Qualified immunity is a beleaguered doctrine, and for good reason. The doctrine protects government officials from suits for money damages when they violate the Constitution in a way that was not "clearly established" at the time. In some cases, this leaves victims of official misconduct without compensation and vindication. The Supreme Court has said that the doctrine is necessary to prevent the threat of liability from deterring officials from zealously enforcing the law, but a series of empirical studies cast doubt on the assumptions underlying that rationale. So, what's the justification for the doctrine?
In a new law review article, The Fair Notice Rationale for Qualified Immunity, forthcoming in the Florida Law Review, I explore another rationale the Supreme Court has traditionally offered for qualified immunity: fair notice to officers. The Court has claimed that it would be unfair to hold officers liable for conduct that was not clearly unconstitutional at the time. This rationale tracks an intuitive notion: we ordinarily think it is unfair to punish someone when they could not have known their conduct was forbidden. But this intuition has been underexplored as applied to qualified immunity. My paper explores the conceptual foundations of the fairness rationale to see whether it actually supports qualified immunity—in its current form or, perhaps, in a different one.
This week, in a series of blog posts, I will discuss my findings and their implications for qualified immunity and, more tentatively, for some other legal doctrines. In short, based on the view of fairness I present in the article, the current form of the doctrine of qualified immunity overprotects officials. The fairness rationale supports limits on unpredictable constitutional liability, but the current doctrine protects officials in many cases where they could have easily predicted liability, either because they acted with bad intent, or because a reasonable person would have known that an existing legal rule would have applied to the officer's conduct. On the other hand, and more tentatively, the paper's fairness analysis suggests that some civil and criminal defendants, in some cases, may deserve more protection from unpredictable liability.
