38 Pages Posted: 20 Aug 2009 Last revised: 22 Sep 2015
Date Written: August 18, 2009
This Article examines a crucial flaw in qualified immunity doctrine and how it results in overprotection of defendants from liability. When qualified immunity is applied in a Fourth Amendment excessive force case, the defendant, typically a police officer, is protected from liability by two layers of reasonableness. First, qualified immunity absolves an individual government agent from liability under 42 U.S.C. §1983, notwithstanding his violation of a constitutional right, if his actions were “objectively reasonable.” Second, the agent is likewise absolved from liability, under the Fourth Amendment itself, if the amount of force used was “objectively reasonable.” When these two doctrines converge, an almost impenetrable barrier to liability results. While the Supreme Court has repeatedly tried to resolve conflicts inherent in qualified immunity doctrine, most recently in Pearson v. Callahan, the excessive reasonableness in the qualified immunity regime, and the excessive force that is its practical consequence, remain.
Suggested Citation: Suggested Citation