,
6 tweets,
2 min read
Read on Twitter
1/ If an act is unconstitutional, and it's "clearly established" that the act is also a crime in which officers may not engage or that dep't policy would prohibit the act, then a plaintiff shouldn't have to *also* show that the act's unconstitutionality is clearly established.
2/ The "clearly established" law prong of qualified immunity is all about notice to officers & ensuring zealous law enforcement. The Supreme Court doesn't want police held unexpectedly liable based on activist judges' unpredictable ex post facto decisions to create new rights.
3/ But if there are already binding sources of law, such as state criminal law, that clearly establish an act as prohibited, then officers already know they may not engage in that conduct. They already have adequate notice they shouldn't be engaging in such conduct.
4/ I think we can protect both officers and rightholders by expanding the "clearly established" prong to require only that the act be "clearly established" as wrongful (i.e., either unconstitutional or illegal, or perhaps even against policy) under binding legal authorities
5/ An officer who chooses to engage in conduct they know is proscribed by binding authorities should not be entitled to the same immunity as an officer who lacks reasonable notice their conduct was prohibited.
6/If any @FSUCollegeofLaw 2Ls or 3Ls care deeply about civil rights, including Section 1983 claims and habeas corpus, I strongly encourage you to take my Federal Courts class next semester; we cover these and some of the other toughest, most interesting, & important topics in law
