The state now serves as a litmus test for alarming predictions by police across the country that waiving qualified immunity would seriously hamper their profession. A forthcoming article by Scott Keller, the former attorney general of Texas, argues more generally that nineteenth-century government officials enjoyed independent immunity for discretionary acts—then called „quasi-judicial” immunity—unless they acted maliciously or in bad faith. Will Baude has already published a response to this article, arguing that this type of immunity only protects quasi-judicial acts such as election administration and tax assessment, and not ordinary enforcement measures. The United States Supreme Court first invoked the doctrine of qualified immunity in Pierson v. Ray (1967), a case argued at the height of the civil rights movement. It is stated that it was originally introduced to protect law enforcement officers from frivolous lawsuits and financial liability in cases where they acted in good faith in unclear legal situations.   Yes. Incompetence is no exception to qualified immunity. The U.S. Court of Appeals for the Fifth Circuit granted qualified immunity to an official after he picked up a „mentally ill” man and, following an unwritten habit of throwing vagrants into other jurisdictions, drove the man to the county border and dropped him off at dusk along the highway, where he was then hit and killed by a motorist.
Yes, but Congress never intended to exist qualified immunity. This is clear from the fact that when Congress drafted the primary civil rights law, 42 U.S.C. § 1983, it contained no defence, nor was there a common law defence of qualified immunity against which it could have legislated. The Supreme Court created cloth qualified immunity less than four decades ago. It is up to the Supreme Court to get rid of it by simply repealing Harlow v. Fitzgerald. That is, if Congress wants to abolish qualified immunity, it has the power to do so. And the Big City Chiefs Association changed its longstanding stance in favor of qualified immunity in May to say there are circumstances in which it should not apply. Under qualified immunity, government employees can only be held liable for the violation of an individual`s rights if a court has previously ruled that it is „clearly established” that those specific acts are unconstitutional. If such a decision does not exist – or if it exists, but only in another jurisdiction – the official is immune, even if he or she has intentionally, maliciously or unreasonably violated the law or the Constitution. In another case, a court awarded an officer who used a „dismantling maneuver” against a small woman in 2014, causing her to fall to the ground, break her collarbone and cause her to lose consciousness. The court noted that although previous cases were similar, there were no exact facts in which an „MP used a dismantling maneuver to arrest a suspect who ignored the MP`s order to return here.” When the woman filed a lawsuit to hold the officer responsible for his excessive use of force, the court granted her qualified immunity, and the seriously injured woman remained without recourse.
But even Scott Keller agrees that nineteenth-century common law cannot justify modern qualified immunity for one major reason – today`s qualified immunity is not a bona fide defence. A staff member enjoys qualified immunity unless he or she has violated „clearly applicable law”, but this standard has nothing to do with whether the defendant actually acted in good faith; The only decisive factor is whether the facts are sufficiently similar to those of previous decisions. In August 2018, District Judge Don Willett accepted dubious when the U.S. Court of Appeals for the Fifth Circuit ruled that the Texas Medical Board was entitled to qualified immunity for unconstitutional search of a doctor`s medical records without a warrant.  Willett called for a „thoughtful reassessment” of the „clearly established right” of the qualified immunity analysis, noting the tendency of many courts to grant immunity without clear precedent, while avoiding the question of whether there has been a constitutional violation. Therefore, these courts do not enact new laws, so that „wrongdoers are not reprimanded and wrongdoers are not blamed.”  He wrote: The Supreme Court has generally attributed qualified immunity to immunities enjoyed by government actors when public officials were prosecuted for common law offences in the 19th century.