Two Recent en banc Decisions Exemplify the Injustice, Impracticality, and Persistent Confusion Inherent to Qualified Immunity

In the last week, the Fifth and the Eighth Circuits, sitting en banc, have each issued major, fractured decisions on the subject ofqualified immunity– the judge-made defense to civil rights claims underSection 1983,  which shields state actors from liability for their misconduct, even when they break the law. InCole v. Hunter, decided yesterday, the Fifth Circuit, in an 11-7 decision, affirmed the denial of summary judgment for two defendant police officers, who shot a teenage boy and then lied about what happened. The lawsuit brought by the victim and his family will therefore be able to go to trial, making this one of the rare instances where a civil rights plaintiff is able to overcome qualified immuniity. But inKelsay v. Ernst, decided last week, the Eighth Circuit held, 8-4, that a police officer was entitled to qualified immunity, after he had grabbed a small woman in a bear hug and slammed her to ground – because she walked away from him. Although the courts here reached different outcomes, both cases amply illustrate the legal, practical, and moral infirmities with qualified immunity. The fractured decisions and many separate opinions in both cases also make clear that the doctrine is on increas ingly shaky footing with both the judiciary and the general public.I.Cole v. Hunter:  A rare but narrow victory for a victim of egregious police misconductThis Fifth Circuit case arose out of an incident in Garland, Texas in October 2010, when police were looking for Rya...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs