Qualified Immunity Research Articles

Repairing Our System of Constitutional Accountability: Reflections on the 150th Anniversary of Section 1983

Section 1983 is a landmark statute that provides the foundation for holding state and local governments and their agents accountable when they violate constitutional rights. Unfortunately, the Supreme Court’s interpretation of this statute is a glaring exception to the rule that courts should enforce the plain language of Congress’s statutory commands. Rather than enforce the statute’s text and ensure the accountability that its drafters passed it to achieve, the Supreme Court has created four interlocking doctrines that squelch its promise of accountability: qualified immunity, absolute immunity, strict limits on local governmental liability, and the exclusion of states from Section 1983. This Essay, written to mark the 150th anniversary of Section 1983, does a deep dive into the text and history of Section 1983 and recovers a critical part of the story of its enactment that is all too often ignored: Congress made a conscious choice not to provide any official immunities because it did not want to place state officials above the law. Indeed, Congress passed Section 1983 to ensure that governments and their agents could be held accountable in a court of law. By gutting Section 1983 through rank judicial legislation, the Supreme Court has let states and local governments and their agents violate our most cherished constitutional rights with impunity and left those victimized by abuse of power without any remedy.

Reform of Qualified Immunity for Police Officers: A Pathway to Legislative Reform

Qualified immunity for police officers in the United States is a broken legal doctrine that needs Congressional legislative remedy; however, police qualified immunity does not need to be eliminated. It must be reformed. Over the past 4 months of diligent and focused research, analysis, and scrutiny from diversely experienced policing officials, criminal and civil law attorneys, academicians, and community leaders, the Institute for American Police Reform has identified a fair and pragmatic standard for reforming qualified immunity. Although this White Paper discusses reform at the federal level, reform of qualified immunity for police officers should also occur at the state level and indeed, already has in several states. State level reform can include additional levers such as damage caps, indemnification policies, insurance requirements, or fee-shifting.

Policing Suspicion: Qualified Immunity and 'Clearly Established' Standards of Proof

Qualified immunity famously provides “ample protection to all but the plainly incompetent or those who knowingly violate the law.” The doctrine insulates officers who violate constitutional rights from civil liability unless existing caselaw was so “clearly established” that every reasonable officer would have known at the time that the police action in question was unlawful. This demanding inquiry requires a high degree of specificity; a prior case with what legal scholar Joanna Schwartz has called “virtually identical facts.” At the same time, however, courts repeatedly refuse to provide specific definitions of the most important legal thresholds for police action: reasonable suspicion and probable cause. Indeed, the Supreme Court rejected—repeatedly—any attempt to quantify or carefully demarcate the boundaries of the Fourth Amendment standards of proof, except to emphasize that they require no more than a “fair probability” or a “moderate chance” that an officer’s suspicions are correct. As a result, the legal predicates for coercive or invasive police actions like detentions, frisks, searches, and arrests are not only deferential, they are operationalized at a low level of certainty. This Article explores the intersection of Fourth Amendment standards of proof and the “clearly established” prong of qualified immunity. It illustrates how the juxtaposition of the Court’s insistence on a low level of specificity for the development of suspicion and a high degree of specificity for the imposition of liability makes it exceedingly difficult to hold officers accountable for violating constitutional rights. And it offers both a path for future research into the development of suspicion and suggestions for methods that police agencies can use to improve the development and articulation of suspicion. Ultimately, it contends that policing in the 21st century must take seriously the idea that the Constitution is a floor, not a ceiling, and it calls for the development of more rigorous standards for police actions.

Official Immunity at the Founding

It is unclear to me that originalists’ qualified-immunity debate is framed in the correct terms. Or that it is framed in the correct time period. The current debate turns on whether officers enjoyed common-law tort immunities in 1871, when Congress passed the Enforcement Act that today appears in 42 U.S.C. § 1983. I wonder whether the more appropriate question is whether officers enjoyed constitutional immunities in 1791, when the People ratified the Bill of Rights. And I wonder whether historical pleading practices—embraced in English common law and by our first Congresses—mean the answer is “yes.” This Article challenges the premises of the current debate by considering the archetypal qualified-immunity case: a Fourth Amendment plaintiff’s claim against an officer who allegedly executed an “unreasonable” search or seizure. In 1791, the word “unreasonable” meant “against the reason of the common law.” And that common law brought with it a host of immunities for officers charged with searching and seizing. Thus, it is possible that a Fourth Amendment claim at the Founding required plaintiffs to show that an officer’s search or seizure was not only wrongful but so wrongful that the plaintiff could overcome the officer’s common-law immunities. If that is correct, then today’s originalist critics of qualified immunity must broaden their focus and shift their debate.

Police Officers’ Qualified Immunity in Excessive Force Claims, Warrant Execution, and Warrantless Searches and Arrests: Tracing the Evolution of, and Stagnation in, U.S. Supreme Court Precedents

We analyzed all U.S. Supreme Court cases as of June 6, 2020 where private complainants filed either a §1983 action or Bivens action against police officers who claimed the defense of qualified immunity (N = 29). Empirical analysis of qualified immunity claims involving excessive force, unlawful warrant executions, and unlawful warrantless searches and arrests reveal the Court’s growing trend of ruling in favor of police officers. In 10 out of 13 cases involving excessive force claims, three out of five unlawful warrant execution claims, and nine out of 10 unlawful warrantless searches and arrests claims, the Court granted police officers’ qualified immunity. The requirement for private complainants to identify a case where the Court ruled against the officer in similar circumstances makes it extremely difficult to defeat the defense of qualified immunity. The Court should reconsider its standard of proving “clearly established rights,” an element of qualified immunity.

Sanctioning Qualified-Immunity Appeals

Qualified immunity is awful. But it’s not just the substantive defense that is a problem. Qualified immunity also comes with a slew of special appellate procedures that add difficulty, expense, and delay to civil-rights litigation. Defendants have a right to immediately appeal from the denial of immunity. And the federal courts have steadily expanded the scope and availability of those appeals, further ensuring that civil-rights litigation will not be quick or easy. There is one seeming exception to the ever-expanding right to appeal from the denial of qualified immunity: Johnson v. Jones’s limit on the scope of appeals from the denial of immunity at summary judgment. Johnson holds that, with rare and narrow exceptions, the courts of appeals lack jurisdiction to second guess the factual basis for the immunity denial. They must instead take the district court’s assessment of the summary-judgment record as given and limit themselves to the core qualified-immunity issues. This limit on the scope of appeals was supposed to simplify and streamline litigation. But defendants flout Johnson’s limits with some regularity. They appeal and—without invoking an exception to Johnson—base their arguments on facts different than those that the district court thought a reasonable jury could find. Courts eventually reject these arguments as barred by Johnson. But at that point, the damage has been done. The defendant has created wholly unnecessary work for plaintiffs and delayed any progress in the suit for a year or more. Should qualified immunity stick around in its current or an altered form, it will be imperative to reform the rules governing qualified-immunity appeals. Foreclosing defendants’ abusive, fact-based qualified-immunity appeals will be a central part of that reform. But in the interim, something must be done. And that something is sanctions. I found few instances in which courts of appeals sanctioned defendants for violating Johnson. That needs to change. These appeals are frivolous. And the defendants who take them should be sanctioned.

Objective reasonableness and qualified immunity. a comparative legal analysis

The study of the reasonableness standard will be a long-lasting task for the legal academic community and for the practicing professionals due to its value and complexity, its significance and social impact, as well as its importance for practice. The research aims to elaborate a comparative analysis on the objective reasonableness standard, as well as the qualified immunity doctrine that is essentially related to the above-mentioned standard.

Driving While Black Is Not a Crime and There is a Way to Fix the Problem

The solution to the elimination of systemic racism in law enforcement is the abolition of qualified immunity for law enforcement officers.

The Limits of Qualified Immunity

In Estate of Jones v. City of Martinsburg , 961 F.3d 661 (4th Cir. 2020), the Fourth Circuit Court of Appeals considered whether a district court erred in granting qualified immunity to five police officers who shot and killed a man with schizophrenia after he was stopped for walking on a roadway.

Unlawful Entry into Residence

In Chamberlain v. City of White Plains , 960 F.3d 100 (2d Cir. 2020), the U.S. Court of Appeals for the Second Circuit considered whether there was a plausible claim for unlawful entry and whether the officers involved were entitled to qualified immunity. The Estate of Kenneth Chamberlain, Sr.,

BCG Vaccination Program Mitigates COVID19 Related Mortality: A Reality Check.

Since its origin in the Wuhan province of China in December 2019, Coronavirus Disease 19 (COVID-19) has spread to most parts of the world and has infected millions of people. However, the significant variability in the mortality rate across the world indicates some underlying factors, especially the immunity factors that may have a potential role in this variability. One such factor that is being discussed and tested is the Bacillus Calmette-Guerin (BCG) vaccine. The available evidence suggests that BCG vaccination provides broad protection against respiratory infections as well as other infections. Therefore, BCG may prove to be a barrier for COVID-19 infection and may offer a ray of hope. In this review, we contrasted BCG vaccination program with COVID-19 mortality and analyzed trained immunity and cross protection against unrelated pathogens due to BCG vaccination. On analyzing the available data, we observed that countries without universal BCG vaccination policy are severely affected, while countries having universal BCG policies are less affected. Based on these data, we propose that the SARS-CoV-2 related qualified immunity, cross protection against unrelated pathogens and COVID-19 impact variations could be partly explained by the different national policies regarding BCG childhood vaccination. The combination of reduced morbidity and mortality may make BCG vaccination a potential new tool in the fight against COVID-19.

Sorry, Not Sorry: An Empirical Review of Excessive Force Claims Focusing on Inconsistent Reasonableness Standards and Expressions of Sympathy

Inconsistent standards of objective reasonableness are not reasonable for those seeking to recover against law enforcement on excessive force claims. As the Supreme Court has established its § 1983 jurisprudence, the courts of appeal have diverged on the analysis of “objective reasonableness.” Instead of simply reviewing the various approaches, this article empirically reviews appellate level excessive force cases from a twenty-six-year span to determine the statistical outcomes of excessive force claims relative to the approach employed. The results suggest that although nonuniform reasonableness standards do affect the probability of a claimant’s successful outcome, reasonableness alone is not the sole determinative factor. In addition to highlighting the other measurable factors, this article sheds light on how the courts ultimately use expressions of sympathy to apologize to plaintiffs while simultaneously finding in favor of law enforcement. This article and its research places a focus on the reasonableness standards, but the analysis ultimately hinges on qualified immunity and the court’s acknowledgment of its shortcomings, but failure to act.

The New Qualified Immunity Quandary

With increased media coverage of excessive force cases we may someday achieve meaningful reform of the qualified immunity doctrine. But with Congress’ inability to accomplish major legislation in the current political climate it is doubtful that qualified immunity will be reformed, much less abolished, anytime in the near future. Unless—or until—Congress figures out a way to meaningfully reform qualified immunity we are left with the patchwork of decisions from the federal appellate courts. Qualified immunity cases and scholarship are riddled with wildly varying approaches to what constitutes “clearly established law” and whether courts should return the mandatory sequencing in Saucier v. Katz. Qualified immunity, for better or worse, is the “gift” that keeps on giving. These issues aside, it is no secret that qualified immunity protects “all but the plainly incompetent.” Should it, however, protect those who—for competency or other reasons—choose not to raise the defense? Enter a new quandary: sua sponte qualified immunity. As more § 1983 cases crowd the federal docket and as the Supreme Court’s disdain for these cases grows, some appellate courts have been raising the issue of qualified immunity sua sponte to either avoid constitutional issues or simply in an attempt to clear their dockets. I propose that the review of this practice is ripe for the Supreme Court’s attention and that the correct approach is for appellate courts not to raise qualified immunity sua sponte. I argue that failure for the Supreme Court to act to invalidate sua sponte qualified immunity will effectively shut the doors for plaintiffs seeking vindication of constitutional rights under § 1983.

The End of Comparative Qualified Immunity

Critics have called qualified immunity an “unqualified disgrace,” an “abomination,” and “a scourge that closes courthouse doors to people whose constitutional rights have been violated.” One particularly troubling aspect of qualified immunity is what I’ll call comparative qualified immunity: the ability of a government official to avoid liability by claiming that his behavior wasn’t that much worse than conduct by a prior official that was deemed constitutional. In November 2020, the Supreme Court seemingly created a narrow exception to comparative qualified immunity in cases involving “particularly egregious facts.” In February 2021, however, the Supreme Court signaled that this was no mere narrow exception; instead, it was likely the end of comparative qualified immunity.

Barred Objects (o): Police Brutality, Black Fetishes, and Perverse Demonstrations

Barred Objects (o)Police Brutality, Black Fetishes, and Perverse Demonstrations Calvin Warren It is axiomatic that police brutality is an illegitimate exercise of power which society gives to police. As such, it is a perversion of the rule of law. —Alexa P. Freeman It is the sheer jouissance that comes from separating the other from the unendurable limit of its being that drives [the torturer] on. —David Marriott Society is structurally perverse … Civilization is no doubt discontent, but also content with its discontent. —Lorenzo Chiesa i On May 25, 2020, Minneapolis police arrested George Floyd on suspicion of using a counterfeit $20 bill. I use the word "suspicion" because neither the status of the bill nor the intention to commit fraud were confirmed. But apodictic certainty is not required to detain or deploy extreme violence against black bodies—a mere hint, a suspicion, a suggestion, a feeling is evidence enough to justify brutality. George Floyd was pinned to the ground (within seventeen minutes of a call placed by a store employee), while officer Derek Chauvin pressed his knee into Floyd's neck for at least nine minutes and twenty nine seconds (even after Floyd stopped breathing completely).1 If nine minutes and twenty nine seconds seems excessive, an unreasonable amount of time to kneel on a windpipe, we must remember that we are being transported to "another scene"—where time is both without duration and is unrestrained by Law and its mandates. In this frozen temporal frame, a knee is transformed into a deadly weapon, bystanders beg and plead for mercy, and Derek Chauvin, intoxicated with omnipotence, smirks at us. This smirk, somewhat of a Barthesian punctum, punctures in its confidence and arrogance. Chauvin knows something we don't know, or more precisely something we disavow. This scene is so familiar, repeated with such frequency, we could have described it in advance [End Page 29] without viewing the video: the supine, tortured black body; the omnipotent, brutal police officer; the witness(es). Because the scene, or let's call it an enactment, is lodged deeply in our unconscious, we anticipate it in advance, filling in the details as we learn more. Are we witnessing the enactment of fantasy? After watching this video, again and again, unable to refuse it or neglect it, I realized I was transfixed by Chauvin's smirk. It was a familiar smirk to me, psychoanalytically, resembling the pervert's enjoyment while re-staging fantasy. Is policing a perverse structure? How might our strategies shift if we consider police brutality an instantiation of the drive rather than the outcome of insufficient training? Is the law even capable of managing such a drive, a drive codified within its structure? Moreover, does "qualified immunity" constitute the impotence (and failure) of the Father's Name and his Law to manage jouissance or is it a necessary exception sustaining the Law itself? Police brutality might constitute what Frantz Fanon calls a "Real Fantasy" in that anti-black violence is not restricted to the dream-work but also enacted on actual black bodies—a terrifying deconstruction of outside/inside, psyche/culture, and individual/social.2 As an extravagant staging, police brutality is fantasy in real time, a repetitive production without end, without restriction, without reprieve. Understanding this fantasy, however, requires a rethinking of psychoanalysis, jouissance, and anti-blackness. In this meditation, I will argue police brutality is a structure of perversion and black victims are fetish-objects (barred objects); this brutality, then, is a repetitive demonstration of accessing jouissance, an exposure of Law's impotence, and the (failed) attempt to plug a hole in the Other, a hole the Law is complicit in filling. I offer a wayward reading of Lacanian psychoanalysis and introduce a new term (o) and a new formula (a<>o) to explain why police convictions are so rare and sentencing is often disproportionate, considering the severity of the brutality. Reading both police brutality and sentencing as facets of perversion offers psychoanalysis a new perspective on blackness, anti-black enjoyment, and racial fetishism. ii. the barred object (o) Traditional psychoanalytic accounts of racism explain it as a neurotic war of jouissance, where the racial other is presumed to have...

Assessment of Educational Law In-Service Needs and Percieved Competencies of Texas School-Based Agricultural Education Teachers

Litigation in education has drastically risen over past decades, representing the need for teachers to have a foundational knowledge of the educational laws which govern them. The myriad of educational law sources and the perpetually changing nature of school law serve as barriers for teachers’ competence in educational law. The purpose of this study was to identify the specific in-service educational law training needs of Texas school-based agricultural education (SBAE) teachers. Furthermore, this study sought to determine the effect of background characteristics on teacher’s perceived competence on educational law issues. An educational law needs assessment was distributed to a probabilistic sample of Texas SBAE teachers (n = 325). Two-hundred and thirteen teachers completed the needs assessment, yielding a response rate of 65.5%. The Texas SBAE teachers identified (1) qualified immunity, (2) search and seizure of students, (3) transportation of students in school and (4) personal vehicles, and (5) teacher-initiated removal of students as their highest-ranked educational law in-service needs. The results of a factorial ANOVA indicated the educational law competence of teachers was significantly different based on the amount of previous educational law training the teacher had received.

Unveiling the contemporary arbitration regime in Tanzania: Anecdotes worth sharing, prospects and challenges

This article critically discusses the new changes brought about by Tanzania’s new Arbitration Act of 2020 of Tanzania and its regulations and their implications for domestic and international arbitration and other related laws. The article finds that the establishment of the Tanzania Arbitration Centre; the requirement for accreditation of arbitrators; the introduction of a code of conduct for arbitrators; the ability of international arbitral tribunals to arbitrate investor–state disputes; the introduction of qualified immunity; and clarification of other grey areas are a long-awaiting milestone. The article also argues that the changes will have enormous and far-reaching implications on the arbitration framework in Tanzania, including propelling crossborder commerce and investments. It is further argued that despite its prospect, some areas in the novel arbitration regime need to be revisited to create a more credible framework for both international and domestic arbitration.

Qualified Immunity and Religious Liberty

Some illegal burdens on religious liberty are compensable only by money damages. And Congress enacted the Religious Freedom Restoration Act in part to address these cases. In Tanzin v. Tanvir, the Supreme Court recently held that RFRA permits damages suits against government officers in their individual capacities. But the Court assumed without deciding that officials are still qualifiedly immune from suit. So, plaintiffs’ ability to recover under RFRA now turns on the ability to identify existing law that “clearly establishes” their religious liberty rights. The Tanvir Court failed to comment on the substance of the qualified immunity defense in religious liberty cases. But courts have usually treated qualified immunity as a free-standing, homogenous doctrine not moored to any underlying claim, despite qualified immunity’s putatively statutory origins in the Civil Rights Act of 1871. And a growing body of recent scholarship is sharply critical of the state of qualified immunity doctrine. In particular, the Court’s requirement that plaintiffs point to “clearly established law” before they can overcome qualified immunity has been attacked as unjustifiable and disconnected from the animating justifications of qualified immunity. This paper makes two contributions to the literature. First, it approaches qualified immunity from a different angle than prior scholarship, which has tended to focus, understandably, on police use of force. But religious liberty cases raise unique concerns. This paper argues that applying the “clearly established law” test in religious liberty cases is both in deep tension with the Establishment Clause principle of denominational neutrality and unfaithful to the Religious Freedom Restoration Act. Second, this paper examines the consequences of the Court’s decision in Tanvir and demonstrates that the decision is unlikely to have any material impact without reforms to qualified immunity.

Zones of Discretion at Common Law

Scott Keller argues in an important forthcoming article that the common law recognized forms of qualified immunity. This reply suggests that Keller’s authorities comprise a body of administrative law, rather than a body of qualified immunity law. Many of the doctrines Keller identifies operate much the way Chief Justice Marshall’s account of judicial review operated in Marbury v. Madison. Marshall acknowledged that matters lawfully assigned to the discretion of the executive branch were beyond the scope of judicial review. But where an official’s lawful discretion ended, and legal boundaries were transgressed, the common law was available (indeed obliged according to Marshall) to supply a remedy. In much of what Keller points to, common law courts were acknowledging that executive officials enjoyed zones of lawful discretion. But the common law did not confer immunity when those boundaries were transgressed.

Justice at the Border

In two recent cases, children were shot by Border Patrol agents across the United States and Mexico border. In one case, the Ninth Circuit found the Border Patrol agent was not entitled to qualified immunity and should pay damages to the teen’s family. However, the Fifth Circuit refused to allow damages in the other case because of concerns over national security. The circuit split raises questions over separation of powers and how far the power of the courts should go when deciding damages in cases involving transnational issues. This Article discusses officials’ qualified immunity and its limits when constitutional violations occur; judicially created Bivens damages; and the circuit split over separation of powers concerns and fairness to plaintiffs.