Channels, Fall 2017

Page 72 Minich • The Right Balance: Qualified Immunity and Section 1983 excessive force, but did not state definitively that such conduct did in fact amount to a constitutional violation” (internal citation and quotation marks removed). 109 Thus, based on the broad view of qualified immunity protection embodied in more recent cases, the Fourth Circuit upheld the District Court’s award of qualified immunity for Garrison. This is despite the fact that, in the judge’s words, “I would not hold, must less suggest, that Appellee’s deployment of [his police dog] complied with the Fourth Amendment.” 110 For those concerned with constitutional rights articulation, this raises important questions. If the Fourth Circuit was able to articulate a discrete legal question about Garrison’s actions, why did they not take the chance to answer it? Even in this case, they posit that no analogous precedent exists for the undeserved harm done to Maney. This alone, then, should be reason enough to offer legal guidance for similar future situations. Otherwise, this area of law remains just as obscure as the court argues it was when the alleged violation took place. Furthermore, what should courts focus on when determining whether or not the right in question has been particularly established? As expressly stated in Hope (and arguably implied in Anderson ), the crux would be fair notice for officers. 111 However, for the court in Maney , the main focus is the al-Kidd approach: whether or not they can find case law that applies so particularly that it cannot be distinguished from the case at hand in any meaningful way. Improving the System: Accountability, Rights Articulation, and Standards With both its advantages and pitfalls, qualified immunity jurisprudence could be improved in the areas of accountability, rights articulation, and standards for both reaching the merits and discerning the correct application of particularity. The changes sought in these areas should adhere to the role of the judiciary, meaning that they do not rest on individual desired outcomes but on consistency and fairness. While judges may not relish the idea of imposing liability on officers who made poor split-second decisions, § 1983 jurisprudence ought to be based on a fair balance of interest that remediates and establishes law in an even-handed and predictable way. Judges also need not allow their jurisprudence to be clouded by considering too heavily the costs of liability, since “Police officers are virtually always indemnified.” 112 This means that mercy on a particular officer in a § 1983 case is really only a break for the municipality who would have been required to pay the judgment against an officer. Thus, increasing the qualified immunity protection for officers ultimately could serve to disincentivize robust training and appropriate disciplinary steps by local governments, all while denying plaintiffs their just remediation. 109 Ibid., 13. 110 Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991); Maney v. Garrison at 22 (citing the district court’s decision, J.A. 383). 111 Hope v. Pelzer at 741. 112 Joanna C. Schwartz, “Police Indemnification,” New York University Law Review 89 (2014): 885-1005, at 890.