I'm delighted to report that Prof. Nathan Chapman (Georgia) will be guest-blogging this week about his forthcoming article, The Fair Notice Rationale for Qualified Immunity; here's the Abstract:
After many well-publicized cases of police wrongdoing, a growing number of courts, scholars, and politicians have demanded the abolition of qualified immunity. The doctrine requires courts to dismiss damages actions against officials for violating the plaintiff's constitutional rights unless a reasonable officer would have known that the right was "clearly established." Scholars argue that the doctrine impedes deterrence of rights violations and forecloses compensation and vindication for victims.
One line of attack has relied on empirical evidence to challenge what scholars take to be the main justification for qualified immunity, that it prevents the threat of constitutional liability from over-deterring effective law enforcement. Yet the Supreme Court has always offered another rationale for the doctrine: it would be unfair to hold officers liable without sufficient notice that their conduct was unconstitutional. Unlike the over-deterrence rationale, scholars have almost entirely ignored the fair notice rationale for qualified immunity.
