This is the fifth and final post in a series on The Fair Notice Rationale for Qualified Immunity. Thanks so much to Eugene and the other conspirators for letting me post, and to you for reading to the bitter end!
Yesterday I said that there are some cases where the fair notice rationale clearly does not support the existing scope of qualified immunity, and some cases where it clearly does. In general, it does not support immunity when the official acted with malice or violated a criminal law, but it does support immunity when the liability depends on what is clearly a change to constitutional doctrine.
Today we consider the hard cases. The plaintiff alleges that the officer's conduct violated an existing legal standard, so we are not in "new constitutional rule" land. Yet the standard is vague and no court has ever held that the officer's specific conduct violates it. This problem could arise in a lot of doctrinal areas, from procedural due process to free speech, but the cases that tend to get the most attention are those that involve the use of force by police officers or incarceration officials. Was the search "reasonable" under the Fourth Amendment? Was the use of force "excessive"? And so on. These vague standards give rise to a generality problem: how specific must the rule be, or the facts in a prior case be, to "clearly establish" that the officer's conduct violated the plaintiff's right?
