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The Court has repeatedly chided lower courts for denying qualified-immunity motions, explaining in a 2017 opinion that it had “issued a number of opinions reversing federal courts in qualified immunity cases” in recent years, but that it was “again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality,’” and should instead “be ‘particularized’ to the facts of the case.” Instead, the keystone is whether officers violated what the Court calls “ clearly established law.” And, in recent years, the Court has insisted that the law is only “clearly established” if the Supreme Court, the court of appeals for that jurisdiction, or a consensus of federal courts around the country has previously held virtually identical conduct to be unconstitutional.Įric Schnurer: Congress is going to have to repeal qualified immunity Today, qualified-immunity doctrine has nothing to do with whether officers acted in good faith.
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When the Supreme Court first created qualified immunity, in 1967, it was described as a protection for officers acting in good faith. But in the past few months, following a summer of protests against police violence, the Supreme Court seems to be quietly changing its message. Police, the Court has argued, need “breathing room to make reasonable but mistaken judgments about open legal questions.” The trouble is that no matter how egregious the conduct might seem, so long as a plaintiff cannot find a prior court decision declaring similar behavior unconstitutional, a court cannot hold officers accountable. For years, the Supreme Court has sent a clear message to lower courts: Police officers can’t be sued for violating someone’s constitutional rights unless the specific actions at issue have previously been held unconstitutional.