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A Call to Clarify the “Scope of Authority” Question of Qualified Immunity

Article by Pat Fackrell (November 26, 2019)

It is no secret the doctrine of qualified immunity is under immense scrutiny. Distinguished jurists and scholars at all levels have criticized the doctrine of qualified immunity, some calling for it to be reconsidered or overruled entirely.

Amidst this scrutiny lies uncertainty in the doctrine’s application. Specifically, the federal courts of appeal are split three ways on the question of whether an official exceeding the official’s scope of authority under state law at the time of the alleged constitutional violation can successfully assert qualified immunity. Some courts of appeal do not require the official to demonstrate he acted within the scope of his authority. Other courts of appeal require the official to identify state law affirmatively authorizing, and narrowly tailored to, his discrete acts. Still other courts of appeal hold that the official must demonstrate he acted within the clearly established scope of his authority.

This Article suggests that the third approach requiring the official to demonstrate he acted within the clearly established scope of his authority—should be adopted. Adopting this approach would bring clarity and equilibrium to the doctrine of qualified immunity at a critical time, while also leaving the important doctrine in place. And, of all three approaches, the third approach best comports with the tradition of immunity, most closely aligns with the history and purpose of key civil rights laws, and presents the most workable rule.

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