The Supreme Court has said that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”


I am wondering how the courts define "plain incompetence". Is it up to the judge, or does the qualified incompetence have to meet certain strict criteria in order to be determined to be so by the court? When does qualified immunity fail and allow an official to be prosecuted? Assume that the country is the U.S.

1 Answer 1


The language you quoted is more of a rhetorical embellishment than the actual law.

Qualified immunity used to involve an objective and subjective analysis of the officer's conduct and motives, but that is no longer the case. Evaluating whether an officer is "plainly incompetent" now involves asking whether the officer's conduct violated "clearly established" law.

So if an officer uses force against a suspect, and the suspect brings a Fourth Amendment excessive-force claim against him, the qualified-immunity analysis will ask whether, at the time the force was used, some authoritative court decision said that under the circumstances facing the officer in that interaction, his conduct violated the law.

It's a pretty demanding standard, essentially requiring plaintiffs to identify another case in which basically the exact same thing happened to another plaintiff.

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    The worst part is that it's circular. If no similar case can be found, your case fails. And then since your case failed, no future case can point to yours as an example either. Qualified immunity has become guaranteed immunity.
    – Ryan_L
    Aug 1, 2021 at 22:57
  • Exactly. It's a complete disaster for civil rights.
    – bdb484
    Aug 9, 2021 at 4:30
  • I can see the value of some kind of leeway for officers; they're not constitutional scholars and certainly can't be expected to recall decades of case law during an emergency, but this isn't just leeway, it's impunity.
    – Ryan_L
    Aug 9, 2021 at 5:54

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