Would Eliminating Qualified Immunity Substantially Deter Police Misconduct?

MICHAEL C. DORF

Cornell law professor Michael C. Dorf discusses the proposal that eliminating or substantially reducing the qualified immunity currently enjoyed by police officers would address racism and police brutality. Although the idea has lately garnered some bipartisan support and could potentially have some benefit, Dorf describes two reasons to be skeptical of the suggestion. He concludes that for all of its flaws, qualified immunity may actually facilitate the progressive development of constitutional rights.

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United States v. Arterbury

Docket: 18-5085

Opinion Date: June 9, 2020

Judge: Gregory Alan Phillips

Areas of Law: Constitutional Law, Criminal Law

The federal government twice charged Scott Arterbury with the same crime for the same possession of child pornography. In the original prosecution, the district court suppressed the child-pornography evidence seized from Arterbury’s personal computer. The government appealed the suppression order but withdrew its appeal without filing a brief. Once back in district court, the government obtained an order dismissing the case without prejudice. Eight months later, in a case involving a defendant in a different state, the Tenth Circuit reversed an order suppressing child-pornography evidence obtained in reliance on the same FBI search warrant as at issue in Arterbury’s case. The government re-indicted Arterbury on the original child-pornography charge. Arterbury argued that the court was bound by collateral estoppel to enforce its earlier order suppressing the evidence. But the district court disagreed and later denied the motion to suppress on the merits. After review, the Tenth Circuit concluded the district court erred in its analysis of criminal collateral estoppel, and vacated the order denying Arterbury’s motion to enforce the original suppression order. The matter was remanded for the district court to enforce its earlier suppression order.