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Professor Barry McDonald Interviewed on Qualified Immunity -- WORLD Radio

Professor Barry P. McDonald was interviewed on the program, "Legal Docket - Qualified Immunity," for WORLD Radio. The program examines the qualified immunity defense that prevents government officials from personal liability for constitutional-rights violations in some circumstances.

Excerpt from "Legal Docket - Qualified Immunity"

Barry McDonald is a Constitutional Law professor at Pepperdine University. He walks us through the Harlow case.

BARRY MCDONALD: Harlow v. Fitzgerald was a lawsuit by Mr. Fitzgerald who was an analyst for the Air Force who testified before Congress that the Air Force was essentially hiding big cost overrides that were happening on a Lockheed jet that was being developed under contract with the federal government. So it was a big allegation of misconduct by the Air Force.

The Air Force fired Fitzgerald for exposing the misconduct.

He sued President Nixon and some of his aides for violating his First Amendment free-speech rights.

The Court held that the presidential aides were entitled to a qualified immunity defense. In order for Fitzgerald to overcome it—

MCDONALD: You have to be able to say that a reasonable officer should have known that somebody's rights were clearly established and being violated in a particular situation before you can say that they don't have qualified immunity.

So: Section 1983 says you can sue a government official for violating your rights. But then qualified immunity says, well, yes, you can sue, but you've got to jump a huge hurdle to get a remedy!

Over the years, the Court made incremental adjustments to the doctrine. The Court applied the modern doctrine in the 2018 case Kisela v. Hughes.

MCDONALD: Where in Kisela we had an incident in Tucson, Arizona, where the police had received reports of a woman acting erratically and stabbing a tree with a knife, and so they went to the scene and when they got there they saw a woman standing by a tree and another woman about five yards away...

Amy Hughes was the woman acting erratically. Police officer Andrew Kisela told her to drop the knife. She didn't. Kisela shot her four times. She survived her gunshot wounds and sued. The Supreme Court said qualified immunity shields Kisela from liability. His conduct didn't violate clearly established law.

MCDONALD: You have to look at the specific conduct and the specific sort of situation that the officer was facing before you say that he should've known he was clearly violating this person's constitutional rights by shooting her, and when we look at the cases we don't see a case that's close enough on point.

The complete interview may be found here