Qualified immunity
Qualified immunity is the defense that ends more police abuse cases than any other. It shields an officer from damages unless the officer's conduct violated a right that was clearly established at the time, which in practice means a published case on materially similar facts. It is not a defense to the New York City law that covers NYPD officers, and it is under attack in Congress and in New Jersey, but as of September 2026 it stands in federal court, and the Supreme Court strengthened it twice this year. This page explains the rule, the 2026 decisions, and what actually gets past it.
Most police abuse cases that are lost are lost on a motion, not at a trial, and the motion is usually qualified immunity. The doctrine is not in Section 1983. It was built by the Supreme Court, and the Court has been building it in the officer's direction for four decades, most recently in two decisions this year. A person reading this site after an arrest needs to understand it for one reason: the claims that carry no immunity defense, under the City's 2021 law and under state law, are the ones with the short clocks, and the way to protect a case against a defense that may end the federal claim is to serve the notice of claim in the first ninety days. The law page sets this defense beside the others.
The rule
Government officials are shielded from damages liability unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known" (Harlow v. Fitzgerald, 457 U.S. 800 (1982)). The test is objective. It does not ask what this officer believed or intended. It asks whether the law, at the time of the conduct, gave a reasonable officer fair notice that the conduct was unlawful.
That produces two questions in every case. Was a constitutional right violated? And was that right clearly established when the officer acted? For years courts had to answer them in that order. In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court held that courts may take the second question first and, if the right was not clearly established, grant immunity without ever deciding whether the Constitution was violated. That is why a grant of qualified immunity is not a finding that the officer acted lawfully. It is a finding that, whatever the officer did, no precedent had made its unlawfulness clear enough.
What "clearly established" means in practice
The phrase is applied at a specific level. It is not enough that the Fourth Amendment forbids unreasonable force or unreasonable seizures in general; that has been clear since the Amendment was written. The question is whether existing precedent placed the unlawfulness of this conduct, in these circumstances, beyond debate. In District of Columbia v. Wesby, 583 U.S. 48 (2018), officers arrested partygoers in a vacant house. The Court held that they had probable cause on the totality of the circumstances and that, in any event, they were entitled to qualified immunity, because no precedent clearly established that an arrest on those facts was unlawful. In a false arrest case the doctrine is applied as "arguable probable cause": the officer is immune if a reasonable officer could have believed there was probable cause, even if there was not. The false arrest page goes through that version of it.
Where the precedent has to come from
Precedent that clearly establishes a right comes from the Supreme Court and from the federal circuit where the case is heard. New York is in the Second Circuit, New Jersey in the Third, Florida in the Eleventh (28 U.S.C. § 41). The same conduct can be clearly established in one circuit and not another, and the search for the case that decides an immunity motion is a search of that circuit's published decisions.
The 2026 decisions
Zorn v. Linton, March 23, 2026
The case came from Vermont, through the Second Circuit. An officer used a rear wristlock on a sit-in protester who was passively resisting, after warnings. The Second Circuit denied qualified immunity. On March 23, 2026, the Supreme Court reversed in a per curiam decision, 6 to 3, holding that no precedent placed the question "beyond debate," so the officer was entitled to immunity (Zorn v. Linton, No. 25-297, 607 U.S. ___ (2026)). Justices Sotomayor, Kagan and Jackson dissented. The decision matters in New York for two reasons. It reversed the circuit whose precedent governs New York cases, and it did so on facts, a passive protester and a control hold, that come up often. A force claim built on a Second Circuit decision about passive resistance now has to account for Zorn.
Smith v. Scott, April 20, 2026
Four weeks later the Court acted again, without full briefing. It summarily vacated a Ninth Circuit decision that had denied qualified immunity to Las Vegas officers in an in-custody death, and remanded the case to be reconsidered in light of Zorn. Three justices noted their dissent (Smith v. Scott, No. 24-1099 (2026)). A summary vacatur decides nothing about the merits, but sending an in-custody death case back under Zorn signals that the Court expects the circuits to apply the "beyond debate" standard strictly, including in custody cases. Our account of Smith v. Scott is drawn from secondary sources and is marked for re-verification before this site launches.
What Congress has and has not done
No federal qualified immunity reform has been enacted as of September 2026. Three sets of bills sit at the introduction stage in the 119th Congress. S.3625 and H.R.7046, the Qualified Immunity Abolition Act of 2026, would end the defense; S.3625 was introduced on January 13, 2026. H.R.3602 and S.1913, the Ending Qualified Immunity Act, would do the same. In the other direction, S.122 and H.R.503, the Qualified Immunity Act of 2025, would write the defense into statute. None has moved past introduction. We do not predict what will happen to them, and nothing on this site assumes any of them will pass. The changes in the law page will record it if one does.
| Claim | Is qualified immunity a defense? | Authority |
|---|---|---|
| Section 1983, any state | Yes | Harlow v. Fitzgerald, 457 U.S. 800 (1982); Pearson v. Callahan, 555 U.S. 223 (2009) |
| New York City Admin. Code ch. 8 (NYPD only) | No: "not a defense to liability" | N.Y.C. Admin. Code § 8-804 |
| New Jersey Civil Rights Act | Yes, as under Section 1983 | Morillo v. Torres, 222 N.J. 104 (2015) |
| New Jersey Civil Rights Act, if A5120 is enacted | Would be no; not enacted as of September 2026 | N.J. Assembly Bill A5120 (introduced May 18, 2026) |
| Section 1983, if S.3625 / H.R.7046 or H.R.3602 / S.1913 is enacted | Would be no; not enacted | Congress.gov, 119th Congress |
Where the defense does not apply: NYPD officers, under city law
In 2021 New York City created its own civil right of security against unreasonable search and seizure and against excessive force, enforceable against an NYPD employee or special patrolman and against the City as employer (N.Y.C. Admin. Code §§ 8-801 to 8-803). The chapter says in terms: "It is not a defense to liability that a covered individual has qualified immunity or any other substantially equivalent immunity" (§ 8-804). The limitation period is three years (§ 8-806), the same as the federal claim in New York, and the chapter is construed consistently with the Fourth and Fourteenth Amendments and with Article I, sections 6 and 12 of the New York Constitution (§ 8-807).
What that means in a case against NYPD officers is that the same arrest or the same use of force produces two claims, one that can be ended by qualified immunity and one that cannot. The City-law claim does not replace the federal one; the federal claim carries a body of precedent that a law passed in 2021 does not yet have. But it means that a motion that would have ended the case ends only part of it. The city law page goes through the chapter, including its limits: it covers NYPD employees and special patrolmen and no one else.
The claims without an immunity defense have the short clocks
The state-law torts against the City require a notice of claim within 90 days (N.Y. Gen. Mun. Law § 50-e(1)(a)). Whether the City-law claim requires one is a question we do not publish an answer to, because we have not found an appellate decision; we serve the notice within 90 days anyway. A person who waits for the criminal case to end before calling a lawyer keeps the federal claim, with its immunity defense, and often loses the rest. The notice of claim page goes through the rule.
New Jersey
New Jersey's Civil Rights Act gives a state-law claim against a person acting under color of law for the deprivation of substantive due process or equal protection rights under federal law, or of substantive rights under the New Jersey Constitution or laws (N.J.S.A. 10:6-2(c)). It does not remove the defense. In Morillo v. Torres, 222 N.J. 104 (2015), the New Jersey Supreme Court held unanimously that qualified immunity applies to Civil Rights Act claims as it does under Section 1983. One procedural difference matters: in Harris v. City of Newark, 250 N.J. 294 (2022), the court held that there is no automatic interlocutory appeal from a denial of qualified immunity under the Civil Rights Act; a defendant who loses the motion must seek leave to appeal before trial. A bill to change the substantive rule, A5120, was introduced in the Assembly on May 18, 2026, and would provide that qualified immunity and other immunities do not apply to Civil Rights Act claims. It has not been enacted. The New Jersey page has the rest.
What actually defeats the defense
One thing: a published decision, from the Supreme Court or from the circuit where the case is heard, holding that conduct materially similar to this officer's conduct violated the Constitution, decided before the officer acted. Everything else in the brief is argument about how close the facts are. That has three consequences for how a case is built.
First, the facts have to be established before the comparison is made. The immunity motion is decided on the record the parties have built by then, which means the footage, the medical records and the witnesses decide which version of the facts is compared to the precedent. A case with body-worn camera video of an officer striking a handcuffed person is compared to cases about handcuffed people. A case with only the officer's account is compared to whatever the officer says happened. The evidence page is about getting that record in the first week.
Second, the search is for the closest published case, not the strongest general principle. A brief that argues the force was "unreasonable under Graham" has not answered the immunity motion. A brief that cites a Second Circuit decision holding that a specific kind of force against a person who was not resisting was unconstitutional has. After Zorn, the fit has to be tighter than it was in 2025.
Third, the case is built so that the immunity motion cannot end it. The state-law claims against the City, served by notice of claim, and the City-law claim against NYPD officers, where § 8-804 removes the defense, do not depend on the search for a matching precedent. A case with those claims preserved survives a grant of qualified immunity on the federal claim. A case without them may not. The how a case works page shows where the motion falls in the sequence; the discovery page explains what is gathered before it.
If a charge is pending
The immunity question turns on what the officer knew and did in the moment, and your account of that moment is evidence in the criminal case too. If a charge from the same incident is pending, talk to your defense lawyer before describing the arrest to anyone; the criminal case and civil case page explains how the two cases are handled together.
The New York City law of 2021
The local civil right with no immunity defense, the City as employer, the three-year clock, and who it does not cover.
The city law →Excessive force
The Graham factors, deadly force, and how qualified immunity is argued in force cases after the 2026 decisions.
Excessive force →Changes in the law
The decisions and statutes since 2020 that changed these cases, newest first, each linked to the page it affects.
News →Common questions
Does qualified immunity mean the officer did nothing wrong?
No. A court can grant qualified immunity without deciding whether the officer violated the Constitution at all. Since Pearson v. Callahan, courts may decide only whether the right was clearly established, and end the case there. An officer who wins on qualified immunity has been found not liable for damages, not found to have acted lawfully.
Has qualified immunity been abolished anywhere?
For NYPD officers, under New York City law, yes: the City's 2021 civil rights law says that qualified immunity or any substantially equivalent immunity is not a defense to liability under that chapter. In federal court no reform has been enacted as of September 2026, and the bills in Congress are at the introduction stage. In New Jersey the state supreme court held in 2015 that qualified immunity applies to New Jersey Civil Rights Act claims, and a 2026 bill that would change that has not been enacted.
What did the Supreme Court decide in 2026?
In Zorn v. Linton, decided March 23, 2026, the Court reversed the Second Circuit and granted qualified immunity to a Vermont officer who used a rear wristlock on a passively resisting sit-in protester after warnings, because no precedent placed the question beyond debate. In April the Court vacated a Ninth Circuit decision denying immunity to Las Vegas officers in an in-custody death and sent it back to be reconsidered under Zorn. Both decisions make the clearly established requirement harder to meet.
How do you get past it?
With a published decision, from the Supreme Court or the circuit where the case is heard, holding that conduct materially similar to this officer's conduct was unconstitutional, so that a reasonable officer would have known. The closer the facts, the weaker the defense. Where no such case exists, the claim under the City's law, which has no immunity defense, and the state-law claims against the City carry the case.
Tell us what happened.
One conversation with an attorney, in your language. We tell you which claims the facts support, which deadline runs first for the agency involved, what evidence to preserve this week, and whether a pending criminal case changes the timing. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510If a criminal charge is still open, talk to your defense lawyer before you describe the arrest to anyone, including us. English, Russian and Spanish in-house; an interpreter for any other language. Contingency fee, confirmed in writing before we begin.