Gregory C. Sisk (University of St. Thomas School of Law (Minnesota)) has posted How Qualified Immunity Condones Rogue Behavior by Government Officers on SSRN. Here is the abstract:
The defense of qualified immunity is justified as protecting a government officer from personal liability when the officer reasonably if mistakenly engaged in official acts that later are determined to have been wrongful. And yet the federal courts have allowed the defense of qualified immunity to be invoked by officers who have engaged in blatant misconduct by breaking the criminal law, disregarding state statutes, or violating agency regulations and department policies. Unless the constitutional prohibition has been clearly established by precedent in cases with nearly identical facts, the officer’s violation of other legal norms of behavior is regarded as irrelevant.
Qualified immunity thereby encourages rogue behavior. A lawless officer escapes accountability, and the victim is left without a remedy. A judicial bypass of the merits by a qualified immunity ruling leaves the door open to repeated lawless behavior with impunity.
To ultimately prevail on the civil rights cause of action, the plaintiff must establish that the officer’s conduct did indeed cross a constitutional line. But the question of constitutional tort liability should not be side-tracked by a qualified immunity defense granted to a miscreant officer when the most straight-forward indicia of legal wrongdoing is state law.
When the officer is a law-breaker rather than a law-enforcer, the very reason for qualified immunity evaporates. By transgressing state law that specifically prescribes the course of action, the officer can no longer plead innocent mistake and consequently should forfeit the qualified immunity defense.
Highly recommended.