NCJ Number
123483
Journal
Cincinnati Law Review Volume: 58 Issue: 1 Dated: (1989) Pages: 243-262
Date Published
1989
Length
19 pages
Annotation
This comment examines the availability of the qualified immunity defense to law enforcement officials in excessive force cases brought under 42 U.S.C. section 1983.
Abstract
The Supreme Court's standards for qualified immunity are examined. The defense is granted liberally to higher ranking officials of the executive branch, but the author argues that the defense is increasingly being made available to law enforcement officers. The Supreme Court has never ruled on the availability of the defense in excessive force cases; thus the lower courts have relied on Supreme Court cases that generally allow the defense. It is asserted that the defense is granted too easily due to a misinterpretation of good faith standards articulated at the Supreme Court level; a misapplication of case law that allows the defense to excessive force cases, and a general attitude of the courts that police officer's judgments should not be second-guessed. It is claimed that the present standard for granting the defense raises the burden of proof of the plaintiff to the point where she must show, at the summary judgement stage, an intent on the part of the police officer to unconstitutionally use excessive force, which could transform the defense to absolute immunity. 137 footnotes.