There is something weird going on within the doctrine of qualified immunity. The Supreme Court and lower courts routinely claim that officers who “knowingly violate the law” are not entitled to qualified immunity, but then—in almost the same breath—assert that an officer’s knowledge of the law is irrelevant to the qualified immunity analysis. What is even more strange is that these two opposing views can apparently be traced to the foundational case in the field: Harlow v. Fitzgerald.
This Article explores and proposes a resolution to this apparent contradiction. Beginning with Harlow itself, the Article explores the case using the detailed personal papers of Justice Lewis Powell, the author of the majority opinion in Harlow. These papers show that, although Harlow is generally understood to have rejected any inquiry into subjective knowledge, the opinion is far more nuanced and ambiguous than generally appreciated.
After showing that Harlow may not have definitively rejected subjective knowledge, the Article then turns to a normative defense of subjective knowledge. In particular, it argues that relying on subjective knowledge ought to be relevant to qualified immunity determinations because (1) it furthers the underlying purposes of the defense, (2) subjective knowledge already matters in many qualified immunity cases, and (3) subjective knowledge is used in contexts that the Supreme Court deems analogous to qualified immunity.
After presenting this normative case, the Article then explores how plaintiffs might prove subjective knowledge. Addressing an issue that has currently split courts, the Article first explains that actual knowledge may be proven by reference to the content of departmental policies or trainings. Additionally, subjective knowledge may be proven—rather unexpectedly—through an admission of the defendant. While officers may not always admit such knowledge, they are far more likely to do so in cases in which liability is based chiefly on a mistake of fact rather than mistake of law.
