Rights Without Remedies & How States Can Fix It
Most people assume that if a government official violates the Constitution, the courts will provide a remedy. The promise feels simple: where there is a right, there is a remedy. For more than fifty years, however, the Supreme Court has built a doctrine that often closes the courthouse doors even when judges agree a right was violated. That doctrine is qualified immunity. It protects officials from civil liability unless the plaintiff can point to an earlier case with facts that are the same in all important respects. If no near-identical precedent exists, the case is dismissed, even when the behavior looks plainly unlawful.
This article explains how qualified immunity came to dominate civil rights cases, why the “clearly established law” requirement is so hard to satisfy, real-world examples that will make you shake your head, and what you can ask your state legislators to do about it.
How we got here: a judicially created shield
Qualified immunity is not in the Constitution and it is not in the text of the federal civil rights statute, 42 U.S.C. § 1983. The Supreme Court created it in Pierson v. Ray (1967), giving officers a “good faith” defense to § 1983 claims. Justia Law In Harlow v. Fitzgerald (1982), the Court replaced “good faith” with an objective rule: officials are immune unless they violated “clearly established” law that a reasonable official would have known, which shifted power from juries to judges and made dismissal before trial much easier. Justia Law
A few years later, Anderson v. Creighton (1987) told courts to define rights “with specificity.” It is not enough to say “excessive force violates the Fourth Amendment.” The plaintiff must show prior cases with very similar facts. Justia Law In Saucier v. Katz (2001), the Court required a two-step sequence: decide first whether the Constitution was violated; then decide whether the law was clearly established. Justia Law In Pearson v. Callahan (2009), the Court made that sequence optional, allowing judges to skip the constitutional question and dispose of cases solely because no precedent on point existed. That choice prevents new precedent from forming and freezes the law in place. Justia Law
In the last decade, a series of per curiam reversals has repeatedly told lower courts to apply qualified immunity more aggressively, often stressing the need for highly specific precedent: White v. Pauly (2017), City of Escondido v. Emmons (2019), and Mullenix v. Luna (2015). Justia LawSupreme Court
There is one bright spot. In Hope v. Pelzer (2002), the Court said some violations are so “obvious” that a prior case with the same facts is unnecessary. Justia Law For years, lower courts rarely used that principle. Then Taylor v. Riojas (2020) revived it, holding that keeping a prisoner for days in cells teeming with feces and raw sewage was “so egregious” that no case on all fours was needed. Even so, the Court emphasized that qualified immunity remains intact. Supreme Court
Why the “clearly established” test fails ordinary people
Qualified immunity often requires plaintiffs to find a case with facts that match their own situation with almost photographic precision. If an earlier case involved a suspect lying down rather than sitting, a dog bite rather than a baton strike, or a yard instead of a porch, courts routinely call the differences meaningful. The result: courts acknowledge a violation, then dismiss the claim because no earlier case had the same details.
Judges across the spectrum have criticized this as circular. Justice Sonia Sotomayor has warned that decisions like Kisela v. Hughes tell officers they may “shoot first and think later,” while the public learns that “palpably unreasonable conduct will go unpunished.” Justia Law Justice Clarence Thomas has called for reexamining the doctrine because it lacks a firm basis in statute or history. And Fifth Circuit Judge Don Willett has written that “to some observers, qualified immunity smacks of unqualified impunity.” Fifth Circuit Court
Real cases, real people: when courts said “yes, but no remedy”
Police steal $225,000, immunity granted. In Jessop v. City of Fresno (9th Cir. 2019), plaintiffs alleged officers stole cash and rare coins during a search. The court said there was no clearly established precedent that “stealing property” during a warrant search violates the Constitution, so the officers were immune. Justia Law
Surrendering man bitten by a police dog. In Baxter v. Bracey (6th Cir. 2018), officers released a K-9 on a burglary suspect who had already surrendered with his hands visible. Because an earlier case involved a suspect lying down rather than sitting, the court granted immunity. The Supreme Court declined to review. American Civil Liberties Union
Ten-year-old shot when an officer fired at a dog. In Corbitt v. Vickers (11th Cir. 2019), a deputy fired at a pet dog and hit a child. The court held there was no clearly established rule forbidding this specific scenario, so immunity applied. Justia Law
Woman shot in her own yard within seconds. In Kisela v. Hughes (2018), the Supreme Court granted immunity to an officer who shot a woman holding a kitchen knife at her side, non-advancing, after arriving and firing within seconds. The dissent warned the ruling rewards “unreasonable” killings. Justia Law
High-speed chase, officer shoots from an overpass. In Mullenix v. Luna (2015), the Court granted immunity after an officer shot and killed a fleeing driver, stressing that no precedent made the unreasonableness “beyond debate.” Justia Law
Per curiam reminders to lower courts. In White v. Pauly and City of Escondido v. Emmons, the Court reversed denials of immunity and admonished that rights must be defined with specificity and that it is not enough to cite general excessive-force principles. Justia Law
The rare exception, and why it proves the rule. In Taylor v. Riojas (2020), the Supreme Court denied immunity because the Eighth Amendment violation was obvious. Commentators noted how unusual that was; the Court left the overall doctrine intact. Supreme Court
These outcomes are not edge cases. They are how the system is designed to operate. When the Supreme Court allows lower courts to skip deciding whether a constitutional right was violated, new precedent never forms, and tomorrow’s victims face the same “no clearly established law” wall. Justia Law
Beyond qualified immunity: shrinking remedies from other angles
Two recent Supreme Court decisions narrow accountability even further. In Vega v. Tekoh (2022), the Court held that a Miranda violation, by itself, does not allow a civil damages claim under § 1983. A coerced statement used at trial may not lead to any civil remedy. Supreme Court In Egbert v. Boule (2022), the Court curtailed lawsuits against federal agents by refusing to extend Bivens remedies, even for excessive force by a Border Patrol agent. For federal officers, there may be no claim at all, regardless of qualified immunity. Supreme Court
When you combine qualified immunity with these limits on causes of action, you get rights that are theoretical rather than enforceable.
Why everyone should care
Qualified immunity affects far more than the handful of cases that reach the news. It shapes incentives. When courts repeatedly say, “Yes, this looks unconstitutional, but there is no case exactly like it,” officials learn the wrong lesson: if they are first to cross a new line, they may face no civil consequence. That distorts training, undermines public trust, and leaves victims without a remedy.
The doctrine also creates deep inequality. Those who can fund lengthy appeals sometimes pry open narrow exceptions, while most people cannot. The law becomes less a shield for the powerless and more a buffer for the powerful.
What states can do: legislative fixes that work now
You do not have to wait for Congress or the Supreme Court. States can create causes of action under their own constitutions and remove qualified immunity as a defense in state court.
Colorado’s SB20-217 created a state civil right of action for violations of the Colorado Constitution, limited qualified immunity defenses in state cases, required body cameras, and changed indemnification rules. Colorado General Assembly
New Mexico’s Civil Rights Act (2021) allows suits in state court for violations of the New Mexico Constitution and prohibits qualified immunity as a defense in those state-law claims. NM Legis
Both laws preserve federal qualified immunity in federal cases, but they give residents a path to accountability at home. Other states can copy and refine these models.
Action step: write your state legislators and ask for a state civil rights statute that:
creates a cause of action for violations of the state constitution;
bars qualified immunity as a defense in those state claims;
ensures reasonable attorney’s fees for prevailing plaintiffs;
sets fair indemnification rules that protect victims and taxpayers while discouraging egregious conduct;
mandates transparent data collection on use of force and civil rights payouts.
Case law you can cite, with the key lesson each one teaches
Pierson v. Ray (1967): the origin of modern qualified immunity. Justia Law
Harlow v. Fitzgerald (1982): “clearly established law” standard, decided by judges at early stages. Justia Law
Anderson v. Creighton (1987): specificity requirement that drives hyper-granular comparisons. Justia Law
Saucier v. Katz (2001): two-step sequence that once forced development of law. Justia Law
Pearson v. Callahan (2009): courts may skip the merits, which prevents new precedent. Justia Law
White v. Pauly (2017), City of Escondido v. Emmons (2019), Mullenix v. Luna (2015): repeated reminders to demand highly specific precedent before denying immunity. Justia Law
Kisela v. Hughes (2018): immunity for a near-instant shooting; dissent warns of “shoot first” incentives. Justia Law
Jessop v. City of Fresno (9th Cir. 2019): alleged police theft during a search, no remedy, because no prior case said “police theft” during a search violates the Constitution. Justia Law
Baxter v. Bracey (6th Cir. 2018): K-9 attack on a surrendering suspect, no remedy, because prior case involved a prone suspect. Supreme Court
Corbitt v. Vickers (11th Cir. 2019): deputy shoots a child while firing at a dog, no remedy, because no case on point. Justia Law
Hope v. Pelzer (2002): the “obviousness” path around exact-match precedent. Justia Law
Taylor v. Riojas (2020): rare Supreme Court use of “obviousness” to deny immunity. Supreme Court
Vega v. Tekoh (2022): a Miranda violation does not create a § 1983 damages claim, which further limits remedies apart from qualified immunity. Supreme Court
Egbert v. Boule (2022): severe limits on suing federal officers at all, even before you get to qualified immunity. Supreme Court
Summary
Qualified immunity turns many constitutional promises into rights without remedies. Courts often agree that conduct looks unconstitutional, then dismiss the case because there is no earlier case with the same facts. When judges are free to skip deciding the constitutional question, the law never evolves, and the next victim faces the same brick wall. Justia Law
You can do something about it. Ask your state legislators to follow the lead of Colorado and New Mexico by creating state-law causes of action and eliminating qualified immunity as a defense in those claims. That step restores the basic bargain: where there is a right, there is a remedy. Colorado General Assembly