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Monday, September 18, 2017

JOTWELL: Smith on Baude on Qualified Immunity

The new Courts Law essay comes from new contributor Fred Smith (Emory), reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev.  (forthcoming 2018). This is a great article that Justice Thomas citing in his concurring opinion in Ziglar and that I cited to extensively in updating the immunity sections of Civil Rights book.

Posted by Howard Wasserman on September 18, 2017 at 04:14 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink


Thanks for the post , the point is , that the 42 U.S. Code § 1983 defines apparently the intent and action of an official as " under color of any statute " . Under color is very vague definition . The mental state of such official is very critical . In reality , a variety of different mental states can be demonstrated . So , clearly violating an established right of a citizen , is far from being sufficient . More important is the intent , or mental state of such official as wrongdoer . Such wording " color " is very problematic.

One can illustrate it , simply by definition of malice ( which is the highest degree of wrong doing ) . In the case of Sara palin Vs. NYT , the judge insisted on the definition of malice as :

" maliciously, that is, with knowledge it was false or with reckless disregard of its falsity. "

So , we can learn , that even clear malice , is not so simple as an apple , and is extended beyond ordinary meaning of it of course .


Posted by: El roam | Sep 18, 2017 9:35:54 PM

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