Clearly Established Law

What It Is

“Clearly established” is the second prong of the qualified immunity analysis. To overcome QI, you must show not only that the official violated your constitutional rights, but that those rights were clearly established at the time of the violation.

In practice, this means you need to find a prior case — from the Supreme Court or your circuit — with facts similar enough to yours that “every reasonable official” would have understood their conduct was unlawful.

How Similar Is Similar Enough?

The Supreme Court has said you don’t need a case “directly on point,” but “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

In practice, courts demand high specificity. General principles aren’t enough. “Excessive force is unconstitutional” won’t defeat QI. You need something like: “Shooting a suspect who was walking away slowly while holding a pen — not a weapon — violates the Fourth Amendment.”

The more novel or factually distinct your case, the more likely the court says “not clearly established.”

The “Obvious Clarity” Exception

Taylor v. Riojas, 592 U.S. 7 (2020) created a narrow exception: conduct so obviously unconstitutional that no prior case is needed. In Taylor, corrections officers confined an inmate in cells covered in feces for six days. The Court held that “no reasonable correctional officer could have concluded that” this was constitutional.

But Taylor is the exception, not the rule. Most courts still demand a factually similar prior case.

The Problem

Clearly established law creates a one-way ratchet against civil rights plaintiffs:

1. New type of violation occurs
2. No prior case → not clearly established → QI granted
3. Court skips the constitutional question (allowed since Pearson v. Callahan)
4. No new precedent is created
5. Repeat

Rights that courts never rule on can never become “clearly established.” The doctrine rewards creativity in misconduct: the more unusual the violation, the more likely the officer is protected.

What You Can Do

• Search your circuit for factually similar cases. Use CourtListener, Google Scholar, or Casetext.
• Cite multiple cases that, taken together, establish the principle even if no single case is identical.
• Invoke the “obvious clarity” standard from Taylor v. Riojas if the conduct was egregious.
• Argue at a reasonable level of generality — Hope v. Pelzer, 536 U.S. 730 (2002) held that officials can be on notice even without “fundamentally similar” cases.

Key Cases

• Ashcroft v. al-Kidd, 563 U.S. 731 (2011) — “Beyond debate” standard
• Taylor v. Riojas, 592 U.S. 7 (2020) — Obvious clarity exception
• Hope v. Pelzer, 536 U.S. 730 (2002) — No need for “fundamentally similar” facts
• White v. Pauly, 580 U.S. 73 (2017) — Specificity requirement for clearly established law