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Page 62 Minich • The Right Balance: Qualified Immunity and Section 1983 life and work. 32 As the Court later stated, “One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.” 33 Harlow Era Recognizing this issue, the Court in Harlow v. Fitzgerald eliminated the subjective prong of qualified immunity analysis to create an objective-analysis qualified immunity test: “clearly established statutory or constitutional rights of which a reasonable person would have known.” 34 This put the focus directly on the law and its clarity rather than an officer’s motives, streamlining the process. In order to analyze the case under this test, the Court wrote, “the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.” 35 From this case, qualified immunity jurisprudence drew a new dual-pronged test: 1) an actual rights violation under the facts alleged, and 2) that the right was clearly established at the time of the violation. This test, though changed in its application, continues to form the basic qualified immunity test to the present day. Later in the 1960s, two cases served to broaden the application of qualified immunity in § 1983 lawsuits. In the case Malley v. Briggs , the Court wrote, “As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law” (emphasis added). 36 Without changing the Harlow test, this view nonetheless construed qualified immunity as a broad shield for officers. 37 The next year, in Anderson v. Creighton , the Court established that, in order to overcome qualified immunity, the constitutional right in question must be clearly established “in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” 38 This is because denying qualified immunity on the grounds that the right is established very broadly (such as a general reference to the Fourth Amendment) would essentially destroy qualified immunity altogether— officers would have no legal notice on which to base decisions about a particular action. 39 The Court noted that, of course, this standard would not require that “the very action in question” has already been ruled unconstitutional, but that “in the light of pre-existing law the unlawfulness must be apparent.” 40 Though this standard emphasizes fair notice for officers (“apparent” unlawfulness) and not matching fact patterns (“the very action”), this standard has come to 32 Butz v. Economou at 507-508; Scheuer v. Rhodes at 245-248. 33 Siegert v. Gilley , 500 US 226, 232 (1991). 34 Harlow v. Fitzgerald at 818. 35 Ibid. 36 Malley v. Briggs, 475 U.S. 335, 341 (1986). 37 It is arguable that this quotation in Malley was intended to be descriptive of qualified immunity jurisprudence rather than an active expansion. (See Kinports, Kit. "The Supreme Court's Quiet Expansion of Qualified Immunity." Minn. L. Rev. Headnotes 100, no. 62 (2016) at 66.) Nevertheless, this statement was later used by the Court to support expansion of qualified immunity. 38 Anderson v. Creighton, 483 US 635, 640 (1987). 39 Ibid., 639. 40 Ibid., 640.