Indiana Law Journal

Document Type


Publication Date

Fall 2022

Publication Citation

97 Indiana Law Journal 1479 (2022)


Qualified immunity is a judicially created doctrine that shields government officials from personal liability for civil damages. Courts applying the doctrine, which is heavily dependent on the facts of the case, must determine whether the government officials’ conduct violated a clearly established statutory or constitutional right of which a reasonable person would have known. This inquiry is discretionary as judges must determine if the alleged violation was “clearly established,” a term that the Supreme Court has defined in conflicting ways. Moreover, when federal judges conduct the qualified immunity inquiry at the Rule 12(b)(6) motion to dismiss stage, their decision is guided only by their discretionary interpretation of allegations in the complaint. Thus, plaintiffs face two layers of judicial discretion when defendants claim that they are entitled to qualified immunity in a Rule 12(b)(6) motion. This double discretion can lead to inconsistent results, as evidenced by the different approaches taken by circuit court judges in such situations.

This Note addresses the implications of this double discretion by examining the role judicial discretion plays in both (i) Rule 12(b)(6) motions as a result of the modern pleading standard and (ii) during the qualified immunity inquiry when judges define “clearly established.” These examinations show that judges are granted with considerable discretion while determining the sufficiency of a complaint and while conducting a qualified immunity inquiry. This Note then reveals the implications of these discretions overlapping when judges engage in a qualified immunity analysis in the motion to dismiss stage. For example, this Note inspects Hart v. Hillsdale County, 973 F.3d 627 (6th Cir. 2020), a 2-1 Sixth Circuit decision in which the dissenting judge disagreed with the majority’s interpretation of the complaint and definition of “clearly established law.” Finally, this Note proposes four solutions that would either eliminate this double discretion or help lead to more consistent judgments when qualified immunity is invoked in a Rule 12(b)(6) motion.