Qualified Immunity: Time to Change the Message

This Essay will proceed in four parts. Parts I, II, and III will highlight, through some recent illustrative cases, areas where the qualified immunity defense has been especially ineffective and inefficient by: (Part I) hampering the development of constitutional law and impeding the redress of constitutional wrongs; (Part II) draining resources of litigants and courts through interlocutory appeals that are frequently without merit and often jurisdictionally suspect; and (Part III) breeding confusion into the roles of the judge and the jury in our judicial system, effectively enhancing the judge’s role at the expense of the constitutional right to jury trial. Each criticism will be followed by a brief recommendation for change to the current doctrine that might ameliorate some of the problems identified in each Part. But, my conclusion, in Part IV, consistent with that of Professor Chen’s in this Issue, is that the doctrine of qualified immunity is beyond repair. Thus, I urge the Court to make the reformation of its qualified immunity doctrine unnecessary by revisiting and revamping another of its confusing creations, the doctrine of municipal liability under Section 1983