The Supreme Court's Quiet Expansion of the Qualified Immunity Defense

Abstract

This essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the article points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.

In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question whether lower court opinions can clearly establish constitutional law so as to defeat a claim of qualified immunity; and the relationship between qualified immunity and Fourth Amendment doctrine. In each of these areas, the essay demonstrates, the Court has inexplicably broadened the protection qualified immunity affords government officials in § 1983 litigation.

The article concludes that, while the most troubling aspect of this pattern is the suggestion that only the Supreme Court can create clearly established law, the differences in the terminology the Court has recently used in describing the qualified immunity defense and in comparing it to Fourth Amendment standards are not inconsequential. In particular, this change in tone runs the risk of placing a thumb on the scales favoring public officials in civil rights litigation.

Keywords: Civil Rights, Section 1983