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Old May 29, 2012, 10:02 PM   #74
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Join Date: July 26, 2005
Location: The Bluegrass
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Although it appears to be a moot point at this time, I'm going to chime in on the nature of qualified immunity. It is not necessary for a court to have declared the precise statute unconstitutional before one enforcing the statute may lose qualified immunity. The issue is whether "in the light of pre-existing law the unlawfulness must be apparent." To use an extreme example, police officers would not be entitled to qualified immunity simply because a new state law authorized them to shoot members of a racial minority on sight.

Here's a quote from a case on qualified immunity regarding a search, not a statute:

What this means in practice is that “whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U. S. 635, 639 (1987) (citing Harlow, supra, at 819); see also Graham v. Connor , 490 U. S., at 397.

In Anderson , we explained that what “clearly established” means in this context depends largely “upon the level of generality at which the relevant ‘legal rule’ is to be established.” 483 U. S., at 639. “Clearly established” for purposes of qualified immunity means that “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id., at 640 (internal citations omitted); see also United States v. Lanier , 520 U. S. 259, 270 (1997) .
Wilson v. Layne, 526 U. S. 603, 615 (1999) (emphasis added, publicly available copy at

I have not analyzed the bill that was introduced (and now apparently dropped) to see if is close enough to the former statute to strip an enforcing officer from qualified immunity.
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