Document Type
Article
Publication Date
2021
Abstract
Ahmaud Arbery, Jacob Blake, Rayshard Brooks, George Floyd, Daniel Prude, Breonna Taylor. In 2020, the United States' longstanding problem of police brutality, especially related to officer encounters with minorities, was on full display. The names listed here are only a snapshot of those cases that garnered the most significant media attention. Though in admittedly differing circumstances, each of these cases demonstrates that both on-duty and off-duty police interactions can have dire, even deadly, consequences. Yet, these situations are only those that resulted in death or severe injury. Invariably, there are numerous other instances where law enforcement, clothed with the state's authority, caused harm to those with whom officers come into contact.
Despite this risk of injury and rampant police brutality, there are often little-to-no consequences for these wrongful police actions. It is exceedingly rare for officers to be charged or indicted for harming people in the course of their work. Compounding this injustice, the civil justice system is also inadequate at compensating parties who are injured at the hands of those sworn to protect them. The primary litigation vehicle through which suffering parties may bring actions against officers for their misdeeds is a civil rights action pursuant to 42 U.S.C. § 1983. Unfortunately, judicially-created defenses to liability often bar the injured party from recovering from the officers who injured them. Through qualified immunity, officers are often immune not only from monetary liability, but also from even being required to participate in the lawsuit. Once an officer raises the defense of qualified immunity, the burden moves to the injured party to prove that the defendant officer violated a "clearly established constitutional right" in their conduct that caused the plaintiffs suffering. In practice, this prohibits a vast number of claims against law enforcement personnel.
This Article takes aim at qualified immunity. Certainly, ridding United States jurisprudence of the defense altogether is the most preferable outcome for those who wish to see injured parties compensated for the harm they suffered at the hands of the arms of the state. This type of reform is not likely to occur, however. With that in mind, this Article argues that the "clearly established right" standard is unworkable, unduly burdensome, and out of step with reality. It is plainly unrealistic to maintain that police officers are amply familiar with constitutional law and criminal procedure that law enforcement may ever be deemed on notice of established precedent in those areas of the law. The woeful lack of training given to officers in these doctrines makes it difficult to maintain that law enforcement personnel are aware that their actions violate the constitutional rights of those with whom they are interacting. Given this near-axiomatic proposition, Congress or the Supreme Court of the United States should provide a more workable standard that does not leave injured citizens holding the bag.
Accordingly, this Article offers a simple alternative that is grounded in multiple areas of the law already-a "reasonable person" test. Under this standard, an officer is not entitled to qualified immunity if a reasonable person, not a reasonable officer, would believe that the officer's action violated the plaintiffs constitutional rights. This standard is objective, looks to common knowledge held in the community, and still offers a viable defense to the police. Moreover, this Article proposes that qualified immunity should cease serving as an immunity to suit but should remain an immunity from liability if proven. The proper procedure for granting qualified immunity is also changed under this system to permit the finder of fact, not the court on summary judgment, to determine the thoughts of a reasonable person.
This Article tackles this issue in multiple parts. Part II discusses the history of Section 1983. This survey includes the impetus behind the legislation and how the Supreme Court has interpreted and applied the act. Part III summarizes the arguments for and against qualified immunity. Part IV offers three case examples of the real harms suffered by plaintiffs at the hands of police, as well as the compounding injustice of qualified immunity when applied to those circumstances. Part V outlines the proposed reformation of the clearly established right formula for qualified immunity. Finally, Part VI concludes by reviewing the above sections and looking forward to opportunities for reform.
Recommended Citation
Bailey D. Barnes,
A Reasonable Person Standard for Qualified Immunity, 55 Creighton Law Review 33
(2021).
Available at: https://scholarship.law.missouri.edu/facpubs/1280