70 Am. U. L. Rev. 2091 (2021).

* Articles Editor, American University Law Review, Volume 71; J.D. Candidate, May 2022, American University Washington College of Law; B.A. English and French, 2014, Wellesley College. I cannot thank everyone enough for all their support and effort on my behalf, but I would like to especially thank my editor, Cassie Chee, and my faculty advisor, Professor Stephen Wermiel. I would also like to express my appreciation to the entire American University Law Review staff for their constructive and thought-provoking feedback. To my parents, thank you for all your patience and support.


In the wake of last summer’s George Floyd protests, qualified immunity is once again at the forefront of the debate. Officials, such as police officers, can raise qualified immunity as an affirmative defense in response to allegations that they have violated an individual’s constitutional rights. The different interpretations of qualified immunity’s meaning, use, and scope among the circuit courts have contributed to the development of strong opinions on both sides of the defense.

Particularly, circuit courts are split over who bears the burden of establishing qualified immunity when defendants use it as a basis for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Two recent decisions from the Eighth and Eleventh Circuits demonstrate this split. In Dadd v. Anoka County, the Eighth Circuit held that defendants have the burden of establishing qualified immunity in their motions to dismiss. However, in Corbitt v. Vickers, the Eleventh Circuit held that plaintiffs have the burden of pleading around qualified immunity in their complaints.

This Comment examines the two cases and argues that defendants should bear the burden of establishing qualified immunity. Qualified immunity is an affirmative defense with the burden on defendants, and plaintiffs should not be required to meet a heightened pleading standard. Finally, this Comment argues that it is important for the Supreme Court to resolve this circuit split and set a standard regarding the burden of establishing the defense.

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