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A total shield to section 1983 liability, qualified immunity is a late twentieth-century creation, an example of conservative judicial activism. Qualified Immunity allows an officer to escape liability if the officer either did not violate a person’s constitutional right, or the constitutional right was not clearly established at the time the alleged violation occurred. Only individuals may assert qualified immunity–municipalities and (counties and cities) cannot assert it.
Preventing an officer from getting qualified immunity requires the police-misconduct victim to allege facts which—viewed in the light most favorable to the victim—establish the violation of a constitutional right. Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
At the same time, the police-misconduct victim must prove to the court that the right was clearly established at the time of the incident, so as to give the appropriate “fair warning” of the illegality of the officer’s actions. This is a question of law for the court. The judge will begin “by looking at the most analogous case law that existed when the officers [used alleged excessive force]”. Mattos v. Agarano, 661 F.3d 443, 446 (9th Cir. 2011) (en banc). At the same time, that the facts in the case do not match up with the facts in a prior case law does not mean that person loses. “If qualified immunity provided a shield in all novel factual circumstances, officials would rarely, if ever, be held accountable for their unreasonable violations of the Fourth Amendment.” Id. at 442 (quoting Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001).
Indeed, a “competing goal” of qualified immunity is “‘to “hold public officials accountable when they exercise power irresponsibly[.]” Mattos, 661 F.3d at 442 (quoting Pearson v. Callahan, 129 S. Ct. 808, 815 (2009). (emphasis added))
Often, the qualified-immunity defense is dealt with before trial.
Recently, some courts have shown a willingness to dismiss suits against police officers raising qualified-immunity unless the plaintiff can show the court a case in which almost identical facts resulted in a constitutional violation. This may be changing, however. More recently, progressive legal groups and left-of-center jurists, along with conservative and libertarian groups and right-leaning jurists, have all voiced concerns about the doctrine. To begin, section 1983 does not even mention qualified immunity, and the doctrine did not exist in 1871, when Congress passed section 1983.
The doctrine does not apply to claims based on California law (there are, however, California statutes that give qualified immunity in some instances).