This Note examines the reasoning underlying these conflicting approaches and concludes that a general rule of qualified immunity, which more fully protects the constitutional rights of members of the armed forces, is also consistent with the legitimate needs of the military establishment. Part I demonstrates that courts considering the scope of immunity in constitutional tort cases cannot rely blindly upon the rules and policies applicable in nonconstitutional cases, but must also accommodate the constitutional interests. Part II applies this principle to cases involving military officers. It argues in Section A that Feres v. United States does not support an absolute immunity rule in constitutional tort cases. Section B then analyzes the policies affected by the choice of an immunity rule and contends that the military's interest in discipline - the only functional justification for absolute immunity - is well served by the qualified immunity that has been established in other contexts.
Michigan Law Review,
Intramilitary Immunity and Constitutional Torts,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol80/iss2/6