This Article addresses the controversial “third prong” that some courts add to the qualified immunity analysis in 42 U.S.C. § 1983 cases. Under the doctrine of qualified immunity, public officials are immune from liability for civil rights violations so long as they do not violate clearly established law. Courts have generally analyzed this qualified immunity defense via a two-prong test—asking whether the official (1) violated the plaintiff’s constitutional right, and (2) if so, asking whether that right was “clearly established” at the time of the violation. However, certain circuits add a third prong to the test, asking whether the official’s actions were objectively reasonable in light of the clearly established law. Applying this prong creates an additional barrier to plaintiffs in suits against government officials in their individual capacities. Courts are not in agreement about the propriety of the third prong, and in at least one circuit various panels of the court are not even in agreement about its use. This Article addresses how the prong can change the outcome in qualified immunity cases and argues that its use is permitted and, in many cases, serves to better achieve the goals of the qualified immunity doctrine.
E. Lee Whitwell, How Qualified is Qualified Immunity: Adding a Third Prong to the Qualified Immunity Analysis, 43 Campbell L. Rev. 403 (2021).