Qualified Immunity in Section 1983 Cases: The Unanswered Questions

01 Jan 1989

Part I of this Article describes the general policies underlying qualified immunity and the Court's decisions defining the scope of the defense. Part II then addresses two answered questions concerning Harlow v. Fitzgerald's impact on the substantive content of the qualified immunity defense: Is immunity available to the defendant who actually knows that her conduct is infringing the plaintiff's constitutional rights, even if the law governing those rights is not yet clearly established? And should a court take into account the nature of the defendant's governmental responsibilities and other circumstances surrounding her conduct in determining whether the right she violated was one of which a reasonable person would have known? Finally, Part III discusses two unanswered questions concerning Harlow's impact on the procedures to be used in ruling on qualified immunity claims: Which party bears the burden of proof on the qualified immunity defense? And is the plaintiff denied all opportunity for discovery prior to the court's resolution of the qualified immunity issue?