to all government officials (including, but not only, the police) whenever they are sued for violating the Constitution. According to Keller, “the common law definitively accorded at least qualified immunity to all executive officers’ discretionary duties” in 1871, when Congress passed the civil rights statute now codified as 42 U.S.C. §1983. 2 This would be very important if it were true. But it is not.

Let us assume that this body of nineteenth-century common law should be translated to the scope of remedies under a statutory action for violations of the Constitution. 3 Even so, the common law did not recognize the doctrine of qualified immunity. It recognized a doctrine of quasi-judicial immunity, which shielded certain acts from liability for good faith mistakes. Keller does acknowledge that this nineteenth century doctrine has important differences from today’s doctrine. 4 But the differences run deeper than you would know from Keller’s account.

A closer examination of the doctrine of quasi-judicial immunity shows just how distant it was from the modern doctrine of qualified immunity. It protected quasi-judicial acts like election administration and tax assessment, not ordinary law enforcement decisions. 5 It allowed for harsh liability for officers who exceeded their authority. 6 And the defense was not an immunity from suit. 7 Thus, today’s doctrine of qualified immunity owes more to modern judicial invention than it does to the common law.



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