William & Mary Bill of Rights Journal
Abstract
Part I traces the history of qualified immunity and the doctrine’s analytical changes over time, detailing the twofold test as it currently stands. Part II considers Large and Sweetin, comparing the courts’ approaches to essentially similar scenarios and evaluating the differences in outcome. Part III addresses the Supreme Court’s denial of the Large plaintiffs’ petition for certiorari and explicates the “scope of authority” question the Court declined to address. Part IV breaks down the decision in Large and conducts the qualified immunity analysis anew, determining that the court misapplied the doctrine regardless of its failure to consider the scope of authority inquiry and concluding that had the court correctly followed the proper analysis (as demonstrated in Sweetin), the official in Large would have rightly been denied qualified immunity for committing an unconstitutional seizure.
Part V argues that courts justifying grants of qualified immunity to undeserving low-level officials through labeling each violated right as not clearly established will result in an over-broadening of the qualified immunity doctrine with potentially dire consequences for civil rights.
Part VI suggests solutions to end this slippery slope, including a return to the order of analysis in Saucier v. Katz, an addition of a good-faith element to the existing standard, and the inclusion of the scope of authority analysis. Finally, Part VII employs recent scholarship to consider whether qualified immunity deserves to be bolstered by these solutions, or if it should be abandoned altogether as a doctrine too bereft of benefit.
This abstract has been taken from the author's introduction.