Mr. Scott's parents filed a lawsuit, and the deputies moved to dismiss on the grounds that they had not violated any "Clearly established" right and were therefore entitled to qualified immunity.
The Supreme Court should take the case and dial back qualified immunity for three reasons.
First, qualified immunity was invented by the Supreme Court out of whole cloth and has no basis statutory text, legislative intent, or sound public policy.
The Supreme Court has qualified that standard by substituting the phrase "Clearly established" for "Any." That was a blatant act of judicial policymaking, as University of Chicago law professor Will Baude demonstrates in a recent law review article that utterly destroys the originalist pretensions of qualified immunity.
The Sixth U.S. Circuit Court of Appeals issued a decision last week, Latits v. Phillips, in which the judges unanimously agreed that a police officer violated the Constitution by shooting a fleeing suspect, but disagreed as to whether the violation was sufficiently clear to overcome qualified immunity.
It all came down to their perception of whether existing case law placed the fact of the violation "Beyond debate." One judge said yes, two said no: case dismissed.
Finally and most importantly, qualified immunity sends police officers false signals about the constitutionality of their actions.
https://www.cato.org/publications/commentary/unqualified-injustice
The Supreme Court should take the case and dial back qualified immunity for three reasons.
First, qualified immunity was invented by the Supreme Court out of whole cloth and has no basis statutory text, legislative intent, or sound public policy.
The Supreme Court has qualified that standard by substituting the phrase "Clearly established" for "Any." That was a blatant act of judicial policymaking, as University of Chicago law professor Will Baude demonstrates in a recent law review article that utterly destroys the originalist pretensions of qualified immunity.
The Sixth U.S. Circuit Court of Appeals issued a decision last week, Latits v. Phillips, in which the judges unanimously agreed that a police officer violated the Constitution by shooting a fleeing suspect, but disagreed as to whether the violation was sufficiently clear to overcome qualified immunity.
It all came down to their perception of whether existing case law placed the fact of the violation "Beyond debate." One judge said yes, two said no: case dismissed.
Finally and most importantly, qualified immunity sends police officers false signals about the constitutionality of their actions.
https://www.cato.org/publications/commentary/unqualified-injustice
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