Public officials are immune from damages liability for constitutional violations if they reasonably could have believed their actions were constitutional under clearly established law. In this regard qualified immunity is quite unusual. In most other legal contexts failure to know the law is virtually never excused. The only other context where notice or knowledge of illegality plays any role is in criminal law, but even mistakes of penal law are rarely excused.
This article uses fair notice in criminal law as a paradigm for analyzing the role of notice in constitutional damages actions. The article first demonstrates how fair notice in the criminal context is a proxy for fault. The criminal law paradigm is then applied to qualified immunity in constitutional damages cases. The animating notion behind the immunity inquiry is that it would be "unfair" to hold officials to rules they could not reasonably have known. The objective clarity of the law acts as a surrogate for the official's subjective state of mind: Thus, if the law governing the official's conduct was clear, immunity is denied because any reasonably conscientious official would have known and obeyed the law. Conversely, an official who engaged in conduct that was neither clearly prohibited nor contained indicia of its own wrongfulness is not blameworthy and immunity will attach. In the latter case, the clarity of the law -- qualified immunity's notice inquiry -- acts as a proxy for fault. The article then demonstrates how the fault-notice connection borrowed from criminal law explains a puzzling feature of constitutional damages law: The Supreme Court has repeatedly stressed the importance of individual, fault-based liability and resisted a move toward respondeat superior liability. However, the ubiquity of indemnification of individual officials by their governmental units means that officials rarely bear the monetary burden of liability. The article proposes that fault-based, individual liability -- which identifies a particular official as a "constitutional wrongdoer" -- serves a moral blaming function that has significant independent value regardless of who ultimately bears the financial responsibility.
Barbara E. Armacost, Qualified Immunity: Ignorance Excused, 51 Vanderbilt Law Review, 583–680 (1998).