Qualified immunity is a judicially created doctrine that has resulted in expansive protections for lower-level state officials for constitutional violations. Guidance from the Supreme Court of the United States regarding the interpretation of "clearly established rights" has been scarce and vague at best. As a result, district courts faced with qualified immunity assertions regarding a § 1983 claim take a restrictive approach to the doctrine's analysis often by relying on factually similar cases from binding authorities. Historically, innocent bystanders have had no clearly established right to be free from excessive force where force was applied to subdue the target of the arrest, but what if the force is intentionally applied to the innocent bystander?
In 2019, the United States Court of Appeals for the Eleventh Circuit determined in Corbitt v. Vickers that officers who target innocent bystanders are entitled to qualified immunity. Previously, courts evaluated the applicability of qualified immunity where officers exerted force on the subject of the arrest. The decision in Corbitt v. Vickers short-circuits legitimate claims against officers who use lethal force on innocent bystanders complying with police commands. The Eleventh Circuit determined an innocent bystander's right to be free from excessive force is not "clearly established." An officer can shoot a complying bystander and enjoy the government shield of immunity. In a country facing police shootings and brutality, such protections make room for much more dangerous waves of lethal force application. As a judicially created doctrine contradicting legislative intent, qualified immunity already has an unstable justification. The judicial power to fix all that is wrong with qualified immunity rests with the Supreme Court—thanks to stare decisis.
Jameson M. Fisher, Casenote, Shoot at Me Once: Shame on You! Shoot at Me Twice: Qualified Immunity. Qualified Immunity Applies Where Police Target Innocent Bystanders, 71 Mercer L. Rev. 1171 (2020).