Taylor Kordsiemon * | 25.3 | Citation: Taylor Kordsiemon, Challenging the Constitutionality of Qualified Immunity, 25 U. Pa. J. Const. L. 576 (2023).

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Qualified immunity is a frequent target of scholarly criticism. Normative critiques typically argue that qualified immunity is an unjust policy that fails to achieve its purported policy objectives, whereas positive critiques seek to undermine the doctrine’s legal foundations largely by demonstrating that the Supreme Court committed any number of historical and interpretive errors when it created qualified immunity. Typically absent from such critiques, however, is any analysis of whether qualified immunity itself is permissible under the Constitution. This Article seeks to fill that gap and demonstrates that qualified immunity is unconstitutional under both Article III and equal protection principles. Qualified immunity violates Article III by forcing federal courts to choose between forsaking their duty to say what the law is or else issuing advisory opinions in the form of unnecessary constitutional rulings. As for equal protection, qualified immunity affords similarly situated plaintiffs with different substantive rights based only on their respective geographic locations, thereby interfering with the fundamental right of equal access to the courts. Notably, although the Supreme Court read qualified immunity into 42 U.S.C. § 1983, it has never squarely addressed the constitutionality of the doctrine. Thus, unlike other criticisms of qualified immunity, lower courts may permissibly accept the constitutional arguments presented herein and sever qualified immunity from Section 1983.

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* Attorney at Manning Curtis Bradshaw & Bednar PLLC in Salt Lake City, Utah.