Is Qualified Immunity Unlawful?
Abstract
The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless a government official violated “clearly established law,” which usually requires specific precedent on point. This Article argues that the qualified immunity doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.
Members of the Supreme Court have offered three different justifications for imposing this unwritten defense on the text of Section 1983. First, that the doctrine of qualified immunity derives from a common-law “good-faith” defense. Second, that it compensates for an earlier putative mistake in broadening the statute. Third, that it provides “fair warning” to government officials, akin to the rule of lenity.
On closer examination, each of these justifications falls apart for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. Furthermore, even if these things were otherwise, the doctrine of qualified immunity would not be the best response.
The unlawfulness of qualified immunity is of particular importance now. Despite its shoddy foundations, the Supreme Court has been formally and informally reinforcing the doctrine of immunity. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for habeas deference and few other legal doctrines. Rather than doubling down, the Court ought to be beating a retreat.
The Police State is quite happy with how things are going, thankyouverymuch.
What are the odds on SCOTUS or Congress dismantling Qualified Immunity?
/smh
The Supreme Court's Continuing Immunity Crusade
A few thoughts on today's summary reversal in Kisela v. Hughes.
https://pjmedia.com/instapundit/293028/Today's "dog bites man" story from the Supreme Court is a summary reversal in Kisela v. Hughes, the latest reversal of a Ninth Circuit opinion that had denied qualified immunity to a police officer. An Arizona police officer shot a woman who was holding a kitchen knife because he (seemingly mistakenly) believed that she was a threat to her roommate, who was standing about six feet away. In a per curiam opinion, the Supreme Court held that the police officer could not be held liable for the unreasonable use of deadly force, because it was "far from an obvious case" in light of the urgency of the situation and the woman's strange behavior. By my count, this is the fifth such summary reversal in the past four years. (It also means that a list of qualified immunity cases in an article I published in February is already out of date.)
. . .
I have criticized the Court's qualified immunity doctrine at length, but I do understand that one might disagree, especially if one believes in evolving judge-made law (see this draft response from Hillel Levin and Mike Wells) or might think the issue so settled by stare decisis that my critiques are merely academic. Still, it is worth noting that the Court treats qualified immunity not just as ordinary settled law, but as an area of law so important that it is worth deciding a series of factbound cases that would never earn the Court's attention if they involved a different legal issue. Moreover, the Court seems uninterested or unable to find such cases where a lower court wrongly denied relief to a person whose constitutional rights were violated.
I remain unconvinced that this special legal treatment has a good legal basis.
Any arguments against private insurance being able to address this situation, sans qualified immunity?
