Qualified Immunity, Legal Narrative, and the Denial of Knowledge

Qualified immunity is a judge-made doctrine that offers immunity to state actors sued for violations of constitutional rights. In recent years, the doctrine has received increased scrutiny for its application to cases claiming police use of excessive force, but the doctrine’s application is broader: qualified immunity can defeat a broad array of constitutional claims. This Article proposes a new ground to question qualified immunity, arguing that the narrative and epistemic effects of qualified immunity provide strong reasons for reconsideration of current doctrine. Using narrative and epistemic lenses, the Article reveals that qualified immunity doctrine systematically disadvantages civil rights plaintiffs and ultimately undermines civil rights law and the commitment to rights enforcement. Current qualified immunity doctrine excludes plaintiffs’ stories and denies their knowledge, diminishing their stature in the law. Further, qualified immunity doctrine deprives courts of the very narratives that develop the law, deepening injustice by rendering a range of civil rights-related experiences essentially unknowable in the law. Qualified immunity thus dangerously slows the growth of the law and widens the distance between people’s lived experience and the law. The Article argues that any effort to recalibrate qualified immunity must consider the narrative and epistemic values at risk, complementing other doctrinal arguments for re-examining qualified immunity and adding to the debate on the doctrine’s future.