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The New Qualified Immunity Quandary

With increased media coverage of excessive force cases we may someday achieve meaningful reform of the qualified immunity doctrine. But with Congress’ inability to accomplish major legislation in the current political climate it is doubtful that qualified immunity will be reformed, much less abolished, anytime in the near future. Unless—or until—Congress figures out a way to meaningfully reform qualified immunity we are left with the patchwork of decisions from the federal appellate courts. Qualified immunity cases and scholarship are riddled with wildly varying approaches to what constitutes “clearly established law” and whether courts should return the mandatory sequencing in Saucier v. Katz. Qualified immunity, for better or worse, is the “gift” that keeps on giving. 
 
These issues aside, it is no secret that qualified immunity protects “all but the plainly incompetent.” Should it, however, protect those who—for competency or other reasons—choose not to raise the defense? Enter a new quandary: sua sponte qualified immunity. As more § 1983 cases crowd the federal docket and as the Supreme Court’s disdain for these cases grows, some appellate courts have been raising the issue of qualified immunity sua sponte to either avoid constitutional issues or simply in an attempt to clear their dockets. 
 
I propose that the review of this practice is ripe for the Supreme Court’s attention and that the correct approach is for appellate courts not to raise qualified immunity sua sponte. I argue that failure for the Supreme Court to act to invalidate sua sponte qualified immunity will effectively shut the doors for plaintiffs seeking vindication of constitutional rights under § 1983.