Federal courts scholar offers insight on qualified immunity during Dunwody Lecture
by Scott Emerson
Some see it as a legal loophole for errant government officials. Others view it as a necessary doctrine to protect police officers from the liability for bad outcomes in doing their difficult jobs. But most scholars agree it has turned into something like constitutional quicksand because of the way the U.S. Supreme Court has formulated the doctrine.
Prominent federal courts scholar, John C. Jeffries Jr., the David and Mary Harrison Distinguished Professor of Law at the University of Virginia, provided his legal insight regarding qualified immunity as the speaker for the Florida Law Review’s 29th annual Dunwody Distinguished Lecture.
"Qualified immunity is a doctrine that precludes damages where the defendant did not violate a clearly established constitutional right," Jeffries said. "More fully, damages are barred if, and I'm quoting from the court, 'a reasonable officer could have believed his or her actions to be lawful in light of clearly established law.' Qualified immunity is the general liability rule for damage actions against government, and it is the most important doctrine in the law of constitutional tort."
Jeffries added that while qualified immunity is an important doctrine, it can be a real snarl for attorneys and the courts.
"The instability and confusion of qualified immunity law has been so persistent and so pronounced that one scholar describes the doctrine as existing in a 'perpetual state of crisis,'" Jeffries said. "Some sense of just how deep the problem is can be gathered by looking at the complexity of the efforts to resolve it."
Jeffries offered the audience two suggestions on how to make qualified immunity clearer.
"First, the Supreme Court needs to say explicitly-openly-what has been implicit in its decisions for 20 years. They need to say explicitly that they wish to have summary judgment laws applied differently in this area," Jeffries said. "A second suggestion is to change the doctrinal formulation of qualified immunity. Rather than asking if the defendant violated a clearly established right, I would ask whether the defendant’s conduct was clearly unconstitutional."
Jeffries concluded that there should be a course correction in the errant law and that qualified immunity should create a balance between the competing values of the importance of damages in vindicating rights and the need to protect officials, which is required to exercise their discretion in hard circumstances.
"Today qualified immunity is out of balance particularly in excessive force cases, and the Supreme Court needs to intervene and help straighten this out. I hope the changes I suggested would be modest steps in that direction," Jeffries said.
The Dunwody Distinguished Lecture Series was established by the U.S. Sugar Corporation and law firms of Dunwody, White & Landon, and Mershon, Sawyer, Johnston, Dunwody & Cole in honor of UF Law graduates Elliot (JD 33) and Atwood (JD 33) Dunwody, two brothers who dedicated their lives to the legal profession and labored to better social and economic conditions in Florida.