Abstract
Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation. This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised.
In Part II, this Article briefly explains the burdens of proof, the nature of § 1983 actions, and the difference between affirmative defenses and immunities. Part III surveys jurisdictions across the country to determine how they allocate the burdens of proof for the two defenses asserted by government officials sued under § 1983: the good-faith and probable cause defense and qualified immunity. Part IV then analyzes the evolution of the good-faith and probable cause defense into modern-day qualified immunity, thus presenting a single, unified defense. This Part concludes that, after a circumspect reading of modern Supreme Court precedent, the burdens of proof for the various qualified immunity elements are set: two burdens are on the defendant, one burden is on the plaintiff, and one burden is unallocated. Finally, Part V will determine that, based on policy considerations, the defendant should bear all of the burdens of proof in the qualified immunity inquiry.
Recommended Citation
Kenneth Duvall,
Burdens of Proof and Qualified Immunity,
37
S. Ill. U. L.J.
135
(2026).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol37/iss1/5