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Qualified Immunity Developments: Not Much Hope Left for Plaintiffs

27 Pages Posted: 1 Feb 2014 Last revised: 26 Aug 2014

Karen Blum

Suffolk University Law School

Erwin Chemerinsky

University of California, Irvine School of Law

Martin A. Schwartz

Touro College - Jacob D. Fuchsberg Law Center

Date Written: 2013

Abstract

This Article highlights important developments in the qualified immunity defense to Section 1983 claims. The focus is on recent Supreme Court decisions and the fallout from such decisions in the lower courts. First, however, the authors tackle the Supreme Court’s recent expansion of absolute immunity to grand jury witnesses, and its impact on the application of qualified immunity. Second, consideration is given to the Court’s newfound willingness to provide qualified immunity to private actors engaged in conduct under color of state law. Third, this Article discusses the continued effects of the Supreme Court’s reformulation of the qualified immunity analysis that allows lower courts to skip deciding the merits of the constitutional issue and jump to the question of whether the law was clearly established. Finally, this Article discusses recent decisions making it more difficult for Section 1983 plaintiffs to establish that the federal law was clearly established.

Keywords: qualified immunity, Section 1983, absolute immunity, grand jury witnesses, Supreme Court, merits inquiry, clearly established law, private actors, Rehberg, Filarsky, Pearson

Suggested Citation

Blum, Karen and Chemerinsky, Erwin and Schwartz, Martin A., Qualified Immunity Developments: Not Much Hope Left for Plaintiffs (2013). 29 Touro L. Rev. 633 (2013); Touro Law Center Legal Studies Research Paper Series No. 14-32; Suffolk University Law School Research Paper No. 14-26. Available at SSRN: https://ssrn.com/abstract=2375342

Karen Blum (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

Erwin Chemerinsky

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

Martin A. Schwartz

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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