46 Pages Posted: 23 Aug 2010
Date Written: October 20, 2009
A troubling pattern has emerged in a number of recent cases: officials whose conduct is truly abhorrent have been found immune from suit under qualified immunity. The doctrine of qualified immunity, which is meant to shield officials from suit when they are not on notice that their conduct is unlawful, has been stretched to protect officers that strip-search 13-year-old students, handcuff and abandon pretrial detainees in abandoned parking lots, and knowingly incarcerate innocent people. These cases represent a fracture in qualified immunity doctrine: the “clearly established” standard no longer serves the policy goals that underlie the doctrine. And matters will only get worse under Pearson v. Callahan, an opinion rendered this Term.
This Article argues for a new way of evaluating such conduct and applies a new framework to settle a circuit split on qualified immunity. Using new research on moral intuitionism and universal moral grammar, it argues that officers, when committing truly terrible acts, can be presumed to know that what they are doing is wrong and could subject them to suit. Moreover, judges are capable of consistently identifying such acts as truly abominable, despite the fact that the exercise is subjective. The Article argues for a radical departure from the “clearly established” standard, arguing instead that in some rare circumstances where officers commit “abominable acts,” qualified immunity should be waived. Not only will such an exception produce more just outcomes, it will also better serve the goals of the doctrine.
Keywords: Qualified immunity, constitutional litigation, constitutional rights, moral intuitions, clearly established, reprehensible conduct, officer liability
JEL Classification: M52
Suggested Citation: Suggested Citation