Questioning the U.S. Supreme Court's Legalistic Qualified Immunity Approach and Suggestions for a Better Approach

Abstract

In the May 2014 decision of Plumhoff v. Rickard, the U.S. Supreme Court squarely endorsed its prior decision in Brosseau v. Haugen, which epitomizes the more legalistic line of the Court’s qualified immunity jurisprudence. Under the Brosseau-Plumhoff approach, federal judges are instructed to consider the liability of individual § 1983 defendants based upon whether or not the defendant’s alleged conduct had previously been held to be unlawful by federal appellate court precedent. This article makes the case that the Brosseau-Plumhoff standard is not equal to the task of evaluating the liability of individual § 1983 defendants, many of whom are low-level state and local governmental officers who almost certainly do not read federal appellate court decisions. As such, the Brosseau-Plumhoff approach moves the qualified immunity analysis away from factors which are actually relevant to officers on the job and into a legalistic after-the-fact debate among lawyers and judges which provides a poor basis for determining the financial liability of individual defendants.