The Branch Best Qualified to Abolish Immunity

Qualified immunity—the legal doctrine that shields government officials from suit for constitutional violations unless the right they violate “is sufficiently clear that every reasonable official would have understood that what he is doing violates that right”—has come under increasing judicial and scholarly criticism from diverse ideological viewpoints. This Essay considers the question of which branch of government should fix it. I take as a starting point the many critiques of qualified immunity and then turn to the question of whether courts should wait for Congress to reform this problematic doctrine. Do considerations of stare decisis or institutional competence counsel in favor in leaving to Congress the task of reform? I argue that they do not. In light of the Supreme Court’s persistent and pervasive involvement with the development of all aspects of modern qualified immunity doctrine, from its content to its scope to the manner and timing of its assertion and resolution in the courts, qualified immunity has become a special province of the Court rather than a mere byproduct of statutory interpretation that should be corrected (if at all) by Congress. The Court is best positioned to understand the effects of the doctrine on the development of constitutional law. Moreover, the criteria to which the Court traditionally looks in deciding whether it should overrule a precedent counsel in favor of judicial reform. The factual and legal foundations underlying qualified immunity have been eroded. The doctrine is unworkable, producing contradictions and confusions and stultifying the development of constitutional law. Although it is reasonable to assume that officers and municipal governments rely on the protection of qualified immunity for the protection of municipal coffers, the Court should not, and in prior cases did not, afford weight to a reliance interest in violating the Constitution. From Pierson to Pearson, qualified immunity is a mess of the Supreme Court’s making, and the Supreme Court should clean it up

Brief for Respondents. Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016) (No. 14-1146), 2015 WL 5634431

QUESTIONS PRESENTED 1. Whether, in this class and collective action for wage-and-hour violations arising out of an employer\u27s failure properly to compensate employees for time spent donning and doffing protective equipment and walking between sites where work was performed, the district court abused its discretion in granting certification where plaintiffs proceeded to prove the amount of work they did using individual timesheet evidence and representative proof concerning donning, doffing, and walking times in accordance with Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). 2. Whether a class or collective action may be certified when it contains members who may not have been injured

The Branch Best Qualified to Abolish Immunity

Qualified immunity—the legal doctrine that shields government officials from suit for constitutional violations unless the right they violate “is sufficiently clear that every reasonable official would have understood that what he is doing violates that right”—has come under increasing judicial and scholarly criticism from diverse ideological viewpoints. This Essay considers the question of which branch of government should fix it. I take as a starting point the many critiques of qualified immunity and then turn to the question of whether courts should wait for Congress to reform this problematic doctrine. Do considerations of stare decisis or institutional competence counsel in favor in leaving to Congress the task of reform? I argue that they do not. In light of the Supreme Court’s persistent and pervasive involvement with the development of all aspects of modern qualified immunity doctrine, from its content to its scope to the manner and timing of its assertion and resolution in the courts, qualified immunity has become a special province of the Court rather than a mere byproduct of statutory interpretation that should be corrected (if at all) by Congress. The Court is best positioned to understand the effects of the doctrine on the development of constitutional law. Moreover, the criteria to which the Court traditionally looks in deciding whether it should overrule a precedent counsel in favor of judicial reform. The factual and legal foundations underlying qualified immunity have been eroded. The doctrine is unworkable, producing contradictions and confusions and stultifying the development of constitutional law. Although it is reasonable to assume that officers and municipal governments rely on the protection of qualified immunity for the protection of municipal coffers, the Court should not, and in prior cases did not, afford weight to a reliance interest in violating the Constitution. From Pierson to Pearson, qualified immunity is a mess of the Supreme Court’s making, and the Supreme Court should clean it up

Protest During Pandemic: D.C. Police Kettling of Racial Justice Demonstrators

This report, "Protest During Pandemic: D.C. Police Kettling of Racial Justice Demonstrators on Swann Street," is a collaboration of the ACLU of the District of Columbia, Washington Lawyers' Committee for Civil Rights and Urban Affairs, and Sidley Austin LLP.On the evening of June 1, 2020, the Metropolitan Police Department (MPD) deployed significant force in and around Swann Street, a narrow residential street in Northwest D.C. to detain more than 200 people who had been protesting police brutality and excessive force in the wake of George Floyd's murder. These protesters were arrested on a single, common charge — violation of the Mayor's 7:00 p.m. curfew. Protesters were penned together in single residential city block and transported around the city for processing and arrest in vehicles that didn't allow for social distancing during the COVID-19 pandemic, putting their health and lives at unnecessary risk.The report is based on interviews with more than 50 individual eyewitnesses, including protestors who were kettled and Swann Street residents who witnessed the events from their homes. In addition, we reviewed photos and video footage taken during the June 1 events, as well as other evidence available from the existing public record. Based on this review, we have identified multiple serious questions raised by MPD's actions that night. The report also provides recommendations to the D.C. Council for police response to First Amendment assemblies