Qualified Immunity in Section 1983 Cases: The Unanswered Questions

Part I of this Article describes the general policies underlying qualified immunity and the Court\u27s decisions defining the scope of the defense. Part II then addresses two answered questions concerning Harlow v. Fitzgerald\u27s 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\u27s 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\u27s 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\u27s 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\u27s resolution of the qualified immunity issue