Thrilled that my newest article, "Qualified Immunity's Boldest Lie" is now in print. Many many thanks to the fabulous @UChiLRev editors who worked on the article.…

What IS qualified immunity's boldest lie? Glad you asked. (Thread.)
To defeat QI, plaintiffs have to find prior cases with virtually identical facts. The SCT says these factually analogous cases are necessary to notify officers about the illegality of their conduct. But officers aren't actually educated about the facts and holdings of most cases.
I've reviewed 100s of use of force policies, training
outlines, and briefing materials provided to California officers, and they clearly show that officers are not notified of the facts and holdings of cases that clearly establish the law for qualified immunity purposes.
Instead, officers are taught the general principles of the Supreme Court's use of force cases - Graham and Garner - and then are trained to apply those principles in the widely varying circumstances that come their way.
Even if departments made more effort to educate their officers about court decisions, the expectations of notice & reliance baked into QI doctrine would be unrealistic. There could never be enough time to train officers about all court cases that "clearly establish" the law...
...and even if officers were trained about the facts and holdings of some portion of these cases, there is no reason to believe that officers would analogize or distinguish situations rapidly unfolding before them to the court decisions they once studied.
There is a growing consensus that qualified immunity doctrine is legally unsound, unnecessary to shield government officials from the costs and burdens of litigation, and destructive to police accountability efforts. This Article reveals another reason to reconsider the doctrine.

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More from @JCSchwartzProf

21 Apr
We don’t have specifics, but sounds like Republican Senator Tim Scott is proposing to end qualified immunity and make cities, not officers, liable. This is HUGE folks. Let me explain why.…
Qualified immunity currently slams the courthouse doors against plaintiffs unless they can find a prior court case with virtually identical facts. It increases the costs and complexity of civil rights litigation. It obscures the contours of the Constitution. It is bad bad bad.
One of the justifications for qualified immunity is to shield officers from financial liability in civil rights cases. But QI isn’t necessary to serve this role because officers virtually never pay anything in settlements and judgments even when plaintiffs can overcome QI.
Read 11 tweets
22 Feb
The Supreme Court just made an important and promising shift on qualified immunity in a case called McCoy v. Alamu- although they did it so quietly that you wouldn't notice if you didn't look closely. Here's the scoop, in a thread...
In a case brought by @RightsBehind, a Texas corrections officer beat a prisoner without provocation. The district court granted the officer QI and the 5th Circuit Court of Appeals affirmed.…
In the opinion, the 5th relied heavily on Supreme Court QI precedent, saying “[t]he pages of the United States Reports teem with warnings about the difficulty of” showing that the law was clearly established and ruling that no prior court decision had sufficiently similar facts.
Read 8 tweets
12 Feb
Have you ever wondered what qualified immunity is or what it does or where it came from? Now's the time to get your questions answered. #npap #PoliceAccountability
Here's a little history. Qualified immunity was created by the Supreme Court in 1967, to shield police and other government officers from damages liability when they acted in "good faith." But in 1982, the Court said it should protect officers unless...
... they violated "clearly established law." Today the Supreme Court has instructed lower courts that they must dismiss damages claims against officers unless there is a prior opinion in which a court held virtually identical facts to be unconstitutional.
Read 4 tweets
2 Nov 20
Today’s summary reversal in Taylor v. Riojas is a big deal. In it, SCOTUS breathed new life into the notion that qualified immunity should be denied if the constitutional violation is obvious - a ruling the Court made almost 20 years ago but has ignored until today. 1/8
One of the most damaging aspects of qualified immunity is the notion that plaintiff must find a prior court decision with virtually identical facts to establish officers were on notice of their misconduct. It’s a nearly impossible standard to meet - and ridiculous to boot...2/8
...because officers aren’t actually educated about the facts and holdings of these cases (so they aren’t actually on notice of these decisions.)…. 3/8
Read 9 tweets
17 Jun 20
I appreciate @danepps reference to my research in his @nytimes oped. I agree that abolishing qi is not a cure-all. But I disagree with the conclusion that eliminating qi is "unlikely to alter police behavior." Here's why. 1/7…
I agree that many other factors--not just qi--limit lawsuits' power & have studied some that Epps describes-officers are usually indemnified, police budgets are insulated from lawsuit costs, & there are other barriers to relief, including the Court's 4th Amendment standards. 2/7
But eliminating qi would have more than symbolic power. FWIW, symbolic power on its own is important-qi decisions insulating officers despite egregious behavior tell officers they can violate people's rights with impunity & tell people their rights don't matter. H/t Sotomayor 3/7
Read 7 tweets
1 Jun 20
It's high time to #EndQualifiedImmunity. But what impact would ending qi have? Some say qi is responsible for the horrors of the past weeks, some say other barriers to accountability mean little would change. I say both are somewhat right. This thread explains why. 1/6
Ending qi would mean an end to court opinions that send the message that officers can violate peoples' rights without consequence. Ending qi would also reduce the costs, risks, and complexity of civil rights litigation, so might encourage more attorneys to bring these cases. 2/6
But qi isn't the silver bullet some hope. Without qualified immunity, government indemnification, budgeting, and risk-management practices, and the many other drivers of government behavior would continue to minimize lawsuits’ deterrent effects. 3/6
Read 6 tweets

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