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By: Sara Brochstein
President Trump announced his decision to nominate Judge Brett Kavanaugh to fill the Supreme Court vacancy created by Justice Anthony Kennedy’s retirement. Should he be confirmed, Judge Kavanaugh could have significant impact on the preservation of qualified immunity, which continues to come under fire of late. Essentially, the defense of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Given the current climate with unending allegations of excessive use of force by police, the call for reconsideration of the expansive protection offered by qualified immunity has become widespread. And whether officers remain entitled to qualified immunity under the current parameters of the doctrine has substantial effect on civil litigation outcomes and potential damage awards.
Such a hot button issue continues to present itself to the Supreme Court. In fact, just one year ago, Justice Clarence Thomas wrote separately in the Court’s decision in Ziglar v. Abbasi, stating that in an appropriate case, the Court should reconsider its qualified immunity jurisprudence. It will be interesting to see how the Court evolves in its decisions to uphold officers’ entitlement to qualified immunity, especially given continuing outspoken public perception on the issue. However, if Judge Kavanaugh’s recent dissent in Wesby et al. v. District of Columbia et al. is any indication of his views of qualified immunity and the position he would take as a Justice, it appears qualified immunity could endure as a strong defense given that the Supreme Court ultimately sided with the dissent.
If you have any questions or would like more information, please contact Sara Brochstein at [email protected].