The Neuroscience of Qualified Immunity

Gary Gildin, Penn State Dickinson Law


Qualified immunity not only absolves public officials from accountability for the damages caused when they deprive a citizen of their constitutional rights; by virtue of companion doctrines shielding governmental entities from liability, conferral of immunity leaves the victim to bear the loss. Therefore, it is essential that the contours of immunity be carefully calibrated to align with its intended purposes. The United States Supreme Court has continuously expanded immunity to protect the exercise of discretion where, albeit acting in violation of constitutional norms, the official could have reasonably believed their conduct was constitutional. This Article exposes the implicit assumptions as to the operation of the brain that underpin the evolution of the Court’s immunity jurisprudence. It then explains how the Court’s suppositions are refuted by recent findings in the field of neuroscience and proposes reforms that would harmonize immunity with the true workings of the minds of government officials.