Qualified Immunity: Time to Change the Message

93 Notre Dame L. Rev. 1887 (2018)

50 Pages Posted: 4 Aug 2018 Last revised: 22 Aug 2018

Karen Blum

Suffolk University Law School

Date Written: June 18, 2018

Abstract

This article examines and criticizes the Supreme Court’s current “love affair” with the doctrine of qualified immunity, a doctrine that has become the “darling” of many of the Justices, a doctrine that is inching closer to an absolute, rather than a qualified, protection from damages liability for public officials who commit constitutional violations. Both judicial and scholarly attacks on the doctrine have appeared with increasing frequency and intensity. The Court’s policy-driven qualified immunity approach has stifled the development of constitutional standards, provided unnecessary protection from liability to officers who are indemnified for their wrongdoing in the overwhelming majority of cases, created a confusing and divisive debate about what constitutes “clearly established law,” and has imposed substantial burdens and costs on the litigation of civil rights claims. This piece takes aim at three recurrent and especially problematic byproducts of the doctrine’s application: First, the doctrine serves to impede the development of constitutional law and prevent the redress of constitutional wrongs. Second, litigating the doctrine results in draining resources of litigants and courts through interlocutory appeals that are frequently without merit and often jurisdictionally suspect. Third, the doctrine breeds confusion into the roles of the judge and the jury in our judicial system, effectively enhancing the judge’s role at the expense of the constitutional right to jury trial. While suggestions are offered for ameliorating the problems described, ultimately the view of the author is that the best way to fix the doctrine is to make it irrelevant. Correcting the Court’s error in Monell and recognizing that respondeat superior was part of the original scheme would be a good first step towards changing the message that has now become one of “unqualified immunity.”

Suggested Citation

Blum, Karen, Qualified Immunity: Time to Change the Message (June 18, 2018). 93 Notre Dame L. Rev. 1887 (2018). Available at SSRN: https://ssrn.com/abstract=3218638

Karen Blum (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
52
rank
356,615
Abstract Views
168
PlumX