Qualified immunity began in 1871 when Congress adopted 42 U.S.C. § 1983, which makes government employees and officials personally liable for money damages if they violate a person’s federal constitutional rights.
State and local police officers may be sued under § 1983. Until the 1960s, few § 1983 lawsuits were successfully brought. In 1967, the Supreme Court recognized it as a defense to § 1983 claims.
In 1982, the Supreme Court adopted the current test for the doctrine making it generally available if the law a government official violated isn’t “clearly established.”
Qualified immunity protects states and local governments from having to pay money damages for actions not yet deemed unconstitutional by a court.
If qualified immunity applies to a situation then money damages are not available even if a constitutional violation has occurred. If it does not apply then the government employee or official is responsible for money damages and the government usually pays.
State by State – Is Qualified Immunity Coming to an End?
States are starting to eliminate qualified immunity. It first started in Colorado and now the Governor Governor Lujan Grisham of New Mexico has signed legislation to end it becoming the second state to do so.
According to a report on the innocenceproject.org site
SANTA FE, NM (April 7, 2021) – Today, New Mexico became the second state in the nation to abolish qualified immunity when Governor Lujan Grisham signed the New Mexico Civil Rights Act into law.
In addition to eliminating qualified immunity, this historic legislation will allow New Mexicans – including the wrongfully convicted – to recover damages from the government when their constitutional rights are violated while also providing incentives for government employees to respect and uphold constitutional rights.
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