Qualified Immunity Developments: Not Much Hope Left for Plaintiffs

Erwin Chemerinsky, UC Irvine School of Law
Karen Blum, Suffolk University Law School
Martin A. Schwartz, Touro Law Center


This Article highlights important developments in the qualified immunity defense to Section 1983 claims. The focus is on recent Supreme Court decisions and the fallout from such decisions in the lower courts. First, however, the authors tackle the Supreme Court’s recent expansion of absolute immunity to grand jury witnesses, and its impact on the application of qualified immunity. Second, consideration is given to the Court’s newfound willingness to provide qualified immunity to private actors engaged in conduct under color of state law. Third, this Article discusses the continued effects of the Supreme Court’s reformulation of the qualified immunity analysis that allows lower courts to skip deciding the merits of the constitutional issue and jump to the question of whether the law was clearly established. Finally, this Article discusses recent decisions making it more difficult for Section 1983 plaintiffs to establish that the federal law was clearly established.