The recent Federal Bar Association Northern District of Ohio Newsletter featured a short Note from Clinical Professor of Law, Doron Kalir. The Note, titled “The Qualified Immunity Paradox and the Sixth Circuit Moderwell Opinion,” discusses the requirement of “clearly-established law” which a plaintiff needs to show in order to overcome a qualified immunity defense.
This requirement – in essence, asking a plaintiff to show that someone else in their shoes has already prevailed in similar circumstances – may lead to an infinite regression paradox: Assume, for example, that a police officer continuously places his knee on the neck of a restraint suspect, who is also handcuffed, for eight minutes and 46 seconds, causing the suspect’s death; assume, in addition, that this set of “particular circumstances” has never occurred before. How, then, could a § 1983 plaintiff prevail over a qualified immunity defense in such circumstances?
The Note discusses this paradox and the ways in which the Supreme Court, and now the Sixth Circuit, have begun to resolve it. The Note can be found on pages 8-10 of the Newsletter.