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Qualified Immunity and “Clearly Established” Rights

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. 42 U.S.C. § 1983 provides the statutory vehicle for suing state actors acting under the color of state law. When an official acting under the color of federal law is involved, a plaintiff is able to bring a Bivens claim. The doctrine of qualified immunity, however, protects many government officials from such lawsuits when the law or right they violated is not “clearly established” at the time of the alleged constitutional violation. The defense is available only when an official is performing a “discretionary function.” 

This blog briefly explores the doctrine of qualified immunity – specifically, what it means to be “clearly established” law. 

What is Qualified Immunity? 

Qualified immunity essentially protects government officials from suit even when they commit illegal acts while performing a “discretionary function”, unless they violated law “clearly established” at the time of the alleged constitutional or statutory violation. Courts routinely state that the doctrine seeks to strike a proper balance between two competing interests – the fact that damages suits may be the only realistic avenue for vindication of constitutional violations and, on the other hand, the fact that “permitting damages suits against government officials can entail significant social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). 

Qualified Immunity Test

The doctrine was created by the Supreme Court in 1967 but has developed tremendously since that time. In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court articulated a mandatory two-step sequence for analyzing whether a government official is entitled to qualified immunity: 

1.    whether the officer’s conduct violated a constitutional right, and 

2.    whether that right was “clearly established” at the time of the incident. 

The Supreme Court later reconsidered the Saucier test and ruled that Courts are not required to follow the test sequentially, and instead are permitted “to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Person v. Callahan, 555 U.S. 223, 236 (2009). 

Defining the Right at Issue

As in any action under Section 1983 or Bivens, the first step is to identify the exact contours of the underlying right said to be violated. Graham v. Connor, 490 U.S. 386. The Supreme Court has cautioned that the right at issue is not to be defined at a high level of generality. Defendants will generally argue for a more narrowly-defined right, while plaintiffs should be prepared to argue for a more broad definition. 

What Does “Clearly Established” Mean? 

Once the right is defined, the Court then will look to determine whether that right was “clearly established” at the time of the alleged violation. A right is deemed “clearly established” when the state of the law is sufficiently clear such that every reasonable officer would have understood what he is doing violates that right. 

Many defendants argue that a law or right is not clearly established unless almost identical conduct was previously held unlawful. However, the Supreme Court has expressly rejected the idea that a right is clearly established “unless the very action in question has previously been held unlawful.” Wilson v. Layne, 526 U.S. 603, 615 (1999). Instead, the crux of the inquiry is whether the official can fairly be said to have had “fair notice” that they were acting unconstitutionally. Hope v. Pelzer, 536 U.S. 730, 739 (2002). 

Practical Impact

Defendants almost always raise the qualified immunity defense early in litigation, even when they violate a constitutional right, by arguing that the law was not “clearly established” at the time of the relevant conduct. 

Of course, defendants will make every effort to narrowly-define the right as issue, making it more difficult to show that the right was “clearly established.” Plaintiffs, on the other hand, must be prepared to argue for a more broadly defined right, but must also be prepared to present cases (preferably from the Supreme Court of the United States) to show that the “nature of the [officials’] particular conduct is clearly established.” Ashcroft v. al-kidd, 563 U.S. 731, 741 (2011). Only then will plaintiffs be able to have their day in court.  

Disclaimer: This article is for informational and educational purposes only, does not constitute legal advice and does not establish any kind of attorney-client relationship.

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