By that same theory, if Congress was unhappy with qualified immunity doctrine, couldn’t Congress overturn it? If so, I’m not sure why you say Congress is responsible for one area of judge-made law (because it has not overturned those precedents) but not another.

As for whether it is frustrating and unsettling as to how these doctrines developed, I am not sure: I suppose it depends on what alternative paths of development you have in mind.

Although the Court certainly could have created 1983-like claims on constitutional grounds (and really might have had Congress amended 1983 in response to Monroe v. Pape), that’s not what actually happened. What happened was a broader reinterpretation of an existing statute, then the addition of surplusage of qualified immunity to take some of the wind out of the statute’s sails and to slow appellate review and organic development of the law.

In retort, you could point out that qualified immunity might itself have a constitutional basis. But I think that goes to Gerard’s ultimate point: it’s frustrating and unsettling how these doctrines developed.

But shouldn’t that rule go both ways, or do you see it okay for the Supreme Court to expand liability but not constrict it? As I recall my federal courts class, the Supreme Court essentially invented Section 1983 liability in 1961, in Monroe v. Pape, when it quite dramatically reconstrued the century-old statute. The same Court then created a federal cause of action for federal officias in Bivens a few years later by inventing the cause of action without a statute. So it was the courts that created the theories of liability in the first place, and then the courts that (in the midst of this) narrowed their own creations through qualified immunity. (Although I vaguely recall that qualified immunity is older, maybe 1920s or so, I beleve it took on its modern form later.)

In most fields, once the courts recognizes a new claim or type of claim, they leave it up to the legislature to create new immunities thereto. Congress chose not to amend, say, 42 USC 1983 in the wake of Tennessee v. Garner (or any other case) to create QI. What basis did the courts have doing such amendment themselves?

Well, I agree with your explanation of why qualified immunity looks the way it does. At the Founding, though, government officials had far less immunity for their alleged wrongs than is true today. Granted, there were fewer things that you could sue those government officials for, but I’m not sure that justifies the recent limitations. I’m also not clear the current qualified immunity doctrine is consistent with the intent of the authors of Sec. 1983 or the other remedial statutes passed during Reconstruction.

What past did you have in mind, Gerard? My sense is that the qualified immunity doctrines are largely a response to the mid-20th century expansion in tort liability for government actors. The law began to recognize that tort liability, and then QI quickly followed. But there wasn’t much time when there was liability but no QI. For example, in the Fourth Amendment setting, the great majority of civil tort cases are excessive force claims. But there was no Fourth Amendment excessive force doctrine until Tennessee v. Garner, 471 U.S. 1 (1985).
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