In the last few months, we have witnessed a boutade of protests seeking redress for excessive use of force by police against African Americans and other minority groups. Commentators most often ascribe these events to a culture of racism and implicit bias in police departments, but we think there is another insidious culprit – one that may also be responsible for continued tolerance of lawless police behavior in these circumstances.

That culprit—the qualified immunity defense in civil rights litigation—began its life many years ago as a simple legal defense enabling a government actor exercising discretionary judgment, often a police officer, to claim immunity from suit in his or her defense to a claim of a constitutional violation, provided the actor could show good faith and a reasonable belief in the constitutionality of their actions. Over the years, the U.S. Supreme Court has greatly expanded the defense, eliminating the subjective good faith requirement and allowing defendants to assert the defense as a threshold matter at the dismissal stage before discovery. Under the current two-pronged judge-created doctrine, if a defendant can show either that his actions were objectively reasonable negating any constitutional violation and/or the absence of a "clearly established" constitutional right, he is entitled to dismissal of the lawsuit. The issue is decided by the court as a matter of law, which over time has prompted trial courts to permit discovery to resolve factual issues and address the defense at the summary judgment stage. Historically, the federal courts have insisted on a high degree of factual particularity in making the legal finding either that no constitutional violation occurred or, if a constitutional violation may have occurred, that the constitutional right in question was not clearly established. The latter condition is satisfied if there is no case that is factually on all fours with the situation faced by the officer.