Previously posted on SSRN.

Abstract

After many well-publicized cases of police wrongdoing, a growing number of courts, scholars, and politicians have demanded the abolition of qualified immunity. The doctrine requires courts to dismiss damages actions against officials for violating the plaintiff’s constitutional rights unless a reasonable officer would have known that the right was “clearly established.” Scholars argue that the doctrine impedes deterrence of rights violations and forecloses compensation and vindication for victims.

One line of attack has relied on empirical evidence to challenge what scholars take to be the main justification for qualified immunity, that it prevents the threat of constitutional liability from over-deterring effective law enforcement. Yet the Supreme Court has always offered another rationale for the doctrine: it would be unfair to hold officers liable without sufficient notice that their conduct was unconstitutional. Unlike the over-deterrence rationale, scholars have almost entirely ignored the fair notice rationale for qualified immunity.

This Article assesses the extent to which the fair notice rationale supports the current doctrine of qualified immunity. It does so by exploring the limits of the jurisprudential principle of prospectivity, which holds that the law must ordinarily apply only prospectively.

To approximate the rule of law and to treat subjects with equal dignity, the law must be capable of guiding conduct. The principle of prospectivity obviously applies to retroactive legislation, but unpredictable adjudications also fail to provide such guidance, and they are especially unfair when they impose retroactive moral condemnation. Constitutional liability is often highly unpredictable, seemingly at odds with prior legal duties, and, unlike most tort liability, expresses the community’s moral censure.

This Article argues that the fair notice rationale supports qualified immunity in some cases to which the doctrine currently applies, but not to all of them. It supports immunity where an officer could not have reasonably foreseen constitutional liability or public condemnation, but not when an officer acted in bad faith, violated a criminal law, or violated a constitutional rule with an underlying rationale that applies to the officer’s conduct. Taking the fair notice rationale seriously provides a principled roadmap for reforming qualified immunity.

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