According to the article, the doctrine of qualified immunity expanded in the 1960s. Remember that this was a time when new “constitutional rights” were popping up everywhere. Should local officials been held civilly liable for not informing Mr. Miranda of his Miranda rights before the Supreme Court announced that there was such a thing? Should Mr. Gideon have been awarded damages against the local prosecutor or judge because he was not appointed a lawyer free of charge before the Supreme Court determined that there was such a right?
I am generally in accord with this article and am not a big fan of qualified immunity, but there needs to be some recognition of the possibility of people being financially ruined for violating rights before those rights were created or recognized.
The law permitting suits against state authorities for violating your civil rights, has been ruled by judges in the Fourth Circuit (Virginia, North Carolina, etc.) to apply ONLY to descendants of former slaves.
This was the rubric by which federal Judge James Beaty threw out most of the suits by the Duke Lacrosse players against state employee Nifong.
When congress debated passing the law, the comments show they intended it to apply to everyone, even citizens from New England (specifically mentioned).
But for now, we have a two-tier legal system in some parts of the country.