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 Essay 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 Essay concludes that, while the most troubling aspect of this pattern is the suggestion that only the Supreme Court can create clearly established law, terminology and tone matter as well. The increasingly broad brush the Supreme Court uses in characterizing the qualified immunity defense is not likely to escape the attention of government actors seeking immunity or the lower courts tasked with resolving their claims.