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75 Fla. L. Rev. 1 (2023)
Fair Notice, the Rule of Law, and Reforming Qualified Immunity

handle is hein.journals/uflr75 and id is 1 raw text is: FAIR NOTICE, THE RULE OF LAW, AND REFORMING QUALIFIED IMMUNITY Nathan S. Chapman* Abstract After a series of highly publicized incidents of police violence, a growing number of courts, scholars, and politicians have demanded the abolition of qualified immunity. The doctrine requires courts to dismiss damages actions against officials for violating the plaintiff's constitutional rights unless a reasonable officer would have known that the right was clearly established. Scholars argue that the doctrine forecloses compensation and vindication for victims and stands in the way of deterring constitutional violations in the future. One argument against qualified immunity has relied on empirical evidence to challenge what scholars take to be the main justification for qualified immunity: it prevents the threat of constitutional liability from over-deterring effective law enforcement. Yet the Supreme Court of the United States has always offered another rationale for the doctrine: it would be unfair to hold officers liable without sufficient notice that their conduct was unconstitutional. Unlike the overdeterrence rationale, scholars have almost entirely ignored the fair notice rationale for qualified immunity. This Article assesses the extent to which the fair notice rationale supports the current doctrine of qualified immunity. It does so by exploring the limits of the jurisprudential principle of prospectivity, which holds that the law must ordinarily apply only prospectively. To approximate the rule of law and to treat subjects with equal dignity, the law must be capable of guiding conduct. The principle of prospectivity obviously applies to retroactive legislation. This Article makes the novel case that unpredictable adjudications also fail to provide such guidance and that they are especially unfair when they impose retroactive moral condemnation. Constitutional liability is often highly unpredictable, * Pope F. Brock Associate Professor of Professional Responsibility, University of Georgia School of Law. I am grateful for the helpful suggestions from participants at workshops at the Stanford Constitutional Law Center, the 2022 National Conference of Constitutional Law Scholars at the University of Arizona, and the Nootbaar Fellows at Pepperdine School of Law, and at a seminar at Oxford University hosted by the Programme for the Foundations of Law & Constitutional Government. Thank you also for comments on earlier drafts to Kent Barnett, Will Baude, Richard Ekins, Timothy Endicott, Dick Fallon, Joel Johnson, Tara Leigh Grove, Hillel Levin, Chris Lund, Thomas Kadri, Sandy Mayson, Joe Miller, Aaron Nielson, Brandon Paradise, Jeff Powell, Micah Schwartzman, Liz Sepper, Fred Smith, Lael Weinberger, and Simon Yarza. I am grateful for terrific research assistance from Aaron Court, Kirstiana Perryman, Akash Shah, and Austin Weatherly, and the institutional support of the deans and librarians of the University of Georgia School of Law.

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