Abstract
The qualified immunity defense has been available to police officers defending civil rights lawsuits under 42 U.S.C. § 1983 since the landmark Supreme Court case of Pierson v. Ray in 1967. However, since that time, the defense has evolved, and recent Supreme Court decisions have hinted that it may not be available to officers who make routine mistakes in the course of duty. As a result, the lower circuits have split with regard to whether government officials are able to raise the defense as of right or whether they must first show an exercise of discretion before getting to the critical inquiry of qualified immunity: clearly established law. This Comment looks to the Court’s original purpose for the qualified immunity defense and argues that the appropriate solution is to completely remove any gatekeeping inquiry into discretion. Such action would allow all government officials to assert the defense as of right and not only increase the efficiency of civil rights litigation in the courts, but also allow those claims to be decided purely on the basis of clearly established law.
Recommended Citation
Jessica R. Sarff,
Qualified Immunity Not Accident-Proof, Official Discretion Advised: The Need to Clearly Establish the Right to Raise Qualified Immunity in Civil Rights Claims Under 42 U.S.C. § 1983,
38
S. Ill. U. L.J.
309
(2014).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol38/iss2/5