Reasonable Person Standard for Qualified Immunity
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Barnes, Bailey D.
INTRODUCTION|This Article takes aim at qualified immunity. Certainly, ridding United States jurisprudence of the defense altogether is the most preferable outcome for those who wish to see injured parties compensated for the harm they suffered at the hands of the arms of the state. This type of reform is not likely to occur, however. With that in mind, this Article argues that the “clearly established right” standard is unworkable, unduly burdensome, and out of step with reality. It is plainly unrealistic to maintain that police officers are amply familiar with constitutional law and criminal procedure that law enforcement may ever be deemed on notice of established precedent in those areas of the law. The woeful lack of training given to officers in these doctrines makes it difficult to maintain that law enforcement personnel are aware that their actions violate the constitutional rights of those with whom they are interacting. Given this near-axiomatic proposition, Congress or the Supreme Court of the United States should provide a more workable standard that does not leave injured citizens holding the bag.
Creighton University School of Law