How have courts interpreted the Harlow standard in the context of qualified immunity claims?

It is no longer necessary, in order to defeat a qualified immunity defense, to plead and prove a malicious intent to deprive the plaintiffs of their constitutional rights. A major purpose of the ruling in Harlow v. Fitzgerald, 457 U.S. 800 (1982), was to eliminate such issues of subjective intent and to replace them with the inquiry whether the defendants' conduct violates "clearly established ... constitutional rights of which a reasonable person would have known." Id. at 818; see Tribble v. Gardner, 860 F.2d 321, 326 (9th Cir.1988), cert. denied, 109 S.Ct. 2087 (1989).

It is true that when the underlying constitutional violation contains an essential element of intent, as in a claim of racial discrimination, the intent to discriminate must be alleged. See Gutierrez v. Municipal Court, 838 F.2d 1031, 1047 (9th Cir.1988), vac. as moot, 109 S.Ct. 1736 (1989). The allegation must be reasonably specific, so that an otherwise neutral and lawful act, such as the discharge of an employee, is not too easily converted into a triable constitutional violation by a conclusory allegation of improper motive. Id. at 1050.

These principles are not applicable in the situation presented by this case. There is no subjective intent requirement inherent in claims of violation of constitutional rights under the Fourth or Fifth Amendments. See Graham v. Connor, 109 S.Ct. 1865, 1872

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We return, then, to application of the Harlow standard. Have plaintiffs alleged actions by the defendants that violated "clearly established ... constitutional rights of which a reasonable person would have known"? This test must not be applied at too high a level of abstraction; it is not enough that the defendants should have known that plaintiffs have rights of free speech, freedom from unreasonable seizure, and due process of law. Anderson v. Creighton, 483 U.S. 635, 639 (1987). The question is whether a reasonable official, in the circumstances shown here and with the knowledge that was available to the defendants, could have known that the action he was taking violated clearly established law. Id. at 640. We agree with the district court that, on the allegations of the complaint alone, the answer to that question is "yes."