Section 1983 gives people the right to sue a government official for violating their constitutional rights. Qualified immunity provides these same officials with an affirmative defense — even if they violated the constitution, they are not liable for monetary damages if the right at issue was not clearly established at the time of the alleged conduct. The qualified immunity is based upon the basic assumption that “a reasonably competent public official should know the law governing his conduct.” If the law was clearly established the official will be liable. If not, the Court has reasoned that it would be unfair to hold defendants liable because they could not be “expected to anticipate subsequent legal developments.” At least one legal scholar has argued that police, in fact, are not regularly informed of court decisions interpreting Fourth Amendment use of force decisions and, accordingly, do not know the law governing their conduct. This Article builds upon and develops that assertion. To better understand how police learn of new legal opinions the authors surveyed police departments across the country asking specific questions about officials’ legal training. Based upon the responding surveys, it seems unlikely that reasonable officials are aware of recent legal opinions governing their conduct. Nevertheless, this Article argues that these findings do not necessarily resolve whether government officials should be aware of the law governing their conduct. This depends on whether qualified immunity is understood as a positive or normative standard. The authors conclude that the Supreme Court’s qualified immunity doctrine sets forth both positive and normative notions—what is (positive) and what ought to be (normative)—and then distorts them both. Qualified immunity does not operate as a true normative standard because it is so far removed from any real ideal. It also fails as a positive standard because it is divorced from reality. The result is an illogical and unworkable doctrine.

第 1983 条赋予人们起诉违反宪法权利的政府官员的权利。合格豁免权为这些官员提供了肯定的辩护——即使他们违反了宪法，如果在涉嫌行为时未明确确立相关权利，他们也不承担金钱损失。有条件的豁免是基于“一个相当称职的公职人员应该了解管辖其行为的法律”的基本假设。如果法律明确规定，官员将承担责任。如果不是这样，法院的理由是让被告承担责任是不公平的，因为他们不能“预期随后的法律发展”。至少一位法律学者认为，事实上，警察不知道管理他们行为的法律。本文建立在并发展了这一主张。为了更好地了解警方如何了解新的法律意见，作者调查了全国各地的警察部门，询问有关官员法律培训的具体问题。根据响应调查，理性的官员似乎不太可能知道最近关于其行为的法律意见。然而，本文认为，这些调查结果不一定能解决政府官员是否应该了解管理他们行为的法律。这取决于合格豁免是否被理解为积极的或规范的标准。作者得出的结论是，最高法院的限定豁免原则既提出了积极的概念，也提出了规范的概念——什么是（积极的）和什么应该是（规范的）——然后扭曲了它们。合格的免疫不能作为真正的规范标准运作，因为它与任何真正的理想相去甚远。它作为一个积极的标准也失败了，因为它脱离了现实。结果是一个不合逻辑和不可行的学说。