Professor Mark Brown's latest article, "The Fall and Rise of Qualified Immunity: From Hope to Harris," published by the Nevada Law Journal

April 21, 2009

The latest article published by Newton D. Baker/Baker & Hostetler Chair of Law Mark Brown explores the implications of the Supreme Court's recent holding in Scott v. Harris (2007), which appears to authorize interlocutory appellate fact-finding in section 1983 cases filed in federal court.

In his article, Brown includes an empirical comparison of cases decided in the Sixth and Eleventh Circuits between the Supreme Court's holding in Hope v. Pelzer (2002) and Scott v. Harris (2007).

"Data from those Circuits shows that race- and gender-based claims have the lowest qualified immunity rates, followed by Eighth Amendment 'deliberate indifference' claims, Fourth Amendment 'excessive force claims,' First Amendment 'speech' claims, Fourth Amendment 'search and seizure' claims, Procedural Due Process claims, and Substantive Due Process claims, in that order," Brown explains. "Data also shows that qualified immunity is much less common in the Sixth Circuit (which includes Ohio, Michigan, Kentucky and Tennessee), than the Eleventh Circuit (which includes Florida, Georgia and Alabama)."

Professor Brown is co-author of the book, “Constitutional Litigation Under § 1983,” as well as several articles addressing various constitutional issues, including religion, elections, parents’ rights, gender discrimination and government’s financial liability for the wrongs it inflicts. For 18 years, he was a cooperating attorney with the ACLU Foundation of Florida, Inc. and has litigated many pro bono cases. He clerked for the Honorable Harry W. Wellford of the United States Court of Appeals for the Sixth Circuit and was a Judicial Fellow at the Supreme Court of the United States.

[ Read the Article (PDF) ]