Touro Law Review


Karen M. Blum


The Supreme Court's decision in Pearson v. Callahan marked a significant change in the structure of the analysis to be performedin the adjudication of the qualified immunity defense in§ 1983 litigation. Prior to Pearson, the Court required a mandatory two-step approach for the qualified immunity analysis. Whenever qualified immunity was raised in response to an alleged constitutional violation, the lower courts were instructed that the disposition of the qualified immunity issue required the court to first address the merits question. Under Saucier v. Katz, the courts were required first to decide whether the complaint stated a violation of a constitutional right under current law before addressing the question of whether the law was clearly established at the time of the challenged conduct. This mandatory two-step approach was frequently criticized by several Supreme Court Justices and a number of lower court judges.