Document Type


Publication Title

Touro Law Review

Publication Date

Spring 2000


There were two Supreme Court cases on qualified immunity. I want to be sure to cover those. There was also a case that was almost decided by the Court and I would like to spend a little more attention on that one.

The cases on qualified immunity that were decided emphasized and perhaps changed the law, a little bit, on the sequence of deciding issues in a section 1983 case. At one time, when someone would assert that his or her constitutional rights were violated, the defense to such an assertion was that this is not a constitutional right. Even if there was a constitutional right, there is doubt as to whether such a right was clearly established, thereby entitling the government official to qualified immunity. The courts for the most part would not get into the issue of whether there was a constitutional right because in any event the right was not clearly established at the time. The Supreme Court dealt with that issue a second time, and it is an easy way to get out of the whole issue.