Over the past fifty years, the qualified immunity doctrine has greatly expanded. Originally intended as a modest good-faith exception for state actors, its current formation represents a systematic barrier to plaintiffs’ ability to recover for constitutional rights violations. The consequences of expanded qualified immunity are made painfully clear when applied to child welfare litigation where, despite troubling allegations of neglect, recovery remains uncertain.
In search of a more workable path forward, research reveals courts’ emphasis on pursuing their intuitions of fair notice and morality when resolving the two-pronged qualified immunity inquiry articulated most recently in Pearson v. Callahan. Courts appear especially motivated to grant qualified immunity when state actors render decisions in emergency settings and often deny the defense when no such circumstances exist. Such conditions sometimes even prevail at the expense of concrete legal reasoning.
To resolve this problem, this Note recommends a third qualified immunity prong which accounts for courts’ deference to state actors responding to emergencies. Such an addition makes explicit courts’ moral intuitions deferring to state actors’ emergency response while also placing a demanding burden on defendants to justify their behavior. This limits courts’ protection of unconstitutional state action while ensuring clearer paths to recovery for vulnerable plaintiffs.
a. J.D. Candidate, 2022, University of Illinois College of Law; A.B., 2017, Georgetown University. Thank you to the University of Illinois Law Review staff, members, and editors for their tremendous hard work on this Note. I would also like to thank Professor Jamelle Sharpe for his instrumental guidance throughout the writing process. This Note is dedicated to my parents, Dee and Paul, for their constant love and support.
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