Copyright (c) 1995 Washburn Law Journal
Washburn Law Journal
ARTICLE: "CLEARLY ESTABLISHED" LAW IN QUALIFIED IMMUNITY ANALYSIS FOR CIVIL RIGHTS ACTIONS IN THE TENTH CIRCUIT
35 Washburn L.J. 79
Heather Meeker *
Since the announcement of Harlow v. Fitzgerald 1 in 1982, plaintiffs in civil rights actions under 42 U.S.C. 1983 have born the burden of presenting evidence that the events giving rise to their complaints were a violation of "clearly established" civil rights. 2 This paper examines the scope of "clearly established" law in the Tenth Circuit. Part II discusses the doctrine and policy underlying the clear establishment requirement. Part III catalogs the state of "clearly established" law in the Tenth Circuit. Part IV analyzes the specific rule for "clear establishment" in the Tenth Circuit, and discusses how that rule affects the development of civil rights law in the circuit.
The thesis of this article turns upon a 1992 case, Medina v. City and County of Denver, 3 which announced a refinement to the "clear establishment" rule. This rule defined the kind of law that may clearly establish a right for the purposes of qualified immunity in 1983 actions. This article concludes Medina announced an entirely new rule for the Tenth Circuit. Based on structural and empirical evidence, it also concludes the Medina rule acts as a brake on the development of civil rights law in the circuit.
II. Actions under 1983, Qualified Immunity, and Clear Establishment
A. The Civil Rights Action Under 1983
Section 1983 was enacted "to provide protection to those persons wronged by the misuse of power." 4 Section 1983 is the primary means of private enforcement of civil rights in the ...
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