“Obvious Injustice” and Qualified Immunity: The Legacy of Hope v. Pelzer


Qualified immunity has captured popular attention in the wake of multiple high-profile killings of civilians by police due to its role in shielding officers and other public officials from legal accountability for constitutional rights violations if the specific conduct at issue has not previously been held unconstitutional. Since creating the doctrine in 1982, the U.S. Supreme Court has substantially expanded its protective power through a string of decisions making the defense increasingly more difficult to overcome. This state of affairs has led many to lose hope in the legal system’s ability to vindicate civil rights violations and has even prompted legislative efforts to abolish the doctrine outright. But a promising doctrinal tool with which to overcome qualified immunity in particularly egregious cases—wherein a grant of immunity poses the greatest injustice—already exists. In Hope v. Pelzer, a unique decision from 2002 that the Court has—until recently—largely ignored but has never overturned, the Court held that official misconduct may, in some cases, be so flagrant that no previous decision need have found it unconstitutional for a court to deny qualified immunity. Although the Court’s subsequent qualified immunity decisions have been the subject of much scholarly attention, Hope’s lasting effect in the lower courts has received little focus. Through a review of 210 qualified immunity decisions, in this Comment I evaluate the enduring impact of the Hope decision in the federal courts of appeals and its varying treatment among the circuits. I conclude that although qualified immunity remains a significant obstacle in civil rights litigation, Hope may yet represent a powerful option for plaintiffs in holding public officials accountable for abuses.

About the Author

Benjamin S. Levine is a Law Clerk at the U.S. District Court for the Eastern District of California and a graduate of the UCLA School of Law, class of 2021.