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Resolving The Qualified Immunity Dilemma: Constitutional Tort Claims For Nominal Damages, James E. Pfander

Faculty Working Papers

Scholars have criticized the Court's qualified immunity decision in Pearson v. Callahan on the ground that it may lead to stagnation in the judicial elaboration of constitutional norms. Under current law, officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the plaintiff can persuade the court that the conduct in question violated clearly established law. Pearson permits the lower courts to dismiss on the basis of legal uncertainty; it no longer requires the courts to address the merits of the constitutional question. This essay suggests that constitutional tort claimants should be permitted to avoid …