Since the Supreme Court created the qualified immunity doctrine, on the basis of common law, it has become a substantial barrier to the efforts of plaintiffs to obtain just outcomes and recover monetary damages from government official defendants. In federal cases, it is very rarely used as a ground for dismissal, but on the local level, the doctrine is almost always invoked to indemnify members of law enforcement. However, the solution to this problem is far simpler than most realize.
Indeed, regardless of the governing legal regime or the makeup of Congress, the doctrine could be rendered irrelevant if state attorneys general and city law departments decline to deploy it as a part of their defense. This is because qualified immunity is not a statutory or constitutional protection. The relevant precedent would be Gomez vs. Toledo, where the Supreme Court determined that it’s an affirmative defense that should only be considered if the defendant parties raise it in litigation.
To be sure, there is some legitimacy for using qualified immunity to limit the liability of government officials from lawsuits that are frivolous or too burdensome. Nonetheless, given the condition of endemic racism, constitutional wrongdoers must be held accountable, the many who are gravely injured deserve a fair compensation for damages, and first-order legal obstacles cannot be allowed to inhibit the development of constitutional law.
In the end, lawyers given the task of defending government actors, who claim the mantle of civil rights, must decide if their commitment is real.