Qualifying Qualified Immunity: The Cases in Which the Fair Notice Rationale Clearly Supports …
This is the fourth post in a series on The Fair Notice Rationale for Qualified Immunity (forthcoming Florida Law Review). So far I have argued that: (1) unpredictable adjudications are unfair in the same way that retroactive law is unfair, by treating the defendant as someone who is incapable of making plans; (2) constitutional liability, as a class of liability, is more likely to be unpredictable than other forms of civil liability, and when it is unpredictable, it is even more unfair because it is in tension with the officer’s prior duty and carries the community’s moral censure.
We are finally ready for the payoff—what does this mean for qualified immunity? This post will identify cases where the fair notice rationale clearly does not support the current scope of the doctrine, and cases where it clearly does. The final post tomorrow will discuss how courts should evaluate hard cases and briefly consider the possible application of the fair notice rationale to other areas of law.
[1.] Cases where qualified immunity does but should not apply
Under the current doctrine, it is irrelevant whether the official acted with bad faith or violated a clear criminal prohibition. All that matters is whether the official violated a clearly established constitutional right. The fair notice rationale does not support immunity in those cases.
When an official acted in bad faith—with the intent to violate the plaintiff’s rights, or recklessly as to those rights—the unpredictability of constitutional liability is irrelevant. The defendant was trying to violate the plaintiff’s rights, or was acting with reckless indifference to those rights. Far from treating the defendant as though he is incapable of planning, holding him liable simply rewards him for his actual plans, or at a minimum, for taking the bare minimum amount of care.
This would be a significant reform of the doctrine. The Supreme Court ori
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