When the U.S. Supreme Court created qualified immunity in 1982, it was making policy, not law. And the policy it was trying to enact through its decision in Harlow v. Fitzgerald was intended to fix what the Court perceived to be a threat—officials being reluctant to do their jobs because of the fear of lawsuits. The Justices acknowledged that they were fundamentally grappling with “two evils.” On the one hand, they would be denying a remedy to victims of unconstitutional conduct. On the other hand, they were worried about deterring government workers from doing the government’s business.
