The judge, however, allowed the defendants’ motions on the ground of qualified immunity, concluding that the defendants had not violated “clearly established statutory or constitutional rights” when they assigned prisoners to the East

immunity, the right *419 must be clearly established at the time of the alleged violation.

immunity was available to the defendants because the law, before our decision in Haverty , was not “clearly established.”

Rather than grapple with the Fourth Amendment issue first, the judge, noting that “the constitutional issue ... is difficult and unresolved,” first addressed the second prong of the qualified immunity test: whether the right was clearly

Indeed, an “unresolved” constitutional right, like the one presented in this case, cannot be “clearly established,” as required under the second prong of the qualified immunity test. See, e.g., Wilson v.

Layne, 526 U.S. 603, 614-615 (1999) (“clearly established” means contours of right sufficiently clear in light of preexisting law).

. § 1983 , because it created no clearly established right.

We agree with the defendant that the judge wrongly denied his motion for qualified immunity. 1. Background. In brief outline, the following are the undisputed facts.

Since the defendant’s actions were discretionary and they did not violate any clearly established rights of the plaintiff, qualified immunity was warranted.

was not ‘clearly established.’ ” Breault v.

Fitzgerald, 457 U.S. 800, 817-18 (1982) (establishing qualified immunity standard under 42 U.S.C. §1983 ); See also Anderson v.

Creighton, 483 U.S. 635, 641 (1987) (qualified immunity allows a defendant to move for summary judgment on the ground that, based on “clearly established” rights, he could reasonably have believed his acts to be lawful).

(i) Qualified immunity.

Gilley, 500 U.S. 226, 232 (1991) (right must be clearly established “at the time the defendant acted” to overcome defense of qualified immunity).

However, the issue whether a statutory right is “clearly established” for purposes of overcoming qualified immunity is not a matter of counting up the number of decisions that have gone each way and treating as “clearly established

"Government officials are entitled to qualified immunity from § 1983 claims for damages if 'their conduct does not violate clearly established statutory or constitutional rights 3 Wright did not appeal from the dismissal of the

not discretionary and therefore qualified immunity should not apply to the defendants' actions.

Without evidence to show that the defendants violated a clearly established constitutional right of which a reasonable correction officer would have been aware, the defendants are entitled to qualified immunity on Wright's claims

The qualified immunity test is a two-step inquiry. See Saucier v. Katz, 533 U.S. at 201-202. 1. Whether constitutional violation clearly established.

We address the first prong of the qualified immunity test (whether the rights violated by the defendant were “clearly established”) in summary fashion, as this issue is not in serious dispute.

“[T]he ‘clearly established [right]’ prong of the qualified immunity inquiry is satisfied when (1) the subordinate’s actions violated a clearly established constitutional right, and (2) it was clearly established that a supervisor

instant situation in Massachusetts, and the defendants could properly assert their qualified immunity.

They are entitled to the qualified immunity pleaded in their answer. As the Court said in Harlow v.

Finally, even were it assumed that the constitutional rule was “clearly established” and violated, so that qualified immunity did not attach, the defendants could be held individually liable for damages for the infractions under §

"The doctrine of qualified immunity shields government officials, performing discretionary tasks, from liability for civil damages . . . insofar as their conduct does not violate clearly established statutory or constitutional rights

As I believe that the first question should be answered in the affirmative, the defendants' entitlement to qualified immunity turns on whether the right they violated was clearly established at the time of the incident, which is a

"Thus, if a court decides to grant qualified immunity because there is no violation of clearly established law, it may never answer whether there was a constitutional violation."

Was the right clearly established!?

The qualified immunity doctrine shields government officials from monetary liability in their personal capacity provided the official’s conduct did not violate an individual’s rights that were “clearly established” under the Federal

, Gumon’s motion asserting a defense of qualified immunity should have been allowed.

The doctrine of qualified immunity may shield State officials from liability for civil damages under this statute, so long as they are performing discretionary functions and do not violate “clearly established statutory or constitutional

The plaintiffs nevertheless claimed that Gray violated clearly established rights that they had pursuant to G. L. c. 90B and pursuant to the due process clause of the Fourteenth Amendment to the United States Constitution.

Gray accordingly was entitled to qualified immunity from the plaintiffs’ additional claims under 42 U.S.C. § 1983 alleging violation of their clearly established rights under the First Amendment and equal protection clause of the Fourteenth

III.The DOC is entitled to qualified immunity “Qualified immunity shields public officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory

“The right alleged to have been violated must have been clearly established at the time of the alleged violation . . . and the contours of the right must be sufficiently clear that a reasonable official would understand that what he

The DOC did not violate a clearly established constitutional right because DeLong did not have an enforceable liberty interest. The DOC is entitled to qualified immunity.

However, even if the complaint is read to allege an unlawful seizure in violation of Hancock’s constitutional rights, Scott is entitled to summary judgment because of the doctrine of qualified immunity.

The Supreme Judicial Court has adopted the Harlow standard as the rule applicable to state officials’ assertions of qualified immunity under the MCRA, Duarte v. Healy, 405 Mass. 43, 46-47 (1989).

Even if a plaintiffs rights are violated, qualified immunity is applicable if those rights were not “clearly established.” Id. at 47-48 .

. §1983 based upon the doctrine of qualified immunity.

Government officials performing discre *245 tionary functions are entitled to qualified immunity from suit under 42 U.S.C. §1983 if their conduct did not “violate clearly established statutory or constitutional rights of which a reasonable

As previously noted, a government official performing discretionary functions is entitled to qualified immunity from suit under 42 U.S.C. §1983 if his conduct did not “violate clearly established statutory or constitutional rights

Clearly established constitutional rights.

Having considered whether there was an Eighth Amendment violation, we next consider, for purposes of qualified immunity analysis, whether the constitutional right violated was clearly established at the time. See Clancy v.

“Whether an asserted federal right was clearly established at a particular time, so that a public official who allegedly violated the right has no qualified immunity from suit, presents a question of law, not one of ‘legal facts.’

"[T]he relevant inquiry on summary judgment as to the defense of qualified immunity is whether a reasonable official could have believed his actions were lawful, in light of clearly established law and the information possessed by

Qualified immunity is an affirmative defense and the defendants have the burden of proof. Id .

established religious rights. 13 Therefore, the defendants were not entitled to qualified immunity.

As we explain below, there is no basis for an exception for a motion that raises a defense of qualified immunity. a. Interlocutory appeals from qualified immunity rulings.

The doctrine of qualified immunity generally shields public officials from liability for civil damages for the performance of discretionary functions, “insofar as their conduct does not violate clearly established statutory or constitutional

inquiry shifts to whether the right was so clearly established *879 that it would be plain to a reasonable official that his conduct was unlawful.

“Government officials performing discretionary functions may be shielded from liability for civil *32 damages in a § 1983 action by the doctrine of qualified immunity. Harlow v.

established.”

Creighton, 483 U.S. 635, 641 (1987) (principle of qualified immunity allows defendant to seek summary judgment on ground that, on “clearly established principles [of law],” he could have reasonably believed his acts to be lawful).

Second, they assert that the complaint fails to allege facts constituting a violation of the plaintiffs “clearly established” rights, and that they therefore are entitled to qualified immunity. A.

Gilley, 500 U.S. 226, 232 (1991) (right must be clearly established “at the time the defendant acted” to overcome defense of qualified immunity). The standard is purely an objective one. In Harlow v.

In this case, the qualified immunity defense fails if the right vindicated in Haverty I was “clearly established” at the time of the events giving rise to the plaintiffs claim, i.e., before the Haverty plaintiffs prevailed in this

, on the basis of qualified immunity.

immunity.

The standard for qualified immunity is well settled.