It was created out of whole cloth by the Supreme Court in 1967's Pierson v. Ray.
That case was a grim reminder of just how terrible the Supreme Court has always been: 15 Episcopal Priests were taking part in the Freedom Rides in 1961 (racially integrated groups taking public transportation across the South to defacto desegregate what had been defacto segregated, the group was 12 white priests and 3 African-American ones). Two police officers arrested all 15 priests while they were sitting in a restaurant for "breach of the peace." A judge convicted them and sentenced them each to four months in prison. They sued the police officers and the judge for false imprisonment. An all-white Jury found the police officers not liable. The Mississippi state supreme court ruled that the judge couldn't even be sued. A Federal Appeals court found the original law (the breach of the peace law) completely unconstitutional, but that the Judge couldn't be sued for upholding the law as it exists: "Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not." The Supreme Court ruled 8-1 in favor of the Judge and against the Priests, creating the concept of Qualified Immunity.
Starting with the mid-aughts conservative turn of the Supreme Court (basically the time that O'Connor is replaced by Alito) it has grown to cover pretty much every act that law enforcement takes, with the modern standard being, basically, "your circuit needs to have found this particular violation to be unconstitutional already for it to count." The recent Supreme Court case finding that President's are immune to prosecution for "Official Acts" has a similar philosophical (though not legal) basis.
Do you honestly think, as a principled position, that police officers should be personally liable for enforcing a law which is later decided to be unconstitutional?
For example, if a police officer in 1994 arrested someone for violating the Gun Free School Zones act (struck down as unconstitutional in 1995), should they be personally liable for the damages? Should the judge who decided the case?
Similarly, if a police officer in NYC arrested someone in 2018 for violating the ban on "gravity knives" (struck down as unconstitutional in 2019), should they be personally liable?
If a police officer in Washington, DC arrested someone for violating the city's ban on handguns in 2007 (struck down by the Supreme Court in 2008), should they be personally liable?
Would it be a good thing if police officers and officials refuse to enforce Washington state's ban on "assault weapons", or Oregon's magazine capacity limit, because the "conservative turn" of the Supreme Court means that the law might get struck down as unconstitutional, and then they'd be personally liable for the damages?
I think it's clear that QI sometimes leads to bad outcomes, but honestly, I'm not sure how the system would function without some similar concept.
I think that letting it go to a jury is reasonable. QI short-circuits the entire jury process, ending the case almost immediately. Letting a lawsuit develop and letting a jury decide if the Officers actions were reasonable or not, given the totality of the circumstances, seems the correct solution to the problem, which as you note is somewhat tricky. After all, the officers who arrested the original 15 Episcopal Priests were found not liable by a jury of their peers. If it worked for them, why do you think it wouldn't work now?
Yes, police officers will have to deal with more lawsuits, but that's not an outcome that bothers me particularly. Society grants them a great deal of rights to violence that the rest of us do not have, they should likewise face greater scrutiny for their choices, or they are not worthy of holding that responsibility.
Note that Colorado removed QI by law, and made officers personally liable (up to certain limits) and seems to not be any sort of anarchy.
Letting it get to a jury opens them up to a flood of baseless lawsuits. People seeking to get go-away money. There needs to be a high fence and it needs to be determined by forces other than the person bringing the lawsuit.
You can easily come up with opposite scenarios: if the law says you go to jail for being a certain race and sitting in a certain place, or for being certain sex and wearing certain clothes, should police officers suffer no consequences for enforcing such things? We've long established that "just following orders" is not a sufficient excuse.
There are cases where it's reasonable for a police officer to enforce a law that turns out to be unconstitutional and there are cases where it's not. Distinguishing between those cases is what the courts are for. Giving officers blanket immunity is not the way to handle it.
Every time I'm out and about, I have to wonder if I'm making some mistake that's going to get me in trouble with the law. Why should police be exempt from this?
often legal by their countries law hence the excuse "i was just following orders/my laws" being similar to cops "following the law" even in the clear face of it being wrong
The same way it does everything, by letting it go to a court and have them figure it out, like every one crime or civil action - why would the cops be different if they are doing illegal things?
This is not a sliding slope, its just acknowledging police are also just people.
It's worth noting that 3 of the 4 examples above deal with guns. The 4th deals with knives. ... Thank God we spend so much time and energy arguing about weapons, guided by a document that was written over 200 years ago. It would be a nightmare if, as a society, we spent that energy on something like curing disease or providing for the needy. Sheesh. /s
Starting with the mid-aughts conservative turn of the Supreme Court (basically the time that O'Connor is replaced by Alito) it has grown to cover pretty much every act that law enforcement takes, with the modern standard being, basically, "your circuit needs to have found this particular violation to be unconstitutional already for it to count." The recent Supreme Court case finding that President's are immune to prosecution for "Official Acts" has a similar philosophical (though not legal) basis.