The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity " `provides ample support to all but the plainly incompetent or those who knowingly violate the law.' " Burns v. Reed, 500 U.S. 478, 494-95 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). "Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by the plaintiff was not `clearly established' or the officer could have reasonably believed that his particular conduct was lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991) (emphasis added). Furthermore, "[t]he entitlement is an immunity from suit rather than a mere defense to liability; .. . it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
The qualified immunity test requires a two-part analysis: "(1) Was the law governing the official's conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?" Act-Up!, 988 F.2d at 871; see also Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir. 1988), cert. denied, 490 U.S. 1075 (1989).
The qualified immunity doctrine protects government officials from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether an official is entitled to qualified immunity, we (1) identify the specific right allegedly violated; (2) determine whether the right was "clearly established;" and (3) determine whether a reasonable officer could have believed that his or her conduct was lawful. Alexander v. City and County of San Francisco, 29 F.3d 1355, 1363-64 (9th Cir. 1994).
Courts apply the test articulated by the Supreme Court in Anderson v. Creighton, 483 U.S. 635 (1987), to determine whether the right is "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 639-40. It is not necessary that the specific action in question previously have been declared unconstitutional, so long as the unlawfulness was apparent in light of preexisting law. Id. at 640. We consider whether "the particular facts of [the] case support a claim of clearly established right." Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th Cir. 1985).
Even where a constitutional violation has occurred, an officer will be immune from suit if he or she "could have reasonably believed that his particular conduct was lawful." Romero, 931 F.2d at 627.
"[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. section 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).