POLICING SUSPICION: QUALIFIED IMMUNITY AND “CLEARLY ESTABLISHED” STANDARDS OF PROOF

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.