QUALIFIED IMMUNITY

 

Qualified Immunity 

Qualified Immunity (Wikipedia article)

  • Pierson v. Ray (1967) - the Supreme Court first justified the need for qualified immunity from civil rights violation lawsuits for law enforcement officers by arguing that "[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being punished with damages if he does."

  • Bivens and 42 USC § 1983 lawsuits (1971)

  • Harlow v. Fitzgerald (1982) – Established the modern test for qualified immunity.

  • Saucier v. Katz (2001)

  • Pearson v. Callahan (2009)

  • Police Brutality - A significant amount of criticism contends that qualified immunity allows police brutality to go unpunished. Legal researchers Amir H. Ali and Emily Clark, for instance, have argued that "qualified immunity permits law enforcement and other government officials to violate people's constitutional rights with virtual impunity". Supreme Court Justice Sonia Sotomayor has noted a "disturbing trend" of siding with police officers using excessive force with qualified immunity, describing it as "sanctioning a 'shoot first, think later' approach to policing". She stated:

“We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force...But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.” 

A 2020 Reuters report concurred with Sotomayor, concluding that "the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police". The report reviewed over 200 cases involving excess force by police since 2007, and found since the 2009 Pearson change from mandatory sequencing to discretionary sequencing, plaintiffs have had a more difficult time moving their case past the qualified immunity stage

Qualified Immunity: Explained
June 19, 2019 | Amir H. Ali & Emily Clark | The Appeal

  • The creation of qualified immunity

  • Why qualified immunity is a problem

  • The dubious justifications for qualified immunity

  • Qualified immunity as judicial policymaking

  • The growing consensus that qualified immunity is wrong

Qualified Immunity
Wex | US Law | Legal Information Institute  | Cornell Law School

How Qualified Immunity Fails 
Joanna C Schwartz - Professor of Law | The Yale Law Journal | Volume 127 | Number 1 | October 2017