(The Return of) Ignatz, by Sam Heldman

Saturday, July 27, 2002

Qualified immunity in the Eleventh Circuit The latest sign that I am a true law nerd (aside from the fact that I'm writing this before 6 am on a Saturday) is that I am awaiting, with bated breath, the Eleventh Circuit's first post-Hope v. Pelzer qualified immunity decision. Qualified immunity, of course, is the judicially-created doctrine that 42 U.S.C. sec. 1983 -- which says flatly that anyone who violates my constitutional or statutory rights under color of state law is liable to me for damages -- doesn't really mean what it says, in that they're only liable if the violation of law was "clearly established". (You can cite the qualified immunity doctrine to anyone who says that only liberal judges do anything other than simply read the statutes and apply them according to their obvious meaning). For many years, the Eleventh Circuit has taken a very tough line on this -- tough on plaintiffs, that is. It's been QUITE hard to convince most panels of that Court that a proposition is clearly established unless there's a prior reported Eleventh Circuit (or state supreme court) case on all fours. Hope, the Supreme Court's end-of-term decision holding that the prohibition against chaining a prisoner to a hitching post in the hot sun was "clearly established", either changes that drastically, or doesn't, depending on how the Circuit will read it; and it's amazing to me that no panel has so far been eager, in the month since Hope was issued, to get the first (and therefore potentially dispositive, given the prohibition against one panel overruling another) word on what Hope means. Stay tuned.

posted by sam 6:04 AM 0 comments


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