In the context of qualified immunity, what establishes whether a right is 'clearly established'?

In the context of qualified immunity, whether a right is 'clearly established' is primarily determined by precedent case law. This principle ensures that government officials, including law enforcement officers, cannot be held personally liable for constitutional violations unless the right in question was sufficiently clear that a reasonable person in the official's position would have understood that their conduct was unlawful.

Precedent case law provides a framework of decisions made by courts in previous cases that outline the contours of specific rights. If there are established precedents that articulate similar facts and a legal standard that defines a right, it sets a clear basis for officers to understand their duties and the limitations of their actions. Therefore, when challenging qualified immunity, it's essential to demonstrate that the right was not only recognized but that it was so well-defined in existing law that a reasonable officer would have known that their conduct was in violation of that right.

Public opinion and consultations with legal experts may provide context but do not carry the authoritative weight of judicial precedent. Previous court decisions can be relevant but should be understood within the broader category of precedent case law, as they collectively shape the legal landscape regarding what rights are clearly established.