The Volokh Conspiracy

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New draft of 'Is Qualified Immunity Unlawful?'


Over the weekend, I put up a new draft of my forthcoming article "Is Qualified Immunity Unlawful?," which I've previously blogged about a few times.

Ordinarily I wouldn't bother to note this here, but because the article has been cited in some ongoing immunity cases, I thought I'd mention the most relevant changes:

  • I've slightly revised, to make more precise, my discussion of Myers v. Anderson, a 1915 case in which the Supreme Court rejected a good-faith defense to a lawsuit under the civil rights statute.
  • I've added a short discussion of another way in which qualified immunity is given special solicitude, through a set of special civil procedure rules about discovery and immediate appeals.
    • I've added a few references to Ziglar v. Abbasi and other recent cases.

On the last point, I also discovered that until the Supreme Court's decision last term in Ziglar, there was a long-standing circuit split about whether the doctrine of qualified immunity extended at all to cases brought under 42 U.S.C. 1985, the civil rights conspiracy statute at issue in Ziglar. I couldn't find a prior Supreme Court case on point. The U.S. Court of Appeals for the 11th Circuit, for instance, has held that immunity does not apply to Section 1985 claims, because the conspiracy statute is so narrow that qualified immunity is not needed.

Yet in Ziglar, the court extended qualified immunity to a Section 1985 claim without even mentioning that it was an open question. Near as I can tell, the parties did not, either (or if they did, I missed it), so it's possible the court didn't even notice. In any event, I hadn't seen this mentioned anywhere and thought I'd point it out.