Qualified Immunity's Boldest Lie

Qualified immunity shields government officials from damages liability—even if they have violated plaintiffs’ constitutional rights—so long as they have not violated “clearly established law.” The Supreme Court has explained that watershed cases describing legal requirements—like Graham v. Connor and Tennessee v. Garner—are alone insufficient to clearly establish the law. Instead, the plaintiff must find prior cases applying Graham and Garner to cases with facts virtually identical to their own case, explaining that such factually analogous cases are necessary to put officers on notice of the illegality of their conduct. But do officers actually know about the facts and holdings of these cases, and rely on them when taking action? Courts and commentators have been skeptical of this assumption, but it has never been tested.

This Article reports the findings of a study, the first of its kind, examining the role that circuit decisions applying Graham and Garner play in police officers’ policies, trainings, and briefings. Having viewed hundreds of police policies, training outlines, and other briefing materials provided to California law enforcement officers, I describe unequivocal proof that officers are not notified of the facts and holdings of cases that clearly establish the law for qualified immunity purposes. Instead, officers are taught the general principles of Graham and Garner and then are trained to apply those principles in the widely varying circumstances that come their way.

Moreover, even if law enforcement agencies made more of an effort to educate their officers about court decisions analyzing the constitutional limits of force, the expectations of notice and reliance baked into qualified immunity doctrine would be obviously unrealistic. There could never be sufficient time to train officers about all the court cases that might clearly establish the law. And even if officers were trained about the facts and holdings of some portion of these cases, there is no reason to believe that officers would analogize or distinguish situations rapidly unfolding before them to the court decisions they once studied.

There is a growing consensus among courts, scholars, and advocates across the ideological spectrum that qualified immunity doctrine is legally unsound, unnecessary to shield government officials from the costs and burdens of litigation, and destructive to police accountability efforts. This Article reveals another reason to reconsider the doctrine and, especially, its requirement that plaintiffs find clearly established law.