Welcome to DU!
The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards.
Join the community:
Create a free account
Support DU (and get rid of ads!):
Become a Star Member
Latest Breaking News
General Discussion
The DU Lounge
All Forums
Issue Forums
Culture Forums
Alliance Forums
Region Forums
Support Forums
Help & Search
General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsQualified Immunity's Boldest Lie
https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/Schwartz_QualifiedImmunity_88UCLR605.pdfQualified immunity shields government officials from damages liabilityeven if they have violated plaintiffs constitutional rightsso long as they have not vio- lated clearly established law. The Supreme Court has explained that watershed cases describing legal requirementslike Graham v. Connor and Tennessee v. Gar- nerare alone insufficient to clearly establish the law. Instead, the plaintiff must find prior cases applying Graham and Garner to cases with facts virtually identical to their own case, explaining that such factually analogous cases are necessary to put officers on notice of the illegality of their conduct. But do officers actually know about the facts and holdings of these cases, and rely on them when taking action? Courts and commentators have been skeptical of this assumption, but it has never been tested.
This Article reports the findings of a study, the first of its kind, examining the role that circuit decisions applying Graham and Garner play in police officers pol- icies, trainings, and briefings. Having viewed hundreds of police policies, training outlines, and other briefing materials provided to California law enforcement offic- ers, I describe unequivocal proof that officers are not notified of the facts and hold- ings of cases that clearly establish the law for qualified immunity purposes. Instead, officers are taught the general principles of Graham and Garner and then are trained to apply those principles in the widely varying circumstances that come their way.
Moreover, even if law enforcement agencies made more of an effort to educate their officers about court decisions analyzing the constitutional limits of force, the expectations of notice and reliance baked into qualified immunity doctrine would be obviously unrealistic. There could never be sufficient time to train officers about all the court cases that might clearly establish the law. And even if officers were trained about the facts and holdings of some portion of these cases, there is no reason to believe that officers would analogize or distinguish situations rapidly unfolding be- fore them to the court decisions they once studied.
There is a growing consensus among courts, scholars, and advocates across the ideological spectrum that qualified immunity doctrine is legally unsound, unneces- sary to shield government officials from the costs and burdens of litigation, and de- structive to police accountability efforts. This Article reveals another reason to reconsider the doctrine and, especially, its requirement that plaintiffs find clearly
established law.
Article at link above.....too hard to excerpt due to footnotes
InfoView thread info, including edit history
TrashPut this thread in your Trash Can (My DU » Trash Can)
BookmarkAdd this thread to your Bookmarks (My DU » Bookmarks)
1 replies, 638 views
ShareGet links to this post and/or share on social media
AlertAlert this post for a rule violation
PowersThere are no powers you can use on this post
EditCannot edit other people's posts
ReplyReply to this post
EditCannot edit other people's posts
Rec (5)
ReplyReply to this post
1 replies
= new reply since forum marked as read
Highlight:
NoneDon't highlight anything
5 newestHighlight 5 most recent replies
Qualified Immunity's Boldest Lie (Original Post)
Nevilledog
May 2021
OP
crickets
(25,983 posts)1. Qualified immunity has got to go. nt