Cain, Patrick


Qualified immunity continues to confound and frustrate judges, lawyers, law professors, law students, and even those outside the legal industry. Much of this frustration results from outcomes that shock the conscience, such as when government officials are granted qualified immunity despite stealing money while executing a search warrant or when government officials lock a prisoner in a highly unsanitary cell for a week.

Legal scholars have examined two main areas within the qualified immunity doctrine: the common law origins and the clearly established prong of qualified immunity analysis. The common law origins of qualified immunity have been thoroughly examined, and until recently, it was thought there was no common law basis for qualified immunity. What was once a one-sided criticism has become a debate. Further, the clearly established test has finally been addressed by the Supreme Court in a recent per curium opinion.

However, another issue within qualified immunity deserves attention. Specifically, how the current standard from Pearson v. Callahan disserves present and future plaintiffs in § 1983 suits. Pearson allows courts to pass on a constitutional inquiry into whether a constitutional right was violated if the case could be resolved on another ground. In not determining whether a constitutional right exists, future plaintiffs will be unable to defeat qualified immunity because a court chose not to determine whether a constitutional right exists.

This article critically analyzes mandatory sequencing in qualified immunity and the reasons behind the Saucier v. Katz and Pearson decisions. Assuming that there is a common law foundation to qualified immunity and considering the lightening of the clearly established standard, I offer a solution to the future plaintiff problem of Pearson. A modified, mandatory sequencing that attempts to find a better balance between the goals of qualified immunity: a damages remedy to protect the rights of citizens against the need to protect officials in their discretionary acts.

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