The Case Against Qualified Immunity, Part III

Over the past two days, and in a forthcoming article excerpted here, I have argued that qualified immunity doctrine cannot be justified by its supposed common law roots, or its more recent policy justifications. The Supreme Court might alternatively decide to eliminate or limit qualified immunity doctrine because, in Justice Sotomayor’s words, it “renders the protections” of the Constitution “hollow.” Although qualified immunity is the reason few Section 1983 cases against law enforcement are dismissed, the Court’s qualified immunity decisions have nevertheless made it increasingly difficult for plaintiffs to show that defendants have violated clearly established law, and increasingly easy for courts to avoid defining the contours of constitutional rights.
When qualified immunity was first announced by the Supreme Court in 1967, it was described as a good faith defense from liability. For the next fifteen years, defendants seeking immunity were required to show both that their conduct was objectively reasonable

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