Qualified Immunity and Constitutional-Norm Generation in the Post-Saucier Era: “Clearly Establishing” the Law Through Civilian Oversight of Police

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  • August 3, 2015

Since the Supreme Court ended the mandatory merits-first approach instituted in Saucier v. Katz, scholars have argued that the development of constitutional norms could come to a standstill. In this Note, Mr. Meltzer argues that the work of civilian external investigatory oversight bodies can serve as at least a partial antidote to this possible constitutional stasis. In particular, Mr. Meltzer advocates for the investigative findings and policy recommendations of agencies like the New York Civilian Complaint and Review Board to be given at least the same weight as internal police regulations and advisory reports by external compliance agencies, and possibly as much weight as regional appellate court opinions, in the qualified immunity analysis. Mr. Meltzer goes on to show that not only is this proposal consistent with the purposes of § 1983 litigation and the qualified immunity doctrine, but the work it envisions is already taking place at oversight boards around the nation. He then argues that the sole structural changes necessary to optimally implement this proposal relate to the formalization and publication of the agencies’ findings and recommendations.