This column often addresses a recent Supreme Court or Second Circuit opinion on significant civil rights issues of the day. Today, though, we consider an important, recent law review article by Prof. William Baude: “Is Qualified Immunity Unlawful?,” 106 Cal. L. Rev. 45 (2018). Qualified immunity is often asserted and litigated in §1983 cases. But some conservative scholars now argue that the doctrine is lawless. This column discusses why.
Section 1983
First, a review. 42 U.S.C. §1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable.” If, for example, a police officer beats a civilian, the officer is liable in a §1983 damages action for violation of the Fourth Amendment prohibition against unreasonable seizures.
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