Qualified Immunity and Statutory Interpretation

The title of this post comes from this recent paper arguing that SCOTUS's decision in Graham v. Connor created a new qualified immunity jurisprudence--a shift from the common-law approach to qualified immunity in excessive force claims to the current federal doctrine, which is substantially less protective of plaintiffs. Specifically, it argues for a return to the former method. Here's the abstract:

Before the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable “shocks the conscience” test of the Fourteenth Amendment. Only after Graham did excessive force cases — now under the Fourth Amendment and 42 U.S.C. § 1983 — inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the next.

Part II of this Article describes the evolution of this qualified immunity doctrine and demonstrates how common law immunities were traditionally held to have been incorporated into § 1983 by the Congress of 1871 as a matter of statutory interpretation. It claims that only when the Court began hearing federal Bivens actions and created an immunity doctrine untethered from statutory interpretation, the common-law approach was lost and the modern, nearly insurmountable qualified immunity doctrine was adopted. 

Part II thus establishes the historical importance of common-law interpretation to § 1983 suits. Part III then shows how differently excessive force cases would have to be treated were the court to return to the common law interpretive methods in § 1983 cases. At common law, excessive force actions were quite common and more liberal toward plaintiffs seeking redress; officers were expected to pay damages for any unnecessary force; and it was the province of the jury to determine such questions. Parts IV-V then make the theoretical case under both constitutional and statutory interpretation for replacing modern qualified immunity doctrine with a return to its common law variety in excessive-force actions, an approach that would also be far more judicially workable than the current doctrine.

CRL&P related posts:

• Civil rights groups want Texas schools rid of pepper spray and Tasers
• Excessive force claims under Fourth Amendment less protective when police use tasers?
• Don’t Daze, Phase, or Lase Me, Bro! Fourth Amendment Excessive-Force Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot Withstand a Constitutional or Practical Challenge
• Don't tase me, Bro!
• Cop facing criminal charges, embroiled in civil rights lawsuit resigns