James Pfander recently posted an interesting essay on qualified immunity that will be coming out in Columbia Law Review. His idea is that the Supreme Court should hold that if someone sues a government official for a constitutional tort and seeks nominal damages (in other words, $1), qualified immunity should not apply. His argument is that this will lead to more clarity with respect to constitutional rights while protecting officials from liability for their actions when the law is unclear. I am sympathetic to this approach, as I’ve posted many times about my dissatisfaction with the state of qualified immunity doctrine.
Nevertheless, I’m not sure how effective this reform would be. First, how many plaintiffs will be willing to forego the possibility of a monetary settlement? The answer is not zero, but it may not be enough have an impact. Second, a suit for nominal damages still subjects state officials to burdensome discovery, and the desire to shield them from that is one of the rationales for qualified immunity. Thus, I am not sure that the Court would go in the direction that Pfander suggests. Finally, the lower federal courts have generally rejected the position taken by the Essay, which does create an uphill struggle to get the Supreme Court to adopt the opposite view.