It requires the plaintiff suing for a constitutional violation, to prove not only that a constitutional right had been violated, but that right had been “clearly established” at the time of the violation. And that second piece of the puzzle turns out to be particularly, as courts have interpreted the requirement of “clearly established,” to be a significant hurdle.
John Donvan:
So, prior to 1967, when, as you say, the court made this up, there is no qualified immunity in the Constitution, implied or otherwise. Prior to 1967, did people who want to sue the police have an easier time of doing it?
Adam Liptak:
Oh, yeah. No, I mean, it’s — it was never easy. And in a civil suit for money, you have to prove that you were wronged. But they didn’t face this additional burden.
John Donvan:
Was there an argument made or a rationale presented, not just in terms of the split second decision, but some sort of larger social good to come from giving police officers this protection?
