QUALIFIED IMMUNITY FORMALISM: “CLEARLY ESTABLISHED LAW” AND THE RIGHT TO RECORD POLICE ACTIVITY

njdiver

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QUALIFIED IMMUNITY FORMALISM: “CLEARLY ESTABLISHED LAW” AND THE RIGHT TO RECORD POLICE ACTIVITY

This Note critiques qualified immunity doctrine in the context of the First Amendment right to record public police activity. Part I describes the relevant legal background, beginning with the definition of “clearly established law,” and then examining its application to the right to record police activity. Part II assesses the prevailing qualified immunity framework in light of the contemporary state of the law on the right to record. This Part finds that the formalist definition of clearly established law deviates from the policy considerations undergirding qualified immunity, impedes the development of First Amendment jurisprudence, and deters valuable social activity. Lastly, Part III proposes an alternative framework in which a “robust consensus of persuasive authority” suffices to establish federal law.

 

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