The doctrine of qualified immunity shields government
officials performing discretionary functions from liability for
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 analyzing whether a government
official is entitled to qualified immunity, the court looks at
two distinct questions. See, e.g., Greene v. Camreta, 588 F.3d
1011, 1021 (9th Cir. 2009) (discussing the "two-step procedure" established in Saucier).
Second, the court
decides whether the right is clearly established such that a reasonable
government official would have known that "his conduct
was unlawful in the situation he confronted." Id. at 202
Moreover,
although the first Saucier prong calls for a factual inquiry,
Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1085
(9th Cir. 2009), the second prong of the Saucier analysis is "solely a question of law for the judge," id. See also Act
Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993)
("The threshold determination of whether the law governing
the conduct at issue is clearly established is a question of law for the court.").
("The determination of whether
the facts alleged could support a reasonable belief in the existence
of probable cause or reasonable suspicion is also a question
of law to be determined by the court."); see also Elder
v. Holloway, 510 U.S. 510, 516 (1994) ("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." (internal quotation marks omitted)).
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