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- Title
PLAINLY INCOMPETENT: HOW QUALIFIED IMMUNITY BECAME AN EXCULPATORY DOCTRINE OF POLICE EXCESSIVE FORCE.
- Authors
OBASOGIE, OSAGIE K.; ZARET, ANNA
- Abstract
Recent instances of law enforcement killing community members and ensuing social movements have increased public attention on the issue of police use of force and the lack of officer accountability. Qualified immunity has been central to this discussion because the doctrine is often used to shield officers from civil lawsuits when plaintiffs bring constitutional tort claims under 42 U.S.C. § 1987. The traditional understanding of qualified immunity as applied to excessive force cases is that it tracks the history of the doctrine itself. It is widely accepted that the doctrine began to thwart excessive force claims against police right after it emerged for the first time in 1967 with Pierson v. Ray—a false arrest case that created a subjective good faith defense for some § 1983 claims. Most assume this influence continued as qualified immunity took on its modern form in 1982 with Harlow v. Fitzgerald—an executive privileges case that created an objective qualified immunity test relative to clearly established law. With this standard narrative, it is largely thought that these early cases on qualified immunity in the contexts of false arrests and executive branch privileges naturally, immediately, and seamlessly became a significant constraint on plaintiffs’ § 1983 excessive force claims against police officers. This is not what happened. Drawing upon an original empirical dataset of over five hundred § 1983 excessive force cases over more than five decades, this Article is the first to tell the story of how qualified immunity became an exculpatory doctrine of police excessive force. The data shows a pattern where, over time, qualified immunity morphed from a limited theory of executive privilege into a specific theory disproportionately used to prevent civil lawsuits against police officers who use excessive force. We found that during its origins, qualified immunity was raised in a variety of cases involving public officials, including disputes concerning employment discrimination, free speech rights, and improper seizures of property. But as the power of qualified immunity grew, so too did the proportion of qualified immunity cases involving police officers facing § 1983 suits for using excessive force. This data matches our doctrinal assessment. From 1967, when the Court first created qualified immunity for § 1983 claims, until 2001, when the Supreme Court issued its first decision in a qualified immunity case involving police excessive force in Saucier v. Katz, many lower federal courts and legal scholars thought qualified immunity did not apply in situations where police faced civil suits for using unlawful amounts of force. Indeed, before 2001, the question of whether qualified immunity ought to apply to police officers' use of excessive force was deeply contested. The empirical and doctrinal assessments provided in this. Article suggest that there is a “middle history” of qualified immunity that needs further exploration, i.e., a series of federal court decisions that made qualified immunity a dominant § 1983 defense for law enforcement. The middle history that brought qualified immunity into excessive force doctrine has thus far been overlooked, which impoverishes our understanding of how qualified immunity adversely impacts constitutional tort litigation regarding police use of excessive force. This Article provides the first identification and critical examination of this middle history to highlight the particular doctrinal choices that federal courts made during these years to understand how qualified immunity became enmeshed with § 1983 excessive force litigation. These results demonstrate that while qualified immunity is now a central fixture in almost all excessive force cases, it is only quite recently that this relationship took its current shape as a largely insurmountable barrier to police accountability. The doctrinal and empirical examinations provided by this Article help us understand the political nature of qualified immunity and provide needed context for assessing various police reform efforts.
- Subjects
LAW enforcement; SOCIAL movements; FEDERAL courts; ACTIONS &; defenses (Law); SCHOLARS
- Publication
University of Pennsylvania Law Review, 2022, Vol 170, Issue 2, p407
- ISSN
0041-9907
- Publication type
Article