BRENNAN CENTER'S STATE COURT REPORT PUBLISHES TWO ARTICLES ON ABOLISHING QUALIFIED IMMUNITY BY PROFESSOR GILDIN
June 2024 — The Brennan Center’s State Court Report has published two articles by Professor Gary S. Gildin that offer avenues to preclude the qualified immunity defense in actions to recover damages for invasions of rights guaranteed by a state constitution. The State Court Report is a nonpartisan resource promoting awareness, understanding, and discussion about state constitutions.
As Montana Supreme Court Justice Nelson recognized, “If an individual’s constitutional rights can be violated by [state officials] secure in the knowledge nothing will come of the wrongdoing, then it follows that the constitution . . . is but a collection of elegant words without substance; it is a shield made of little more than aspirations and hopes.” Dorwart v. Caraway, 58 P. 3d 128 (Mont. 2002). The defense of qualified immunity frees state and local officials who violate rights secured by the constitution from liability for damages. However, given obstacles to recovery against governmental entities, qualified immunity often leaves the innocent victim of constitutional wrongdoing without any remedy.
In earlier articles, Professor Gildin argued that in formulating the contours of civil actions for violation of the state constitution, states need not and should not blindly adopt the United States Supreme Court’s remedy-defeating jurisprudence on qualified immunity applicable to actions seeking damages for deprivation of rights guaranteed by the United States Constitution. See “A Primer on Advocating Independent State Constitutional Remedies,” Brennan Center for Justice State Court Report (February 27, 2024); “Redressing Deprivations of Rights Secured by State Constitutions Outside the Shadow of the Supreme Court’s Remedies Jurisprudence,” 115 PENN STATE LAW REVIEW 877 (2011). In the article “Legislative Efforts to Abolish Qualified Immunity Yield Mixed Results” (May 30, 2024), Professor Gildin reviews the varied outcomes of efforts to outlaw the defense of qualified immunity by state statute. In “Paths Toward Abolishing Qualified Immunity for Violations of State Constitutional Rights” (June 25, 2024), Gildin assesses two additional means of preempting immunity — rulings from the state judiciary and amending the state constitution.
Professor Gary S. Gildin teaches Civil Liberties Litigation as well as Protection of Individual Rights Under State Constitutions. He is the author of Religious Freedom Under Article I Sections 3 and 4 of the Pennsylvania Constitution, published in THE PENNSYLVANIA CONSTITUTION: A TREATISE ON INDIVIDUAL RIGHTS AND LIBERTIES, Ken Gormley and Joy G. McNally eds. (Second Edition 2020) and contributed to the Brief of Amici Curiae Law Professors David S. Cohen, Gary S. Gildin, Seth F. Kreimer, Jules Lobel, Robert Reinstein in William Penn School District et al. v. Pennsylvania Department of Education et al., No. 587 M.D. 2014 (Commonwealth Court of Pennsylvania), in which Judge Renee Cohn Jubelirer ruled that the system of funding public education violated the fundamental right to meaningful education under Pennsylvania Constitution.