Teacher. Nathan Chapman Guest-Blogging on “The Fair Notice Rationale for Qualified Immunity”

I am delighted to announce that Professor Nathan Chapman (Georgia) will be invited to blog this week on his next article, The Fair Notice Rationale for Qualified Immunity; here is the summary :

After many high-profile cases of police wrongdoing, a growing number of courts, academics and politicians have demanded the abolition of qualified immunity. The doctrine requires courts to dismiss actions for damages against officials for violation of the plaintiff’s constitutional rights unless a reasonable official knew that the right was “clearly established.” Scholars argue that the doctrine prevents deterrence of rights violations and prevents compensation and vindication of victims.

One line of attack has drawn on empirical evidence to challenge what scholars see as the primary rationale for qualified immunity, namely that it prevents the threat of constitutional liability from overly deterring the effective application of the law. Yet the Supreme Court has consistently offered another justification for the doctrine: it would be unfair to hold officers accountable without sufficient notice that their conduct was unconstitutional. In contrast to the over-deterrence rationale, researchers have almost entirely ignored the fair notice rationale for qualified immunity.

This article assesses the extent to which the fair notice rationale supports the current doctrine of qualified immunity. It does so by exploring the limits of the jurisprudential principle of prospective, according to which the law should normally only apply prospectively.

To approximate the rule of law and treat subjects with equal dignity, the law must be able to guide conduct. The principle of prospective obviously applies to retroactive legislation, but unpredictable judgments do not provide such guidance either, and they are particularly unjust when they impose retroactive moral condemnation. Constitutional liability is often highly unpredictable, seemingly at odds with prior legal obligations, and unlike most tort liability, expresses the moral censure of the community.

This article argues that the logic of fair notice supports qualified immunity in some cases to which the doctrine currently applies, but not all. He argues for immunity where an officer could not reasonably foresee constitutional liability or public condemnation, but not where an officer acted in bad faith, violated a criminal statute, or violated a constitutional rule with an underlying justification. that applies to the officer’s conduct. Taking the fair notice rationale seriously provides a principled roadmap for reforming qualified immunity.

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