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98 Denv. L. Rev. 629 (2020-2021)
The Qualified Immunity Litigation Machine: Eviscerating the Anti-Racist Heart of Sec. 1983, Weaponizing Interlocutory Appeal, and the Routine of Police Violence against Black Lives

handle is hein.journals/denlr98 and id is 634 raw text is: THE QUALIFIED IMMUNITY LITIGATION MACHINE: EVISCERATING THE ANTI-RACIST HEART OF § 1983, WEAPONIZING INTERLOCUTORY APPEAL, AND THE ROUTINE OF POLICE VIOLENCE AGAINST BLACK LIVES DAVID G. MAXTEDt ABSTRACT This Article makes the case that twin plagues endemic to American law-the routine of police violence and its unequal impact on Black lives and other people of color-are rooted in the invention and application of qualified immunity by the courts and the legal profession. For the past four decades, the Supreme Court has eroded civil rights enforcement, echoing the late 1800s when the Supreme Court nullified the achieve- ments of our Second Founding following the Civil War. Congress passed 42 U.S.C. § 1983 to protect Black lives and civil rights from unlawful state-sanctioned violence amidst widespread racial terror. The Supreme Court's invention and expansion of qualified immunity in Harlow v. Fitzgerald and beyond has obstructed @ 1983's intended achievement. A grotesque judicial policy judgment underlies the doctrine: that it is in the interest of society as a whole to immunize unlawful police violence. Qualified immunity inscribes unlawful violence into the DNA of law enforcement. The Author offers several contributions to our understanding of qualified immunity and to the public dialogue regarding abolition. First, because qualified immunity undermines @ 1983's anti-racist goal to pro- tect Black lives and civil rights and given the pernicious unequal impact of police violence on persons of color, we should call it what it is: quali- fied immunity is a racist policy that lawyers and judges have perpetrated in communities across the nation. It must be abolished. Second, this Arti- cle identifies absurdity at the heart of qualified immunity doctrine, which protects officers from all but clearly established violations of law. The justification for qualified immunity is directly at odds with how it oper- ates, further supporting abolition. Third, through analysis of Tenth Cir- cuit qualified immunity appeals 2017-2020, this Article demonstrates the T David G. Maxted is a civil rights and criminal lawyer at MAXTED LAW LLC. Duke Uni- versity School of Law, J.D.; Duke University, M.A. Philosophy; Amherst College, B.A. The Author would like to thank Rachel Geiman and Tempest Cantrell for their extensive research assistance regarding the analysis of Tenth Circuit cases in Part III of this Article, as well as Nicole Godfrey, Elie Zweibel, Laura Wolf, and Stephen Shaw for their comments on prior drafts. The Author particu- larly would like to thank the editors and staff at the Denver Law Review for their patience and inval- uable work improving this Article. 629

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