With increased media coverage of excessive force cases, we may someday achieve meaningful reform of the qualified immunity doctrine. But with Congress’s inability to accomplish major legislation in the current political climate, it is doubtful that qualified immunity will be reformed, much less abolished, anytime in the near future. Unless—or until—Congress figures out a way to meaningfully reform qualified immunity, we are left with the patchwork of decisions from the federal appellate courts. Qualified immunity cases and scholarship are riddled with wildly varying approaches to what constitutes “clearly established law” and whether courts should return the mandatory sequencing in Saucier v. Katz. Qualified immunity, for better or worse, is the “gift” that keeps on giving. These issues aside, it is no secret that qualified immunity protects “all but the plainly incompetent.” Should it, however, protect those who—for competency or other reasons—choose not to raise the defense? Enter a new quandary: sua sponte qualified immunity. As more § 1983 cases crowd the federal docket and as the Supreme Court’s disdain for these cases grows, some appellate courts have been raising the issue of qualified immunity sua sponte to either avoid constitutional issues or simply in an attempt to clear their dockets. I propose that this practice is ripe for Supreme Court’s review and the correct approach is for appellate courts not to raise qualified immunity sua sponte. I argue that failure if the Supreme Court fails to invalidate sua sponte qualified immunity, plaintiffs seeking vindication of constitutional rights under § 1983 will effectively be left without recourse.
Justin C. Van Orsdol,
The New Qualified Immunity Quandary,
100 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol100/iss3/4