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Abstract

Section 1983 gives people the right to sue a government official for violating their constitutional rights. Qualified immunity provides these same officials with an affirmative defense -- even if they violated the constitution, they are not liable for monetary damages if the right at issue was not clearly established at the time of the alleged conduct. The qualified immunity is based upon the basic assumption that “a reasonably competent public official should know the law governing his conduct.” If the law was clearly established the official will be liable. If not, the Court has reasoned that it would be unfair to hold defendants liable because they could not be “expected to anticipate subsequent legal developments.” At least one legal scholar has argued that police, in fact, are not regularly informed of court decisions interpreting Fourth Amendment use of force decisions and, accordingly, do not know the law governing their conduct. This Article builds upon and develops that assertion. To better understand how police learn of new legal opinions the authors surveyed police departments across the country asking specific questions about officials’ legal training. Based upon the responding surveys, it seems unlikely that reasonable officials are aware of recent legal opinions governing their conduct. Nevertheless, this Article argues that these findings do not necessarily resolve whether government officials should be aware of the law governing their conduct. This depends on whether qualified immunity is understood as a positive or normative standard. The authors conclude that the Supreme Court’s qualified immunity doctrine sets forth both positive and normative notions—what is (positive) and what ought to be (normative)—and then distorts them both. Qualified immunity does not operate as a true normative standard because it is so far removed from any real ideal. It also fails as a positive standard because it is divorced from reality. The result is an illogical and unworkable doctrine.

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