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When is a police officer not entitled to a qualified immunity defense?

Police officers are not entitled to qualified immunity if (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time. See District of Columbia v Wesby, 583 US (2018) (slip op., at 13) (quoting Reichle v Howards, 566 US 658, 664 (2012)).

In the case of Ashcroft v al-Kidd, 563 US 731, 746 (2011), Justice Kennedy in his concurring opinion stated that (“[q]ualified immunity is lost when plaintiffs point either to ‘cases of controlling authority in their jurisdiction at the time of the incident' or to ‘a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful” (quoting Wilson v Layne, 526 US 603, 617 (1999)).

In other words, for the court to find that qualified immunity does not apply, the plaintiff must identify a case where an officer acting under similar circumstances as the offending officer was held to have violated the Fourth Amendment.

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