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> Qualified immunity is the principle that a public official acting in good faith cannot be held personally liable for an action that is later determined to violate the Constitution. No reasonable person, other than a nihilist, could possibly disagree with qualified immunity.

Qualified immunity is the principle that an official cannot be sued for an action that isn't clearly shown to be unconstitutional. It shuts down a lawsuit before there is any fact finding as to whether or not the official was reasonably justified in their belief that their actions were constitutional.

Yes, being reasonably justified that actions were constitutional should be a valid defense. But qualified immunity isn't a defense, it's a vehicle to shunt cases out of the system before the question of defense is raised. And we already have a judicial mechanism to decide whether or not someone's actions were reasonable: pick 12 random people and ask them if they thought their actions were reasonable, aka, a jury trial. There's no need for qualified immunity.

That is plainly false, as any yahoo with a PACER account can tell you. It also continues to conflate qualified immunity as a principle (which dates back in some form to 1789 and by that name specifically to 1967) with the presumption established in Harlow in 1982, despite my clear explanation above.

Your point of view (which I admit sounds informed, so please don’t take this the wrong way) seems to be at odds with how qualified immunity is generally discussed. Typically I’ve heard it referred to as an immunity not from damages, but from the lawsuit itself. Law.Cornell.edu seems to agree with me.

Which leaves me a little confused as to what exactly you think is false. That QI is an immunity from suit? Or that there is no fact-finding prior to a QI dismissal?

As an idiot with a PACER account I think I deserve an explanation. If I promise not to argue with you, will you please explain this a little more deeply?

(And yes, I read Harlow although I admit it didn’t make me feel much smarter).

You appear to be conflating a principle with its parameters. It's a category error. It's like being an early 2000s Java programmer and claiming that automatic memory management means freezing program execution at random intervals.

Under Harlow there is a presumption in favor of the official such that these suits are often dismissed at the 12(b)(6) stage. However, that is incidental. It is specific to Harlow. As such, while perhaps a valid criticism of the Harlow QI regime, it is not a valid criticism of QI; just as the valid criticism of coarse stop-the-world mark-and-sweep is nevertheless not a valid criticism of automatic memory management.

It's important to realize that the underlying principle of qualified immunity - that a person is distinct from their office - is centuries old and a fundamental bedrock of American democracy. It's why Marbury sought a writ of mandamus in the first place, rather than wringing money out of Madison. The qualified immunity regime we have now is not historically representative.

As someone who went through the system you are wrong. Sure that might be a few cases ruled in your favor, but in the actual implementation of the rules as applied to those in the system you are incorrect. You are like the insurance company pointing to two cases where they approved treatment saying 'look, we don't deny treatment'.

This is adjacent to my area of expertise. I do not deal with qualified immunity every day, or even every week, but my colleagues 30 feet from me do. I feel pretty confident that I know what I'm talking about.

> Qualified immunity is the principle that a public official acting in good faith cannot be held personally liable for an action that is later determined to violate the Constitution. No reasonable person, other than a nihilist, could possibly disagree with qualified immunity

Actually no, it's perfectly reasonable to disagree with it as you've described. There is no analog for private companies - an employee can incorrectly think they're following the law, and end up being personally liable for actions they undertook in good faith for the company. Private companies get along just fine - in practice its not an impediment to companies accomplishing activities on the border of legality.

I do believe that the focus on qualified immunity is a bit of a red herring though. What really needs to be drastically curtailed is general sovereign immunity. If police arrest someone, bust up their home, hold them for days, etc, and it turns out they're innocent, the appropriate government needs to be held directly liable/responsible for those damages. The government/department can then sort out whether those damages were due to some employees not following written policies, and if so discipline them and subrogate the damages. Right now the damages caused by law enforcement are being left as an externality funded by a perverse reverse-lottery, so predictably the injustices keep growing.

There was a case where it was ruled totally fine to feed inmates rotten food AS LONG AS if they asked they were then given human grade food. Here's the thing, asking comes with huge consequences (such as being put in a cell with notoriously aggressive Bob, then having your cell 'shaken down' for contraband every day and letting Bob know the cell is being targeted because you cause trouble). You should be able to go after a person knowingly serving food not fit for human consumption, but you can't, because precedent of this case now says it's OK (as long as you server human grade food on request which how can I prove they don't) so qualified immunity is to all Food Service Administrators from this precedent.