“Qualified Immunity” is Unconstitutional
Why “Just Following Orders” Fails in U.S. Courts
by Sondra Wilson. Written August 16, 2025.

“I was just doing my job,” is the most common defense used by officials accused of violating constitutional rights. From police misconduct to unlawful detentions, this phrase echoes through courtrooms and press conferences alike. But in U.S. law, obedience is not a shield. It never has been.

Qualified immunity—a judicial doctrine that protects government officials from liability unless their actions violate “clearly established law”—has become a loophole for impunity. It contradicts not only international human rights standards, but also centuries of U.S. legal precedent. The result is a system where unlawful orders are excused, and justice is denied.

This article traces how American courts rejected the “just following orders” defense long before the Nuremberg Trials and argues that qualified immunity must be dismantled to restore constitutional accountability.

I. How Qualified Immunity Became a Shield for Violators

Qualified immunity was first articulated in Pierson v. Ray (1967), where the Supreme Court held that police officers could not be held liable under 42 U.S.C. § 1983 Civil action for deprivation of rights if they acted in “good faith” and with “probable cause” (Pierson v. Ray, 386 U.S. 547, 1967). The case involved officers arresting Black ministers for attempting to desegregate a bus terminal in Mississippi. Despite the clear violation of civil rights, the Court insulated the officers from liability.

Justice Douglas dissented forcefully, warning, “There is no constitutional doctrine which gives officers immunity when they act in violation of constitutional rights” (Pierson v. Ray, 1967, p. 558, Douglas, J., dissenting).

The doctrine was further entrenched in Harlow v. Fitzgerald (1982), which replaced the subjective good faith standard with the “clearly established law” test. In that case, a whistleblower sued White House officials for retaliation. The Court ruled that unless the unlawfulness of their conduct was “clearly established,” they could not be held liable (Harlow v. Fitzgerald, 457 U.S. 800, 1982).

Justice Brennan, dissenting, warned that this standard would “effectively immunize” officials from accountability and “undermine the deterrent function of civil rights laws” (Harlow v. Fitzgerald, 1982, p. 821, Brennan, J., dissenting).

This precedent-over-principle approach has created a dangerous accountability gap. Victims of state violence and civil rights violations are often left without recourse, while officials operate with near-total immunity.

II. Nuremberg and the Rejection of “Just Following Orders”

Following World War II, the Nuremberg Trials established a foundational principle of international law: obedience does not excuse injustice. Principle IV of the Nuremberg Principles states:

“The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible” (United Nations, 1950, Principle IV).

This principle was used to convict Nazi officials who claimed they were simply following orders. The Tribunal declared:

“The very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state” (International Military Tribunal, 1946, p. 223).

Justice Robert H. Jackson, Chief U.S. Prosecutor at Nuremberg, emphasized:

“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored because the perpetrators carried out the orders of their government” (Jackson, 1945, para. 3).

This was not just a rebuke of fascism—it was a declaration of moral agency. It affirmed that individuals must be held accountable for unlawful conduct, even when acting under authority. It has since become a cornerstone of international human rights law.

III. American Courts Rejected the Excuse Long Before Nuremberg

Contrary to popular belief, the rejection of the superior orders defense is not a foreign import. It is deeply embedded in American legal tradition. Long before Nuremberg, U.S. courts made it clear: constitutional duty trumps obedience.

🛳️ Little v. Barreme (1804)

During the Quasi-War with France, President John Adams issued an executive order authorizing the seizure of ships suspected of trading with the enemy. Captain Little, a naval officer, followed the order and seized a Danish vessel. However, Congress had passed a law that only authorized seizure of ships to France—not from France.

Chief Justice John Marshall ruled that Captain Little was personally liable for the unlawful seizure. The Court held that executive orders cannot override statutory law, and that officers are responsible for knowing the limits of their authority.

“The instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass” (Little v. Barreme, 1804, p. 179).

⚓ United States v. Jones (1813)

During the War of 1812, crew members of a privateer attacked a neutral vessel, claiming they were acting under orders from their commanding officer. The court rejected this defense, holding that unlawful commands do not absolve individual responsibility.

The ruling emphasized that obedience to authority is not a legal shield when the action itself violates established law. As the court stated:

“The orders of a superior can never justify the commission of an illegal act” (United States v. Jones, 1813, p. 576).

Why It Matters: This case reinforces the principle that individuals must exercise legal judgment, even in military or executive contexts. It predates Nuremberg by over a century and affirms that accountability is a foundational American value—not a foreign imposition.

🛒 Mitchell v. Harmony (1851)

During the Mexican-American War, a U.S. Army officer seized a merchant’s goods, claiming military necessity. The merchant, Mitchell, sued for damages, arguing that the seizure was unlawful.

The Supreme Court ruled in favor of Mitchell, holding that military officers are liable for damages when they violate constitutional protections—even during wartime.

Justice Grier wrote:

“It can never be maintained that a military officer can justify himself for doing an unlawful act by producing the order of his superior” (Mitchell v. Harmony, 1851, p. 134).

🏛️ United States v. Lee (1882)

Federal officers seized Arlington House, the estate of Confederate General Robert E. Lee, without due process. The government claimed sovereign immunity, arguing that it could not be sued.

The Supreme Court rejected the government’s claim and ruled that federal officers could be held personally liable for violating constitutional rights.

Justice Miller declared:

“No man in this country is so high that he is above the law” (United States v. Lee, 1882, p. 220).

⚖️ Ex parte Milligan (1866)

Lambdin Milligan, a civilian, was arrested and tried by a military tribunal during the Civil War, despite civilian courts being open. He was sentenced to death.

The Supreme Court ruled that the military tribunal was unconstitutional.

Justice Davis wrote:

“The Constitution of the United States is a law for rulers and people, equally in war and in peace… and no doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government” (Ex parte Milligan, 1866, p. 120).

IV. The Contradiction We Must Confront

Qualified immunity stands in direct contradiction to both the Nuremberg Principles and early American jurisprudence. By allowing officials to escape liability unless their conduct violated “clearly established law,” the doctrine effectively reinstates the superior orders defense under a new guise.

It permits state actors to claim ignorance or reliance on authority as a defense—precisely what Nuremberg and cases like Mitchell and Barreme rejected. This contradiction is not merely academic. It has real-world consequences for victims of state violence, civil rights violations, and systemic abuse. The doctrine undermines the rule of law by prioritizing institutional protection over individual rights, eroding public trust and perpetuating impunity.

Conclusion: The Duty to Disobey

The rejection of the superior orders defense is not a radical idea. It is the bedrock of justice. From Little v. Barreme to Nuremberg, the message is clear: no job is above the Constitution.

Qualified immunity must be reexamined and dismantled. Reform is not just a legal necessity—it’s a moral imperative. Every officer, every official, every citizen must understand: when the law is violated, obedience is no excuse.

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