42 U.S.C. § 1983, originally enacted as part of the Civil Rights Act of 1871, provides a remedy to persons whose Federal constitutional or statutory rights have been violated by those acting under color of State law. A defendant who is sued in his individual capacity for such a violation may prevail on the affirmative defense of qualified immunity.
This article tracks the history and development of this important defense, from its genesis in Pierson v. Ray (1967), through Justice Thomas’s criticism of the current formulation of the defense in Ziglar v. Abbasi (2017). The current application of the defense, and the procedure which applies to the assertion of the defense, are explained.