Panel Discussion on Qualified Immunity Next Week

An online event hosted by the Harvard Federalist Society

Next week, the Harvard Law School's Federalist Society will host a discussion about qualified immunity, featuring two one critics of the doctrine (me, and Joanna Schwartz) as well as two people who are closer to defenders, or at least skeptics of the critics (Scott Keller, and Judge Andrew Oldham). Judge Don Willett, author of several prominent opinions about qualified immunity, will moderate.

The event will be on Tuesday, 11/16, at 12:45 pm ET, and you can register here: https://harvard.zoom.us/webinar/register/WN_bLLNWz0rTOC5lO3ndGSYTQ.

And if you want to do the reading beforehand:

• Scott Keller, Qualified and Absolute Immunity at Common Law
• William Baude, Is Quasi-Judicial Immunity Qualified Immunity? and Is Qualified Immunity Unlawful?
• Joanna Schwartz, Qualified Immunity's Boldest Lie
• Judge Andrew Oldham, Official Immunity at the Founding

UPDATE: Joanna Schwartz won't be able to participate, it turns out, but hopefully it will still be a great event.

Comments

[Cal Cetín]

If the speeches are bad, can I get my money back, or only if similar speeches were denounced in prior court decisions?

[y81]

Making mock of uniforms that guard you while you sleep is cheaper than them uniforms, isn't it, professor?

[Cal Cetín]

And in exchange for guarding us while we sleep, the least we can ask is that they not get sued over petty disputes like whether they stole a quarter million dollars.

https://reason.com/2020/05/19/qualified-immunity-supreme-court-jessop-theft-kelsay-police-brutality/

[Gandydancer]

Nobody is mocking the unifor,s. which the cops may or may not be wearing. We're jeering claims that they were just doing their jobs as they understood them and didn't know that what they were doing was illegal.

[Rev. Arthur L. Kirkland]

"Making mock of uniforms that guard you while you sleep is cheaper than them uniforms, isn't it, professor?"

Prof. Volokh has forbidden use of the term that best describes a conservative who provides slobbering succor to abusive police in this regard -- because, apparently, that term hurts the feelings of right-wingers -- but the first word rhymes with "bop" and the second word would rhyme with "tuccor."

That's you, y81. A [word banned by Volokh Conspiracy Board of Censors].

[DaivdBehar]

All immunities are justified by the Sovereign's speaking with the Voice of God, delusional and psychotic, in violation of the Establishment Clause. All are self dealt, and corrupt. All are unauthorized industrial policy by the know nothing, toxic lawyer profession. Immunities grow an enterprise, like government. Liability shrinks one, like manufacturing. The scumbag lawyer profession killed manufacturing, and grew worthless government, a wholly owned subsidiary of the lawyer profession. All immunities justify endless rounds of violent retaliation in formal logic. The scumbag has to defer to formal logic, since it has more certainty than the laws of physics. Immunity has to become an absolute defense to the homicide of police and of government officials. They should be hunted down as long as they claim legal immunity.

[CJColucci]

As someone who has represented government officials accused of wrongdoing for nearly three decades, I have constantly been told how important qualified immunity is from the defense perspective and how awful it is from the plaintiff's perspective.
I have to say that I just don't see it in practice.
I can't think of a single case I have had that was decided on qualified immunity grounds rather than the merits, though we always assert it if possible. Most of the cases I have seen that were decided on qualified immunity grounds could with equal ease have been decided the same way on the merits. The few cases I have seen where this was not true were cases involving not outrageous conduct, but arcane or technical issues where reasonable people could disagree.
To the extent that my personal opinions, rather than my observations, matter, I favor the concept of qualified immunity, but think that courts have gone crazy with it in about the last dozen or so years and cannot defend much of the recent case law.
But based on my experience and research I've seen -- notably Professor Schwartz's -- I don't think the abolition of qualified immunity would change the results in many cases. If it disappeared, I wouldn't be upset, but I think its critics will find themselves like the dog that caught the car it was chasing. Now what? I predict a bunch of what used to be qualified immunity dismissals will end up as cases where the jury says: "I believe the cops" or the judge says: "you don't have the rights you think you have. See https://www.theonion.com/area-man-passionate-defender-of-what-he-imagines-consti-1819571149
I'm not sure that's a net gain from the plaintiff's perspective.

[Cal Cetín]

If the claims are meritless, then that should be the ruling, not "even if it was illegal they shouldn't have to face trial."

[CJColucci]

I didn't say they were meritless. I said they'd largely come out the same way, just with different verbiage. And that the net result would be more clean cases in which a court definitively rules that you don't have the rights you think you have instead of leaving hope for a better result next time -- hardly a net benefit for plaintiffs.

[Beldar]

Dear Congress:

Mend it, but don't end it.