Policing Suspicion: Qualified Immunity and "Clearly Established" Standards of Proof

Authors

Seth W. Stoughton, University of South Carolina School of LawFollow
Kyle McLean, Clemson UniversityFollow
Justin Nix, University of Nebraska OmahaFollow
Geoffrey P. Alpert, University of South Carolina - ColumbiaFollow

Publication Date

Winter 2022

Volume

112

Document Type

Article

Abstract

This Article explores the intersection of Fourth Amendment standards of proof and the “clearly established” prong of qualified immunity. It illustrates how the juxtaposition of the Court’s insistence on a low level of specificity for the development of suspicion and a high degree of specificity for the imposition of liability makes it exceedingly difficult to hold officers accountable for violating constitutional rights. And it offers both a path for future research into the development of suspicion and suggestions for methods that police agencies can use to improve the development and articulation of suspicion. Ultimately, it contends that policing in the 21st century must take seriously the idea that the Constitution is a floor, not a ceiling, and it calls for the development of more rigorous standards for police actions.

Recommended Citation

Seth W. Stoughton , Kyle McLean, Justin Nix & Geoffrey Alpert, Policing Suspicion: Qualified Immunity and "Clearly Established" Standards of Proof, 112 J. CRIM. L. & CRIMINOLOGY 37 (2022).

Comments

Copyright © 2022 by Seth W. Stoughton, Kyle McLean, Justin Nix & Geoffrey Alpert