Government officials sued in their individual capacity have what is known as qualified immunity from suits for damages to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have been aware. Harlow v. Fitzgerald, 457 U.S. 800 (1982). A qualified immunity analysis thus asks two questions: (1) was there a violation of a right?; and, (2) was the right at issue “clearly established,” such that it would have been obvious to a reasonable officer in the situation that his or her conduct was unlawful? Qualified immunity is a high hurdle for plaintiffs to overcome; it has been said to “provide ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335 (1986).

Courts often engage in a fairly circumstance-specific inquiry when analyzing whether a right is clearly established for qualified immunity purposes. General awareness of the Bill of Rights will not suffice to put an officer on notice that his or her acts violated a clearly established right. Instead, the analysis typically focuses on whether case law from the Supreme Court, the controlling federal circuit, or the state high court had already decided a similar case or articulated a clearly governing rule. Few ICAOS cases have reached those courts, and even fewer have involved rules the court deemed “clearly established” in the manner necessary to overcome the defendants’ qualified immunity protection.

For example, in Jones v. Chandrasuwan, 820 F.3d 685 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit concluded that receiving state officers violated an offender’s constitutional rights by seeking his arrest without reasonable suspicion. However, because the level of suspicion necessary to arrest a probationer had not been established “beyond debate” by the Supreme Court or the Fourth Circuit, the law was not sufficiently clearly established to put a reasonable official on notice that he or she was violating the right. The officers were therefore entitled to qualified immunity. Id. at 696.

In order to be “clearly established” for purposes of a qualified immunity analysis, the right in question must have been clearly established at the time of the alleged violation. Resolution of the right through other case law decided after the alleged violation will not render the right clearly established. For instance, in Warner v. McVey, 429 F. App’x 176, 178 (3d Cir. 2011), the United States Court of Appeals for the Third Circuit held that a sex offender’s constitutional right to due process before being classified as a sex offender was not clearly established at the time when Pennsylvania probation officials made that determination without a hearing. The appellate court case clarifying the scope of the right—Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010)—was not decided until after the offender was designated a sex offender, and so a reasonable official would not have been on notice of the rule.

None of this is to say that no constitutional right is clearly established in the context of the Compact. For example, in Grayson v. Kansas, No. 06-2375-KHV, 2007 WL 1259990, at *1 (D. Kan. Apr. 30, 2007), the court found it to be clearly established under relevant federal circuit precedent that the continued detention of an offender which a reasonable officer would know to be unlawful violated the offender’s due process rights. The officers therefore were not entitled to qualified immunity—although they later succeeded in showing that they did not have any personal participation in the actual violation.