U.S. Supreme Court: “Clearly Established” Means “Clearly Established"


By: E. Andrew Treese and Connor M. Bateman

Qualified immunity is all about the facts. To overcome the defense, a Section 1983 plaintiff must prove that an individual defendant violated his “clearly established” rights. The United States Supreme Court has held several times that “clearly established” law refers to authority providing “fair and clear warning” to the defendant that his conduct was prohibited. Reliance on general principles of law does not suffice: instead, a plaintiff must identify a case in which an official faced with similar circumstances as the defendant was held to have violated the Constitution.

The Court reiterated this point in White v. Pauly, 580 U.S. __ (2017). White, a police officer, arrived at a house to back up other officers who were conducting an investigation.  There is a contention the other officers failed to properly identify themselves to the occupants of the home. An occupant of the home began shooting at White, who returned fire without first yelling a warning. The trial court denied summary judgment to White, and the Tenth Circuit Court of Appeals affirmed, ruling that White violated “clearly established” law. Neither court, however, identified any cases with facts similar to White’s.

The Court granted certiorari and reversed, holding that the Tenth Circuit’s analysis of its “clearly established” law was fundamentally flawed due to a failure to identify a case with facts similar to White’s. The Court held that this reflected a “misunderstanding” of the applicable standard, particularly because the Tenth Circuit described the case as presenting unique facts and circumstances. “This alone should have been an important indication to the majority that White’s conduct did not violate a clearly established right.” The Court unanimously vacated the Tenth Circuit ruling and remanded for further proceedings, without asking for merit briefs or oral argument.

The takeaway is clear: facts matter. Section 1983 plaintiffs asserting claims against individual defendants should be pressed early and often to identify authority they seek to rely upon as “clearly established” law, and the fact-intensive nature of the standard must be emphasized in briefing and at oral argument.

For any questions, please contact Andy Treese at or Connor Bateman at