C. When is a Right Clearly Established?

DAVIS v. SCHERER, 468 U.S. 183 (1984).

Justice Powell delivered the opinion of the Court.

[1]Appellants in this case challenge the holding of the Court of Appeals that a state official loses his qualified immunity from suit for deprivation of federal constitutional rights if he is found to have violated the clear command of a state administrative regulation.

I

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[2]Appellee’s complaint alleged that appellants in 1977 had violated the Due Process Clause of the Fourteenth Amendment by discharging appellee from his job without a formal pretermination or a prompt post-termination hearing. Appellee requested a declaration that his rights had been violated and an award of money damages.

[3]The District Court granted the requested relief for violation of appellee’s Fourteenth Amendment rights. The court found that appellee had a property interest in his job and that the procedures followed by appellants to discharge appellee were constitutionally “inadequate” under the Fourteenth Amendment. Id. at 14. Further, the court declared unconstitutional Florida’s statutory provisions governing removal of state employees, FLA. STAT. § 110.061 (1977). Finally, the District Court concluded that appellants had forfeited their qualified immunity from suit under § 1983 because appellee’s “due process rights were clearly established at the time of his October 24, 1977, dismissal.” Id., at 16.

[4]Five days after entry of the District Court’s order, the Court of Appeals for the Fifth Circuit decided Weisbrod v. Donigan, 651 F.2d 334 (1981). The Court of Appeals there held that Florida officials in 1978 had violated no well-established due process rights in discharging a permanent state employee without a pretermination or a prompt post-termination hearing. On motion for reconsideration, the District Court found that Weisbrod required it to vacate its prior holding that appellants had forfeited their immunity by violating appellee’s clearly established constitutional rights. The court nevertheless reaffirmed its award of monetary damages. It reasoned that proof that an official had violated clearly established constitutional rights was not the “sole way” to overcome the official’s claim of qualified immunity.

[5]Applying the “totality of the circumstances” test of Scheuer v. Rhodes, 416 U.S. 232, 247-248 (1974), the District Court held that “if an official violates his agency’s explicit regulations, which have the force of state law, [that] is evidence that his conduct is unreasonable.” 543 F. Supp. at 19. In this respect, the court noted that the personnel regulations of the Florida Highway Patrol clearly required “a complete investigation of the charge and an opportunity [for the employee] to respond in writing.” Id. at 20.^[1] The District Court concluded that appellants in discharging appellee had “followed procedures contrary to the department’s rules and regulations”; therefore, appellants were “not entitled to qualified immunity because their belief in the legality of the challenged conduct was unreasonable.” Ibid. The court explicitly relied upon the official violation of the personnel regulation, stating that “[if] [the] departmental order had not been adopted … prior to [appellee’s] dismissal, no damages of any kind could be awarded.” Ibid. The District Court’s order amending the judgment did not discuss the issue whether appellants violated appellee’s federal constitutional rights. On that issue, the District Court relied upon its previous opinion; the court did not indicate that the personnel regulation was relevant to its analysis of appellee’s rights under the Due Process Clause.

[6]The District Court also amended its judgment declaring the Florida civil service statute unconstitutional. The State’s motion for reconsideration had informed the court that the statute had been repealed by the Florida Legislature. The District Court therefore declared unconstitutional the provisions of the newly enacted civil service statute, FLA. STAT., ch. 110 (1982 and Supp. 1983), insofar as “they fail to provide a prompt post-termination hearing.” Id. at 21.

[7]The Court of Appeals affirmed on the basis of the District Court’s opinion. Scherer v. Graham, 710 F.2d 838 (CA11 1983). We noted probable jurisdiction, 464 U.S. 1017 (1983), to consider whether the Court of Appeals properly had declared the Florida statute unconstitutional and denied appellants’ claim of qualified immunity. Appellants do not seek review of the District Court’s finding that appellee’s constitutional rights were violated. As appellee now concedes that the District Court lacked jurisdiction to adjudicate the constitutionality of the Florida statute enacted in 1981, we consider only the issue of qualified immunity.^[2] We reverse.

II

[8]In the present posture of this case, the District Court’s decision that appellants violated appellee’s rights under the Fourteenth Amendment is undisputed.^[3] This finding of the District Court—based entirely upon federal constitutional law—resolves the merits of appellee’s underlying claim for relief under § 1983. It does not, however, decide the issue of damages. Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard. The precise standard for determining when an official may assert the qualified immunity defense has been clarified by recent cases, see Wood v. Strickland, 420 U.S. 308 (1975); Butz v. Economou, 438 U.S. 478 (1978); Harlow v. Fitzgerald, 457 U.S. 800 (1982). The present case requires us to consider the application of the standard where the official’s conduct violated a state regulation as well as a provision of the Federal Constitution.

[9]The District Court’s analysis of appellants’ qualified immunity, written before our decision in Harlow v. Fitzgerald, supra, rests upon the “totality of the circumstances” surrounding appellee’s separation from his job. This Court applied that standard in Scheuer v. Rhodes, 416 U.S. at 247-248. As subsequent cases recognized, Wood v. Strickland, supra, at 322, the “totality of the circumstances” test comprised two separate inquiries: an inquiry into the objective reasonableness of the defendant official’s conduct in light of the governing law, and an inquiry into the official’s subjective state of mind. Harlow v. Fitzgerald, supra, rejected the inquiry into state of mind in favor of a wholly objective standard. Under Harlow, officials “are shielded 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.” 457 U.S. at 818. Whether an official may prevail in his qualified immunity defense depends upon the “objective reasonableness of [his] conduct as measured by reference to clearly established law.” Ibid. (footnote deleted). No other “circumstances” are relevant to the issue of qualified immunity.

[10]Appellee suggests, however, that the District Court judgment can be reconciled with Harlow in two ways. First, appellee urges that the record evinces a violation of constitutional rights that were clearly established. Second, in appellee’s view, the District Court correctly found that, absent a violation of clearly established constitutional rights, appellants’ violation of the state administrative regulation—although irrelevant to the merits of appellee’s underlying constitutional claim—was decisive of the qualified immunity question. In our view, neither submission is consistent with our prior cases.

A

[11]Appellee contends that the District Court’s reliance in its qualified immunity analysis upon the state regulation was “superfluous,” Brief for Appellee 19, because the federal constitutional right to a pretermination or a prompt post-termination hearing was well established in the Fifth Circuit at the time of the conduct in question. As the District Court recognized in rejecting appellee’s contention, Weisbrod v. Donigan, 651 F.2d 334 (CA5 1981), is authoritative precedent to the contrary. The Court of Appeals in that case found that the State had violated no clearly established due process right when it discharged a civil service employee without any pretermination hearing.^[4]

[12]Nor was it unreasonable in this case, under Fourteenth Amendment due process principles, for the Department to conclude that appellee had been provided with the fundamentals of due process.^[5] As stated above, the District Court found that appellee was informed several times of the Department’s objection to his second employment and took advantage of several opportunities to present his reasons for believing that he should be permitted to retain his part-time employment despite the contrary rules of the Patrol. Appellee’s statement of reasons and other relevant information were before the senior official who made the decision to discharge appellee. And Florida law provided for a full evidentiary hearing after termination. We conclude that the District Court correctly held that appellee has demonstrated no violation of his clearly established constitutional rights.

B

[13]Appellee’s second ground for affirmance in substance is that upon which the District Court relied. Appellee submits that appellants, by failing to comply with a clear state regulation, forfeited their qualified immunity from suit for violation of federal constitutional rights.

[14]Appellee makes no claim that the appellants’ violation of the state regulation either is itself actionable under § 1983 or bears upon the claim of constitutional right that appellee asserts under § 1983.^[6] And appellee also recognizes that Harlow v. Fitzgerald makes immunity available only to officials whose conduct conforms to a standard of “objective legal reasonableness.” 457 U.S., at 819. Nonetheless, in appellee’s view, official conduct that contravenes a statute or regulation is not “objectively reasonable” because officials fairly may be expected to conform their conduct to such legal norms. Appellee also argues that the lawfulness of official conduct under such a statute or regulation may be determined early in the lawsuit on motion for summary judgment. Appellee urges therefore that a defendant official’s violation of a clear statute or regulation, although not itself the basis of suit, should deprive the official of qualified immunity from damages for violation of other statutory or constitutional provisions.

[15] On its face, appellee’s reasoning is not without some force. We decline, however, to adopt it. Even before Harlow, our cases had made clear that, under the “objective” component of the good-faith immunity test, “an official would not be held liable in damages under § 1983 unless the constitutional right he was alleged to have violated was ‘clearly established’ at the time of the violation.” Butz v. Economou, 438 U.S., at 498 (emphasis added); accord, Procunier v. Navarette, 434 U.S. 555, 562 (1978). Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.^[7]

[16]We acknowledge of course that officials should conform their conduct to applicable statutes and regulations. For that reason, it is an appealing proposition that the violation of such provisions is a circumstance relevant to the official’s claim of qualified immunity. But in determining what circumstances a court may consider in deciding claims of qualified immunity, we choose “between the evils inevitable in any available alternative.” Harlow v. Fitzgerald, 457 U.S., at 813-814. Appellee’s submission, if adopted, would disrupt the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties. The qualified immunity doctrine recognizes that officials can act without fear of harassing litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages and only if unjustified lawsuits are quickly terminated. See Butz v. Economou, supra, at 506-507; Harlow v. Fitzgerald, supra, at 814, 818-819. Yet, under appellee’s submission, officials would be liable in an indeterminate amount for violation of any constitutional right—one that was not clearly defined or perhaps not even foreshadowed at the time of the alleged violation—merely because their official conduct also violated some statute or regulation. And, in § 1983 suits, the issue whether an official enjoyed qualified immunity then might depend upon the meaning or purpose of a state administrative regulation, questions that federal judges often may be unable to resolve on summary judgment.

[17]Appellee proposes that his new rule for qualified immunity be limited by requiring that plaintiffs allege clear violation of a statute or regulation that advanced important interests or was designed to protect constitutional rights. Yet, once the door is opened to such inquiries, it is difficult to limit their scope in any principled manner. Federal judges would be granted large discretion to extract from various statutory and administrative codes those provisions that seem to them sufficiently clear or important to warrant denial of qualified immunity. And such judgments fairly could be made only after an extensive inquiry into whether the official in the circumstances of his decision should have appreciated the applicability and importance of the rule at issue. It would become more difficult, not only for officials to anticipate the possible legal consequences of their conduct,^[8] but also for trial courts to decide even frivolous suits without protracted litigation.

[18]Nor is it always fair, or sound policy, to demand official compliance with statute and regulation on pain of money damages. Such officials as police officers or prison wardens, to say nothing of higher level executives who enjoy only qualified immunity, routinely make close decisions in the exercise of the broad authority that necessarily is delegated to them. These officials are subject to a plethora of rules, “often so voluminous, ambiguous, and contradictory, and in such flux that officials can only comply with or enforce them selectively.” See P. SCHUCK, SUING GOVERNMENT 66 (1983). In these circumstances, officials should not err always on the side of caution. “[Officials] with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office.” Scheuer v. Rhodes, 416 U.S., at 246.^[9]

III

[19]A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official’s qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue. As appellee has made no such showing, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Brennan, with whom Justice Marshall, Justice Blackmun, and Justice Stevens join, concurring in part and dissenting in part.

[20]In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court decided that Government officials seeking to establish qualified immunity must show that the acts or omissions violating the plaintiff’s rights were objectively reasonable—specifically, that the conduct at issue did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id., at 818. The Court today does not purport to change that standard. Yet it holds that, despite discharging a civil service employee in 1977 without meaningful notice and an opportunity to be heard, appellants are entitled to immunity from a suit for damages. The Court reaches this decision essentially by ignoring both the facts of this case and the law relevant to appellants’ conduct at the time of the events at issue. In my view, appellants plainly violated appellee’s clearly established rights and the Court’s conclusion to the contrary seriously dilutes Harlow’s careful effort to preserve the availability of damages actions against governmental officials as a critical “avenue for vindication of constitutional guarantees.” Id., at 814. Accordingly, I dissent from that portion of the judgment reversing the award of damages.

[21]In order to determine whether a defendant has violated a plaintiff’s clearly established rights, it would seem necessary to make two inquiries, both of which are well within a court’s familiar province: (1) which particular act or omission of the defendant violated the plaintiff’s federal rights, and (2) whether governing case or statutory law would have given a reasonable official cause to know, at the time of the relevant events, that those acts or omissions violated the plaintiff’s rights. The Court, however, asks neither question. Its brief treatment of the issue includes no reference to the District Court’s findings of fact with respect to the conduct at issue here. This is not surprising since those findings—which were affirmed summarily by the Court of Appeals and which appellants do not claim to be clearly erroneous—demonstrate that appellee was never informed that he might be fired for violating regulations against dual employment. Nor did appellee ever have an opportunity to persuade the relevant decisionmaker that he should not be disciplined.

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[22]By failing to warn appellee that his conduct could result in deprivation of his protected property interest in his Highway Patrol job and by denying him an opportunity to challenge that deprivation, appellants violated the most fundamental requirements of due process of law—meaningful notice and a reasonable opportunity to be heard. Contrary to the Court’s conclusion, these requirements were “clearly established” long before October 25, 1977, the date on which appellee learned he was fired. As long ago as 1914, the Court emphasized that “[the] fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394. In 1925, the Court explained that a government failure to afford reasonable notice of the kinds of conduct that will result in deprivations of liberty and property “violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391. And in several decisions in the 1950’s, the Court concluded that public employees have interests in maintaining their jobs that cannot be abridged without due process. E.g., Slochower v. Board of Education, 350 U.S. 551 (1956); Wieman v. Updegraff, 344 U.S. 183 (1952); see Board of Regents v. Roth, 408 U.S. 564, 576-577 (1972).

[23]In January 1972, nearly six years prior to appellee’s termination, the Court reaffirmed that

“[before] a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, ‘except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.’ Boddie v. Connecticut, 401 U.S. 371, 379. ‘While “[many] controversies have raged about … the Due Process Clause,” … it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate [a protected] interest …, it must afford “notice and opportunity for hearing appropriate to the nature of the case” before the termination becomes effective.’ Bell v. Burson, 402 U.S. 535, 542. For the rare and extraordinary situations in which we have held that deprivation of a protected interest need not not be preceded by opportunity for some kind of hearing, see, e.g., Central Union Trust Co. v. Garvan, 254 U.S. 554, 566; Phillips v. Commissioner, 283 U.S. 589, 597; Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594.” Board of Regents v. Roth, supra, at 570, n.7.

[24]Similarly, in 1974, based on an exhaustive review of our cases, Justice White explained that “where there is a legitimate entitlement to a job, as when a person is given employment subject to his meeting certain specific conditions, due process requires, in order to insure against arbitrariness by the State in the administration of its law, that a person be given notice and a hearing before he is finally discharged.” Arnett v. Kennedy, 416 U.S. 134, 185 (concurring in part and dissenting in part). See id., at 170 (opinion of Powell, J.,); id., at 203 (Douglas, J., dissenting); id., at 212-227 (Marshall, J., dissenting). And finally, in February 1976, more than a year and a half prior to appellee’s termination, Justice Powell summarized for the Court fundamental legal principles whose sources could be traced to cases from the 19th century:

“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment. This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974). See, e.g., Phillips v. Commissioner, 283 U.S. 589, 596-597 (1931). See also Dent v. West Virginia, 129 U.S. 114, 124-125 (1889). The ‘right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.’ Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552 (1965). See Grannis v. Ordean, 234 U.S. 385, 394 (1914).” Mathews v. Eldridge, 424 U.S. 319, 332-333 (1976).

See also Goss v. Lopez, 419 U.S. 565 (1975); Perry v. Sindermann, 408 U.S. 593 (1972); Fuentes v. Shevin, 407 U.S. 67 (1972); Stanley v. Illinois, 405 U.S. 645 (1972); Connell v. Higginbotham, 403 U.S. 207 (1971) (per curiam); Wisconsin v. Constantineau, 400 U.S. 433 (1971); Goldberg v. Kelly, 397 U.S. 254 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).

[25]If there were any ambiguity in the repeated pronouncements of this Court, appellants had several other reasons to know that their failure to afford appellee meaningful pretermination notice and hearing violated due process. Two years prior to appellee’s discharge, the Florida Attorney General explained in an official opinion that “[career] service employees who have attained permanent status in the career service system have acquired a property interest in their public positions and emoluments thereof—such as job security and seniority which they may not be deprived of without due process of law.” Fla. Op. Atty. Gen. 075-94, p. 161 (1975). And more than a year before the events at issue here, in a case involving the Jacksonville, Fla., City Civil Service Board, the Court of Appeals for the Fifth Circuit left no doubt as to what it thought “clearly established” law required:

“Where a governmental employer chooses to postpone the opportunity of a nonprobationary employee to secure a full-evidentiary hearing until after dismissal, risk reducing procedures must be accorded. These must include prior to termination, written notice of the reasons for termination and an effective opportunity to rebut those reasons. Effective rebuttal must give the employee the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision.” Thurston v. Dekle, 531 F.2d 1264, 1273 (1976), vacated and remanded on other grounds, 438 U.S. 901 (1978).

[26]Finally, some two months prior to appellee’s discharge, the Florida Highway Patrol issued a regulation undoubtedly intended to conform administrative practice with decisions like Thurston.^[10] The regulation, which has the force of statutory law, see 543 F. Supp., at 20, provides in pertinent part:

“Upon receiving a report of … a violation of Department or Division rules and regulations … the Director shall order a complete investigation to determine the true facts concerning the circumstances surrounding the alleged offense. The completed investigation report will also contain a written statement made by the employee against whom the complaint was made. If after a thorough study of all information concerning the violation, the Director decides that a … dismissal will be in order, he will present the employee in writing with the reason or reasons for such actions.” General Order No. 43, § 1.C (Sept. 1, 1977), quoted in 543 F. Supp., at 19-20.

[27]The Court ignores most of this evidence demonstrating the objective unreasonableness of appellants’ conduct. Instead, the Court relies first on Weisbrod v. Donigan, 651 F.2d 334 (CA5 1981) (per curiam), as “authoritative precedent” for the proposition that appellee’s right to pretermination notice and a hearing was not “well established in the Fifth Circuit at the time of the conduct in question.” Ante, at 192. In Weisbrod, the Court of Appeals simply declared—without citation to any of the cases just discussed, including its own decision in Thurston—that “the record indicates defendants did not act in disregard of any well-settled constitutional rights” and that “Weisbrod offers no authority indicating the failure to hold a pretermination hearing and the delay in the process of her administrative appeal were clear violations of her constitutional rights.” 651 F.2d, at 336. It is unclear from the court’s brief per curiam opinion whether Weisbrod—unlike appellee in this case—was informed prior to discharge that her conduct constituted grounds for termination. See id., at 335. In any event, the Court of Appeals’ dubious and cursoryipsedixit in Weisbrod, rendered four years after the conduct at issue in this case, is hardly persuasive, much less controlling, authority for this Court’s decision that appellee’s rights were not clearly established in 1977.

[28]The other basis for the Court’s rejection of appellee’s claim is an assertion that it was not “unreasonable in this case, under Fourteenth Amendment principles, for the Department to conclude that appellee had been provided with the fundamentals of due process.” Ante, at 192. The Court seeks to support this statement by relying on the fact that appellee had been told to discontinue his second job and that he “took advantage of several opportunities to present his reasons for believing that he should be permitted to retain his part-time employment. ” Ibid. Appellee did not, however, have an opportunity to present his reasons for retaining his civil service job with the Florida Highway Patrol—the employment in which he had a protected property interest. See 543 F. Supp., at 12. Indeed, he was, according to the District Court, never told that his Highway Patrol job was in jeopardy, and he never had a chance to try to persuade the relevant decisionmaker that the second job did not create a conflict of interest. The Court concedes that our decisions by 1978 had required notice and “‘some kind of a hearing’ … prior to discharge of an employee who had a constitutionally protected property interest in his employment.” Ante, at 192, n.10. In this case, appellee received no meaningful notice and no kind of hearing before the official who fired him.

[29]In sum, I believe that appellants’ actions “[violated] clearly established statutory or constitutional rights of which a reasonable person would have known,” Harlow, 457 U.S., at 818, and I would therefore affirm the District Court’s award of damages.

Davis v. Scherer – Audio and Transcript of Oral Argument

Footnotes

1. These regulations specified in pertinent part: “Upon receiving a report of … a violation of Department or Division rules and regulations …, the Director shall order a complete investigation to determine the true facts concerning the circumstances surrounding the alleged offense. The completed investigation report will also contain a written statement made by the employee against whom the complaint was made. If after a thorough study of all information concerning the violation, the Director decides that a … dismissal will be in order, he will present the employee in writing with the reason or reasons for such actions.” General Order No. 43, § 1.C (Sept. 1, 1977), quoted at 543 F. Supp., at 19-20. ↵

    

2. The Florida civil service statute now in force replaced the statute under which appellee’s employment was terminated. As the current state statute was never applied to appellee, he lacks standing to question its constitutionality. Cf. Golden v. Zwickler, 394 U.S. 103 (1969). Appellee’s concession does not deprive the Court of appellate jurisdiction over the remaining issue in the case. In cases where the Court of Appeals has declared a state statute unconstitutional, this Court may decide the “Federal questions presented,” 28 U.S.C. § 1254(2). Cf. Flournoy v. Wiener, 321 U.S. 253, 263 (1944); Leroy v. Great Western United Corp., 443 U.S. 173 (1979). Under § 1254(2), the Court retains discretion to decline to consider those issues in the case not related to the declaration that the state statute is invalid. In the present case, however, we choose to consider the important question whether the District Court and the Court of Appeals properly denied appellants’ good-faith immunity from suit. ↵

    

3. As we discuss below, it is contested whether these constitutional rights were clearly established at the time of appellants’ conduct. ↵

    

4. We see no reason to doubt, as does the partial dissent, that the Court of Appeals in Weisbrod had full knowledge of its own precedents and correctly construed them. ↵

    

5. As the partial dissent explains at some length, the decisions of this Court by 1978 had required “some kind of a hearing,” Board of Regents v. Roth, 408 U.S. 564, 570, n.7 (1972), prior to discharge of an employee who had a constitutionally protected property interest in his employment. But the Court had not determined what kind of a hearing must be provided. Such a determination would require a careful balancing of the competing interests—of the employee and the State—implicated in the official decision at issue. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). As the Court had considered circumstances in which no hearing at all had been provided prior to termination, Perry v. Sindermann, 408 U.S. 593 (1972), or in which the requirements of due process were met, Board of Regents v. Roth, supra; Arnett v. Kennedy, 416 U.S. 134 (1974); Bishop v. Wood, 426 U.S. 341 (1976); Codd v. Velger, 429 U.S. 624 (1977), there had been no occasion to specify any minimally acceptable procedures for termination of employment. The partial dissent cites no case establishing that appellee was entitled to more elaborate notice, or a more formal opportunity to respond, than he in fact received. ↵

    

6. State law may bear upon a claim under the Due Process Clause when the property interests protected by the Fourteenth Amendment are created by state law. See Board of Regents v. Roth, supra, at 577. Appellee’s property interest in his job under Florida law is undisputed. Appellee does not contend here that the procedural rules in state law govern the constitutional analysis of what process was due to him under the Fourteenth Amendment. ↵

    

7. Harlow, the Court acknowledged that officials may lose their immunity by violating “clearly established statutory … rights.” 457 U.S. at 818. This is the case where the plaintiff seeks to recover damages for violation of those statutory rights, as in Harlow itself, see id., at 820, n.36, and as in many § 1983 suits, see, e.g., Maine v. Thiboutot, 448 U.S. 1 (1980) (holding that § 1983 creates cause of action against state officials for violating federal statutes). For the reasons that we discuss, officials sued for violations of rights conferred by a statute or regulation, like officials sued for violation of constitutional rights, do not forfeit their immunity by violating some other statute or regulation. Rather, these officials become liable for damages only to the extent that there is a clear violation of the statutory rights that give rise to the cause of action for damages. And if a statute or regulation does give rise to a cause of action for damages, clear violation of the statute or regulation forfeits immunity only with respect to damages caused by that violation. In the present case, as we have noted, there is no claim that the state regulation itself or the laws that authorized its promulgation create a cause of action for damages or provide the basis for an action brought under § 1983. Harlow was a suit against federal, not state, officials. But our cases have recognized that the same qualified immunity rules apply in suits against state officers under § 1983 and in suits against federal officers under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). See Butz v. Economou, 438 U.S. at 504. Neither federal nor state officials lose their immunity by violating the clear command of a statute or regulation—of federal or of state law—unless that statute or regulation provides the basis for the cause of action sued upon. ↵

    

8. Officials would be required not only to know the applicable regulations, but also to understand the intent with which each regulation was adopted. Such an understanding often eludes even trained lawyers with full access to the relevant legislative or administrative materials. It is unfair and impracticable to require such an understanding of public officials generally. ↵

    

9. Appellee urges as well that appellants’ violation of the personnel regulation constituted breach of their “ministerial” duty—established by the regulation—to follow various procedures before terminating appellee’s employment. Although the decision to discharge an employee clearly is discretionary, appellee reasons that the Highway Patrol regulation deprived appellants of all discretion in determining what procedures were to be followed prior to discharge. Under this view, the Harlow standard is inapposite because this Court’s doctrine grants qualified immunity to officials in the performance of discretionary, but not ministerial, functions. Appellee’s contention mistakes the scope of the “ministerial duty” exception to qualified immunity in two respects. First, as we have discussed, breach of a legal duty created by the personnel regulation would forfeit official immunity only if that breach itself gave rise to the appellee’s cause of action for damages. This principle equally applies whether the regulation created discretionary or ministerial duties. Even if the personnel regulation did create a ministerial duty, appellee makes no claim that he is entitled to damages simply because the regulation was violated. See supra, at 193-194, and n.12. In any event, the rules that purportedly established appellants’ “ministerial” duties in the present case left to appellants a substantial measure of discretion. Cf. Amy v. The Supervisors, 78 U.S. 136, 138 (1871); Kendall v. Stokes, 44 U.S. 87, 98 (1845). Appellants were to determine, for example, what constituted a “complete investigation” and a “thorough study of all information” sufficient to justify a decision to terminate appellee’s employment. See n.6, supra. And the District Court’s finding that appellants ignored a clear legal command does not bear on the “ministerial” nature of appellants’ duties. A law that fails to specify the precise action that the official must take in each instance creates only discretionary authority; and that authority remains discretionary however egregiously it is abused. Cf. Kendall v. Stokes, supra. ↵

    

10. Because I believe appellants were not entitled to qualified immunity under the standards set forth in Harlow v. Fitzgerald, 457 U.S. 800 (1982), I need not consider whether, as appellee contends, violation of the department regulation would defeat immunity for violating federal rights of which the officials had no reasonable knowledge. It seems plain to me, however, that the existence of the regulation is relevant to the Harlow analysis. Regardless of whether this Court or the Court of Appeals now thinks appellee’s right to pretermination notice and hearing was not “clearly established” in 1977, the presence of a clear-cut regulation obviously intended to safeguard public employees’ constitutional rights certainly suggests that appellants had reason to believe they were depriving appellee of due process. Cf. Harlow, supra, at 821 (Brennan, J., concurring). Such an objective basis of knowledge provides at least as reliable a measure of the reasonableness of official action as does a court’s post hoc parsing of cases. See 457 U.S., at 815-819. ↵

Notes on Davis v. Scherer

The Qualified Immunity Test

1. Did Davis answer whether the abrogation of the subjective tier of the qualified immunity in Harlow v. Fitzgerald applies to Section 1983 actions? See Wilson v. Layne, 526 U.S. 603, 609 (1999) (“Although this case involves suits under both § 1983 and Bivens, the qualified immunity analysis is the same under either cause of action.”).  What was the plaintiff/appellee’s position on the issue?
   

   Sources of Law Relevant to Whether the Right Violated was Clearly Established

2. Why did the Court conclude that the defendants had not violated a clearly established due process right? What source(s) of law did the Court utilize in making this determination?
   1. The Davis Court found that plaintiff had not suffered a clearly established deprivation of due process in part because of the Fifth Circuit’s intervening decision in Weisbrod v. Donigan, 651 F.2d 334 (5th Cir. 1981). The entirety of the Fifth Circuit’s reasoning in Weisbrod is as follows:
      

      As to the due process claims, Weisbrod offers no authority indicating the failure to hold a pretermination hearing and the delay in the processing of her administrative appeal were clear violations of her constitutional rights.

      Id. at 336.  Why didn’t the Weisbrod court consider Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976), vacated and remanded on other grounds, 438 U.S. 901 (1978), discussed in Justice Brennan’s dissenting opinion?

   2. Should defendants be permitted to claim immunity by relying upon a conflict in the law developed after the unconstitutional action? See Stanton v. Sims, 571 U.S. 3 (2013) (per curiam) (citing post-arrest district court case to reinforce finding that it was not clearly established that warrantless entry to arrest fleeing suspect for a misdemeanor was unconstitutional); Reichle v. Howard, 566 U.S. 658 (2012) (invoking post-arrest decisions of other federal courts of appeals to support finding that Tenth Circuit precedents did not clearly establish that retaliatory arrest supported by probable cause could violate First Amendment); Wilson v. Layne, 526 U.S. 603, 618 (1999) (“Between the time of the events of this case and today’s decision, a split among the Federal Circuits in fact developed on the question whether media ride-alongs that enter homes subject the police to money damages. If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.”).
   3. May the plaintiff offer decisions rendered after the constitutional violation giving rise to the Section 1983 action to prove that the right was clearly established? See City of Tahlequah, Oklahoma v. Bond, 595 U.S. ___ (2021) (per curiam) (reversing denial of qualified immunity; “Estate of Ceballos, decided after the shooting at issue, is of no use in the clearly established inquiry.”); Plumhoff v. Rickard, 527 U.S. 765 (2014) (to defeat qualified immunity, plaintiff must show  unconstitutionality of shooting driver of fleeing car was clearly established by case law as of the time of the shooting); Brosseau v. Haugen, 543 U.S. 194, 200 n.4 (2004) (“The parties point us to a number of other cases in this vein that postdate the conduct in question [citations omitted].  These decisions, of course, could not have given fair notice to [defendant] Brosseau and are of no use in the clearly established inquiry.”); Davis v. United States, 564 U.S. 229 (2011) (good-faith exception to the exclusionary rule requires denying suppression of evidence obtained by a warrantless search that complied with binding appellate precedent at time of search, even though Supreme Court overruled those precedents two years after the search).
3. In determining whether a right is clearly established, is the court limited to considering the cases cited by the parties? In Elder v. Holloway, 510 U.S. 510 (1994), the district court found police officers entitled to qualified immunity in plaintiff’s Section 1983 action alleging an unreasonable seizure.  Contrary to the district court’s conclusion that there was no controlling case law, the Ninth Circuit had decided a case that was relevant to the constitutionality of the officers’ actions.  The court of appeals declined to consider the precedent in reviewing the conferral of immunity, interpreting Davis v. Scherer to place the burden on the plaintiff to put into the trial record the “legal facts” showing that the right asserted was clearly established.

   The Supreme Court reversed, reasoning as follows:

   The central purpose of affording public officials qualified immunity from suit is to protect them “from undue interference with their duties and from potentially disabling threats of liability.”  The rule announced by the Ninth Circuit does not aid this objective because its operation is unpredictable in advance of the district court’s adjudication.  Nor does the rule further the interests on the other side of the balance:  deterring public officials’ unlawful actions and compensating victims of such conduct.  Instead, it simply releases defendants because of shortages in counsel’s or the court’s legal research or briefing.

   * * * * *

   Whether an asserted federal right was clearly established at a particular time … presents a question of law, not one of “legal facts.”  That question of law, like the generality of such questions, must be resolved de novo on appeal.  A court engaging in review of a qualified immunity judgment should therefore use its “full knowledge of its own [and other relevant] precedents.”

   Id. at 514-16 (citations omitted).  Under the Elder rule, was the due process right in Scherer clearly established under Fifth Circuit precedents?

4. What sources of law may a court consult in determining whether the constitutional right in issue was clearly established?
   1. In District of Columbia v. Wesby, 138 S. Ct. 577 (2018), five District of Columbia police officers, responding to a complaint, arrested and charged 21 partygoers. After the charges were dropped, sixteen of those arrested sued the police officers for false arrest in violation of the Fourth Amendment.  The court of appeals affirmed the district court’s grant of summary judgment to plaintiffs, concluding that the officers lacked probable cause to arrest the partygoers for unlawful entry.  The court also denied immunity, finding that the officers knew or should have known that to establish probable cause, they needed evidence that the partygoers knew or should have known that their entry into the home where the party was held was against the will of the owner.The Supreme Court reversed. After finding the officers had probable cause, the Court exercised its discretion to correct error and ruled further that the court of appeals mistakenly denied immunity.  Noting the court of appeals had simply relied on one of its precedents, the Court observed in a footnote:
      

      We have not yet decided what precedents—other than our own—qualify as a controlling authority for purposes of qualified immunity.  See, e.g., Reichle v. Howards, 566 U.S. 658, 665-66 (2012) (reserving the question whether court of appeals decisions can be “a dispositive source of clearly established law.”).  We express no view on that question here.

      Id. at 591.  See also Rivas-Villegas v. Cortesluna, 595 U.S. ___ (2021) (per curiam) (“Even assuming that controlling Circuit precedent clearly establishes law for purposes of § 1983, LaLonde did not give fair notice to Rivas-Villegas”); Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) (Application for writ of habeas corpus with respect to claim adjudicated in state court proceeding shall not be granted unless decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States”); Lopez v. Smith, 574 U.S. 1 (2014) (per curiam) (Where no United States Supreme Court precedent clearly establishes legal proposition, court of appeals erred in relying on its own precedent to grant federal habeas relief on ground that state court misapplied federal law).

   2. May district court decisions render a right clearly established? In Ashcroft v. al-Kidd, 563 U.S. 731 (2011), the court of appeals held that Attorney General Ashcroft violated clearly established law by authorizing law enforcement officials to use the federal material witness statute as a pretext to detain individuals suspected of links to terrorist organizations. The court of appeals found that because of a footnote in a district court opinion, Attorney General Ashcroft had fair warning that his conduct violated the Fourth Amendment. That footnote expressly repudiated the legality of Ashcroft’s reported statements advocating aggressive use of the material witness statute to prevent new acts of terrorism.  The court of appeals reasoned that the footnote “was categorical, and it addressed exactly what al-Kidd alleges happened ten months after the opinion was first issued.”  al-Kidd v. Ashcroft, 580 F.3d 949, 972 (8th Cir. 2009).The Supreme Court reversed, holding Ashcroft was entitled to qualified immunity.  The Court rejected the court of appeals’ reliance on the district court opinion:
      

      We will indulge the assumption (though it does not seem to us realistic) that the Justice Department lawyers bring to the Attorney General’s personal attention all district judges’ footnoted specifications that boldly “call him out by name.”  On that assumption, would it prove that for him (and for him only?) it became clearly established that pretextual use of the material-witness statute rendered the arrest constitutional?  An extraordinary proposition. Even a district judge’s ipse dixit of a holding is not “controlling authority” in any jurisdiction, much less in the entire United States; and his ipse dixit of a footnoted dictum falls far short of what is necessary absent controlling authority: a robust “consensus of cases of persuasive authority.”

      Ashcroft, 563 U.S. at 741.  In a concurring opinion, Justice Kennedy asserted that the stature of the office was relevant to whether case law in a single district could clearly establish a right:

      Some federal officers perform their functions in a single jurisdiction, say within the confines of one state or one federal district.  They “reasonably can anticipate when their conduct may give rise to liability for damages” and so are expected to adjust their behavior in accordance with local precedent.  In contrast, the Attorney General occupies a national office and so sets policies implemented in many jurisdictions throughout the country.

      * * * *

      A national officeholder intent on retaining qualified immunity need not abide by the most stringent standard adopted anywhere in the United States. And the national officeholder need not guess at when a relatively small set of appellate precedents have established a binding legal rule … [T]oo expansive a view of “clearly established law” would risk giving local judicial determinations the effect of rules with de facto national significance, contrary to the normal process of ordered appellate review.

      Ashcroft, 563 U.S. at 746 (Kennedy, J. concurring).  See Greason v. Kemp, 891 F.2d 829, 833 (11th Cir. 1990). (“To decide whether … prisoners had a clearly established constitutional right to psychiatric care, we look to the law established by the Supreme Court, the courts of appeals, and the district courts.”)

   3. May decisions of other circuit courts of appeals be consulted in determining whether a right is clearly established?  See Taylor v. Barkes, 575 U.S. 822 (2015) (per curiam) (citing cases decided by United States Courts of Appeal in the Sixth, Eleventh, Fifth, and Fourth Circuits to find Third Circuit erred in holding its own precedents clearly established the right); Carroll v. Carman, 574 U.S. 13 (2014) (per curiam) (reversing Third Circuit’s denial of immunity based on single case from that court, citing contradictory decisions of sister courts of appeal and New Jersey Supreme Court); Lane v. Franks, 573 U.S. 228 (2014) (refusing to consider precedents from other circuit courts of appeal where there is discrepancy among decisions of controlling circuit); Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (to defeat immunity, plaintiff must show unconstitutionality of use of deadly force to end high speed chase was established by “’controlling authority’ or a ‘robust consensus of cases of persuasive authority.”); Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989). (“In the absence of a controlling precedent we look to all relevant caselaw in an effort to determine whether at the time of the alleged acts a sufficient consensus had been reached indicating that the official’s conduct was unlawful….  This approach makes eminent sense for it precludes an official from escaping liability for unlawful conduct due to the fortuity that a court in a particular jurisdiction had not yet had the opportunity to address the issue.”); Jean v. Collins, 155 F.3d 701, 709 (4th Cir. 1998) (“The very immensity of American jurisprudence creates the distinct likelihood that jurisdictions will offer conflicting opinions over how government officials should carry out their tasks.  To hold officials responsible for sorting out these conflicts could generate widespread confusion over the scope of official obligations.  Ordinarily, therefore, courts in this circuit need not look beyond the decisions of the Supreme Court, this court of appeals, and the highest court of the state in which the case arose to determine whether a right was clearly established at a particular time.”).
   4. Are unpublished opinions relevant to whether a right is clearly established? See Prison Legal News v. Cook, 238 F.3d 1145, 1152 (9th Cir. 2001) (“Although unpublished decisions carry no precedential weight, Departmental officials may have relied on these decisions to inform their view on whether the regulation was valid and whether enforcing it would be lawful.”)
   5. May the court consider cases from the state supreme court? See Courson v. McMillian, 939 F.2d 1479, 1498 n.32 (11th Cir. 1991). (“Clearly established law in this circuit may include court decisions of the highest state court in the states that comprise this circuit as to those respective states, when the state supreme court has addressed a federal constitutional issue that has not been addressed by the United States Supreme Court or the Eleventh Circuit.”)
5. Does the fact that courts have generated conflicting results render the right per se not clearly established? In Stanton v. Sims, 571 U.S. 3 (2013) (per curiam), the Court reversed the denial of immunity to a police officer who had injured the plaintiff while making a warrantless entry and pursuing an individual who had ignored the officer’s order to stop:
   

   To summarize the law at the time Stanton made his split-second decision to enter Sims’ yard:  Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeals affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided.

   * * * * *

   [W]hether or not the constitutional rule applied by the court below was correct, it was not “beyond debate.”  Stanton may have been mistaken in believing his actions were justified, but he was not “plainly incompetent.”

   Id. at 10-11.  See also Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 366 (2009) (“We would not suggest that entitlement to qualified immunity is the guaranteed product of disuniform views of the law in the other federal, or state courts, and the fact that a single judge, or even a group of judges disagrees about the contours of a right does not automatically render the law unclear if we have been clear.  That said, however, the cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law.”); Wilson v. Layne, 526 U.S. 603, 617 (1999) (“Petitioners have not brought to our attention any cases of controlling authority in their jurisdiction … nor have they identified a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.”); Lum v. Jensen, 876 F.2d 1385, 1398 (9th Cir. 1989) (“[T]he absence of a binding precedent in the circuit plus the conflict between the circuits is sufficient, under the circumstances of this case, to undermine the clearly established nature of this right.”); Garcia v. Miera, 817 F.2d 650, 658 (10th Cir. 1987) (“[T]o give preclusive effect to a conflict among the circuits would effectively bind this circuit by decisions of others.  Moreover, the binding would always be in denigration of the constitutional right in issue.”).

6. On what basis did the Davis Court find the state regulation to be irrelevant in determining whether the state officials were immune?
   1. As a behavioral matter, what role do state regulations likely play in a government official’s belief in whether his actions comport with the federal Constitution? Does Davis correspond with the expected decision-making process of government officials?
   2. Does Davis preclude a state or local official from offering evidence that state regulations authorize or do not proscribe her conduct in order to support a claim to qualified immunity? See Pierson v. Ray, supra.
      1. In Roska v. Peterson, 328 F.3d 1230, 1251-53 (10th Cir. 2003), the court of appeals explained the salience of state law to a government official’s entitlement to qualified immunity:
         

         Once the district court determines that the right at issue was “clearly established,” it becomes defendant’s burden to prove that her conduct was nonetheless objectively reasonable….

         In considering the “objective legal reasonableness” of the state officer’s actions, one relevant factor is whether defendant relied on a state statute, regulation, or official policy that explicitly sanctioned the conduct in question. Of course, an officer’s reliance on an authorizing statute does not render the conduct per se reasonable.  Rather, “the existence of a statute or ordinance authorizing particular conduct is a factor which militates in favor of the conclusion that a reasonable official would find that conduct constitutional.”

         * * * *

         [I]n considering the relevance of a statute under a qualified- immunity analysis, the appropriate inquiry is not whether a reasonable state officer could have concluded that the statute authorized the unconstitutional conduct in question.  Rather, a  court must consider whether reliance on the statute rendered the officer’s conduct “objectively reasonable,” considering such factors as:  (1) the degree of specificity with which the statute authorized the conduct in question; (2) whether the officer in fact complied with the statute; (3) whether the statute has fallen into desuetude; and (4) whether the officer could have reasonably concluded that the statute was constitutional.

         See also Vives v. City of New York, 405 F.3d 115 (2d Cir. 2004) (for purposes of qualified immunity, state officials are entitled to rely upon presumptively valid state statute unless and until statute is explicitly held unconstitutional except where law is so grossly and flagrantly unconstitutional that person of reasonable prudence would be aware of its flaws).

      2. In Wilson v. Layne, 526 U.S. 603, 617 (1999), the Supreme Court relied in part on internal policies to hold that police officers were immune for inviting representatives of the media to accompany them in executing arrest warrants in private homes:
         

         [I]mportant to our conclusion was the reliance by the United States marshals in this case on a Marshal’s Service ride-along policy which explicitly contemplated that media who engaged in ride-alongs might enter private homes with their cameras as part of fugitive apprehension arrests. The Montgomery County Sheriff’s Department also at this time had a ride-along program that did not explicitly prohibit media entry into private homes…. Such a policy, of course, could not make reasonable a belief that was contrary to a decided body of case law.  But here the state of the law as to third parties accompanying police on home entries was at best undeveloped, and it was not unreasonable for law enforcement officers to look and rely on their formal ride-along policies.

   3. May plaintiff rely upon internal policies to support the argument that the right in issue was clearly established? Will plaintiff even have the opportunity to discover such policies under the Court’s immunity jurisprudence?  In Groh v. Ramirez, 540 U.S. 551 (2004), the Supreme Court affirmed denial of qualified immunity to an agent of the Bureau of Alcohol, Tobacco and Firearms who executed a warrant that failed to include the identity of the items to be seized that were set forth in the probable cause affidavit provided to the issuing magistrate.  In support of its finding that no reasonable official could have believed the warrant to be valid, the Court noted that “an ATF directive in force at the time of this search warned: ‘Special agents are liable if they exceed their authority while executing a search warrant and must be sure that a search warrant is sufficient on its face even when issued by a magistrate.’” Id. at 564.  In a footnote, however, the Court cautioned:
      

      We do not suggest that an official is deprived of qualified immunity whenever he violates an internal guideline.  We refer to the ATF Order only to underscore that petitioner should have known that he should not execute a patently defective warrant.

      Id. at 564, n.7.  See also Hope v. Pelzer, 536 U.S. 730, 743-44 (2002) (finding Alabama Department of Corrections regulation limiting conditions under which prisoner may be handcuffed to hitching post as sanction for refusing to work relevant to whether prior cases afforded fair warning that conduct violated Constitution); Anaya v. Crossroads Managed Care Systems, Inc., 195 F. 3d 584, 595 (10th Cir. 1999) (“[W]hile we do not look to state law in determining the scope of federal rights, the fact that the Colorado Supreme Court and legislature limited the power of the police over the intoxicated in precisely the manner the Fourth Amendment would limit such power is indicative of the degree to which the Fourth Amendment limit was established.”).

ANDERSON v. CREIGHTON, 483 U.S. 635 (1987).

 

Justice Scalia delivered the opinion of the Court.

[1]The question presented is whether a federal law enforcement officer who participates in a search that violates the Fourth Amendment may be held personally liable for money damages if a reasonable officer could have believed that the search comported with the Fourth Amendment.

I

[2]Petitioner Russell Anderson is an agent of the Federal Bureau of Investigation. On November 11, 1983, Anderson and other state and federal law enforcement officers conducted a warrantless search of the home of respondents, the Creighton family. The search was conducted because Anderson believed that Vadaain Dixon, a man suspected of a bank robbery committed earlier that day, might be found there. He was not.

[3]The Creightons later filed suit against Anderson in a Minnesota state court, asserting among other things a claim for money damages under the Fourth Amendment, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). After removing the suit to Federal District Court, Anderson filed a motion to dismiss or for summary judgment, arguing that the Bivens claim was barred by Anderson’s qualified immunity from civil damages liability. See Harlow v. Fitzgerald, 457 U.S. 800 (1982). Before any discovery took place, the District Court granted summary judgment on the ground that the search was lawful, holding that the undisputed facts revealed that Anderson had had probable cause to search the Creighton’s home and that his failure to obtain a warrant was justified by the presence of exigent circumstances. App. to Pet. for Cert. 23a-25a.

[4]The Creightons appealed to the Court of Appeals for the Eighth Circuit, which reversed. Creighton v. St. Paul, 766 F.2d 1269 (1985). The Court of Appeals held that the issue of the lawfulness of the search could not properly be decided on summary judgment, because unresolved factual disputes made it impossible to determine as a matter of law that the warrantless search had been supported by probable cause and exigent circumstances. Id. at 1272-1276. The Court of Appeals also held that Anderson was not entitled to summary judgment on qualified immunity grounds, since the right Anderson was alleged to have violated—the right of persons to be protected from warrantless searches of their home unless the searching officers have probable cause and there are exigent circumstances—was clearly established. Ibid.

[5]Anderson filed a petition for certiorari, arguing that the Court of Appeals erred by refusing to consider his argument that he was entitled to summary judgment on qualified immunity grounds if he could establish as a matter of law that a reasonable officer could have believed the search to be lawful. We granted the petition, 478 U.S. 1003 (1986), to consider that important question.

II

[6]When government officials abuse their offices, “action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald, 457 U.S. at 814. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Ibid. Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. See, e.g., Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”); id. at 344-345 (police officers applying for warrants are immune if a reasonable officer could have believed that there was probable cause to support the application); Mitchell v. Forsyth, 472 U.S. 511, 528 (1985) (officials are immune unless “the law clearly proscribed the actions” they took); Davis v. Scherer, 468 U.S. 183, 191 (1984); id. at 198 (Brennan, J., concurring in part and dissenting in part); Harlow v. Fitzgerald, supra, at 819. Cf., e.g., Procunier v. Navarette, 434 U.S. 555, 562 (1978). Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action, Harlow, 457 U.S. at 819, assessed in light of the legal rules that were “clearly established” at the time it was taken, id. at 818.

[7]The operation of this standard, however, depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation.

But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Harlow would be transformed from a guarantee of immunity into a rule of pleading. Such an approach, in sum, would destroy “the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties,” by making it impossible for officials “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis, supra at 195.^[11]
It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell, supra, at 535, n. 12; but it is to say that in the light of pre-existing law the unlawfulness must be apparent. See, e.g., Malley, supra, at 344-345; Mitchell, supra, at 528; Davis, supra, at 191, 195.

[8]Anderson contends that the Court of Appeals misapplied these principles. We agree. The Court of Appeals’ brief discussion of qualified immunity consisted of little more than an assertion that a general right Anderson was alleged to have violated—the right to be free from warrantless searches of one’s home unless the searching officers have probable cause and there are exigent circumstances—was clearly established. The Court of Appeals specifically refused to consider the argument that it was not clearly established that the circumstances with which Anderson was confronted did not constitute probable cause and exigent circumstances. The previous discussion should make clear that this refusal was erroneous. It simply does not follow immediately from the conclusion that it was firmly established that warrantless searches not supported by probable cause and exigent circumstances violate the Fourth Amendment that Anderson’s search was objectively legally unreasonable. We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials—like other officials who act in ways they reasonably believe to be lawful—should not be held personally liable. See Malley, supra, at 344-345. The same is true of their conclusions regarding exigent circumstances.

[9]It follows from what we have said that the determination whether it was objectively legally reasonable to conclude that a given search was supported by probable cause or exigent circumstances will often require examination of the information possessed by the searching officials. But contrary to the Creightons’ assertion, this does not reintroduce into qualified immunity analysis the inquiry into officials’ subjective intent that Harlow sought to minimize. See Harlow, 457 U.S. at 815-820. The relevant question in this case, for example, is the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. Anderson’s subjective beliefs about the search are irrelevant.

[10]The principles of qualified immunity that we reaffirm today require that Anderson be permitted to argue that he is entitled to summary judgment on the ground that, in light of the clearly established principles governing warrantless searches, he could, as a matter of law, reasonably have believed that the search of the Creightons’ home was lawful.

III

* * * * *

[11]The Creightons argue that it is inappropriate to give officials alleged to have violated the Fourth Amendment—and thus necessarily to have unreasonably searched or seized—the protection of a qualified immunity intended only to protect reasonable official action. It is not possible, that is, to say that one “reasonably” acted unreasonably. The short answer to this argument is that it is foreclosed by the fact that we have previously extended qualified immunity to officials who were alleged to have violated the Fourth Amendment. See Malley, supra (police officers alleged to have caused an unconstitutional arrest); Mitchell v. Forsyth, 472 U.S. 511 (1985) (officials alleged to have conducted warrantless wiretaps). Even if that were not so, however, we would still find the argument unpersuasive. Its surface appeal is attributable to the circumstance that the Fourth Amendment’s guarantees have been expressed in terms of “unreasonable” searches and seizures. Had an equally serviceable term, such as “undue” searches and seizures been employed, what might be termed the “reasonably unreasonable” argument against application of Harlow to the Fourth Amendment would not be available—just as it would be available against application of Harlow to the Fifth Amendment if the term “reasonable process of law” had been employed there. The fact is that, regardless of the terminology used, the precise content of most of the Constitution’s civil-liberties guarantees rests upon an assessment of what accommodation between governmental need and individual freedom is reasonable, so that the Creightons’ objection, if it has any substance, applies to the application of Harlow generally. We have frequently observed, and our many cases on the point amply demonstrate, the difficulty of determining whether particular searches or seizures comport with the Fourth Amendment. See, e.g., Malley, supra, at 341. Law enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable should no more be held personally liable in damages than should officials making analogous determinations in other areas of law.

* * * * *

[12]For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.^[12]

It is so ordered.

Justice Stevens, with whom Justice Brennan and Justice Marshall join, dissenting.

* * * * *

[13]Concern for the depletion and diversion of public officials’ energies led the Court in Harlow to abolish the doctrine that an official would be deprived of immunity on summary judgment if the plaintiff alleged that the official had acted with malicious intent to deprive his constitutional rights. See, e.g., Wood v. Strickland, 420 U.S. 308, 322 (1975).

[14]The Court’s decision today, however, fails to recognize that Harlow’s removal of one arrow from the plaintiff’s arsenal at the summary judgment stage did not also preclude the official from advancing a good-faith reasonableness claim at trial if the character of his conduct as established by the evidence warranted this strategy. The rule of the Harlow case, in contrast, focuses on the character of the plaintiff’s legal claim and, when properly invoked, protects the government executive from spending his time in depositions, document review, and conferences about litigation strategy. Consistently with this overriding concern to avoid “the litigation of the subjective good faith of government officials,” 457 U.S., at 816, Harlow does not allow discovery until the issue whether the official’s alleged conduct violated a clearly established constitutional right has been determined on a motion for summary judgment. Id., at 818. Harlow implicitly assumed that many immunity issues could be determined as a matter of law before the parties had exchanged depositions, answers to interrogatories, and admissions.^[13]

* * * * *

[15]The Court errs by treating a denial of immunity for failure to satisfy the Harlow standard as necessarily tantamount to a ruling that the defendants are exposed to damages liability for their every violation of the Fourth Amendment. Such a denial would not necessarily foreclose an affirmative defense based on the Second Circuit’s thesis in Bivens that an officer may not be liable if his conduct complied with a lesser standard of reasonableness than the constitutional standard which it violated. The Court’s failure to recognize that federal agents may retain a partial shield from damages liability, although not necessarily from pretrial and trial proceedings, leads it to the erroneous conclusion that petitioner must have Harlow immunity or else none at all save the Fourth Amendment itself.

[16] Part III, I explain why the latter alternative is appropriate. For now, I assert the more limited proposition that the Court of Appeals quite correctly rejected Anderson’s claim that he is entitled to immunity under Harlow. Harlow does not speak to the extent, if any, of an official’s insulation from monetary liability when the official concedes that the constitutional right he is charged with violating was deeply etched in our jurisprudence, but argues that he reasonably believed that his particular actions comported with the constitutional command.

* * * * *

[17]The Court of Appeals also was correct in rejecting petitioner’s argument based on the holding in Harlow that the qualified-immunity issue ought to be resolved on a motion for summary judgment before any discovery has taken place. 457 U.S., at 818-819.^[14]
The Court of Appeals rejected this argument because it was convinced that the rule of law was clear. It also could have rejected the argument on an equally persuasive ground—namely, that the Harlow requirement concerning clearly established law applies to the rule on which the plaintiff relies, and that there was no doubt about the proposition that a warrantless entry into a home without probable cause is always unlawful. The court does not even reach the exigent-circumstances inquiry unless and until the defendant has shown probable cause and is trying to establish that the search was legal notwithstanding the failure of the police to obtain a warrant. Thus, if we assume that the Court of Appeals was correct in its conclusion that probable cause had not been established, it was also correct in rejecting petitioner’s claim to Harlow immunity, either because the exigent-circumstances exception to the warrant requirement was clearly established, or because a warrantless entry into a home without probable cause is always unlawful whether or not exigent circumstances are present.

* * * * *

[18]The good-faith argument advanced by petitioner might support a judgment in his favor after there has been a full examination of the facts, but it is not the kind of claim to immunity, based on the tentativeness or nonexistence of the constitutional rule allegedly violated by the officer, that we accepted in Harlow or in Mitchell.

III

[19]Although the question does not appear to have been argued in, or decided by, the Court of Appeals, this Court has decided to apply a double standard of reasonableness in damages actions against federal agents who are alleged to have violated an innocent citizen’s Fourth Amendment rights. By double standard I mean a standard that affords a law enforcement official two layers of insulation from liability or other adverse consequence, such as suppression of evidence. Having already adopted such a double standard in applying the exclusionary rule to searches authorized by an invalid warrant, United States v. Leon, 468 U.S. 897 (1984), the Court seems prepared and even anxious in this case to remove any requirement that the officer must obey the Fourth Amendment when entering a private home. I remain convinced that in a suit for damages as well as in a hearing on a motion to suppress evidence, “an official search and seizure cannot be both ‘unreasonable’ and ‘reasonable’ at the same time.” Id. at 960 (Stevens, J., dissenting).

* * * *

[20]Indeed, it is worth emphasizing that the probable-cause standard itself recognizes the fair leeway that law enforcement officers must have in carrying out their dangerous work. The concept of probable cause leaves room for mistakes, provided always that they are mistakes that could have been made by a reasonable officer. See 1 W. LAFAVE, SEARCH AND SEIZURE 567 (2d ed. 1987).

* * * * *

[21]Thus, until now the Court has not found intolerable the use of a probable-cause standard to protect the police officer from exposure to liability simply because his reasonable conduct is subsequently shown to have been mistaken. Today, however, the Court counts the law enforcement interest twice and the individual’s privacy interest only once.

[22]The Court’s double-counting approach reflects understandable sympathy for the plight of the officer and an overriding interest in unfettered law enforcement. It ascribes a far lesser importance to the privacy interest of innocent citizens than did the Framers of the Fourth Amendment. The importance of that interest and the possible magnitude of its invasion are both illustrated by the facts of this case. The home of an innocent family was invaded by several officers without a warrant, without the owner’s consent, with a substantial show of force, and with blunt expressions of disrespect for the law and for the rights of the family members. As the case comes to us, we must assume that the intrusion violated the Fourth Amendment. See Steagald v. United States, 451 U.S. 204, 211 (1981). Proceeding on that assumption, I see no reason why the family’s interest in the security of its own home should be accorded a lesser weight than the Government’s interest in carrying out an invasion that was unlawful. Arguably, if the Government considers it important not to discourage such conduct, it should provide indemnity to its officers. Preferably, however, it should furnish the kind of training for its law enforcement agents that would entirely eliminate the necessity for the Court to distinguish between the conduct that a competent officer considers reasonable and the conduct that the Constitution deems reasonable. “Federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law.” Butz v. Economou, 438 U.S., at 507. On the other hand, surely an innocent family should not bear the entire risk that a trial court, with the benefit of hindsight, will find that a federal agent reasonably believed that he could break into their home equipped with force and arms but without probable cause or a warrant.

* * * * *

Anderson v. Creighton – Audio and Transcript of Oral Argument

Footnotes

11. The dissent, which seemingly would adopt this approach, seeks to avoid the unqualified liability that would follow by advancing the suggestion that officials generally (though not law enforcement officials, see post, at 654, 661-662, and officials accused of violating the Fourth Amendment, see post, at 659-667) be permitted to raise a defense of reasonable good faith, which apparently could be asserted and proved only at trial. See post, at 653. But even when so modified (and even for the fortunate officials to whom the modification applies) the approach would totally abandon the concern—which was the driving force behind Harlow’s substantial reformulation of qualified-immunity principles—that “insubstantial claims” against government officials be resolved prior to discovery and on summary judgment if possible. Harlow, 457 U.S., at 818-819. A passably clever plaintiff would always be able to identify an abstract clearly established right that the defendant could be alleged to have violated, and the good-faith defense envisioned by the dissent would be available only at trial. ↵

     

12. Noting that no discovery has yet taken place, the Creightons renew their argument that, whatever the appropriate qualified immunity standard, some discovery would be required before Anderson’s summary judgment motion could be granted. We think the matter somewhat more complicated. One of the purposes of the Harlow qualified immunity standard is to protect public officials from the “broad-ranging discovery” that can be “peculiarly disruptive of effective government.” 457 U.S., at 817 (footnote omitted). For this reason, we have emphasized that qualified immunity questions should be resolved at the earliest possible stage of a litigation. Id., at 818. See also Mitchell v. Forsyth, 472 U.S. 511, 526 (1986). Thus, on remand, it should first be determined whether the actions the Creightons allege Anderson to have taken are actions that a reasonable officer could have believed lawful. If they are, then Anderson is entitled to dismissal prior to discovery. Cf. ibid. If they are not, and if the actions Anderson claims he took are different from those the Creightons allege (and are actions that a reasonable officer could have believed lawful), then discovery may be necessary before Anderson’s motion for summary judgment on qualified immunity grounds can be resolved. Of course, any such discovery should be tailored specifically to the question of Anderson’s qualified immunity. ↵

     

13. “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Harlow, 457 U.S., at 818. Logically, this reasoning does not extend to cases such as this one in which both the constitutional command and an exception to the rule for conduct that responds to a narrowly defined category of factual situations are clearly established, and the dispute is whether the situation that the officer confronted fits within the category. ↵

     

14. The Harlow standard of qualified immunity precludes a plaintiff from alleging the official’s malice in order to defeat a qualified-immunity defense. By adopting a purely objective standard, however, Harlow may be inapplicable in at least two types of cases. In the first, the plaintiff can only obtain damages if the official’s culpable state of mind is established. See, e.g., Allen v. Scribner, 812 F.2d 426, 436 (CA9 1987); Note, Qualified Immunity for Government Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation, 95 YALE L. J. 126, 136-137 (1985). In the second, an official’s conduct is not susceptible to a determination that it violated clearly established law because it is regulated by an extremely general and deeply entrenched norm, such as the command of due process or probable cause. The principle is clearly established, but whether it would brand the official’s planned conduct as illegal often cannot be ascertained without reference to facts that may be in dispute. See Reardon v. Wroan, 811 F.2d 1025 (CA7 1987) (police officers denied qualified immunity on summary judgment because their conclusion of probable cause could be found objectively unreasonable when the facts are viewed in light most favorable to the plaintiffs); Jasinski v. Adams, 781 F.2d 843 (CA11 1986) (per curiam) (federal agent denied qualified immunity on summary judgment because of genuine issue of probable cause); Deary v. Three UnNamed Police Officers, 746 F.2d 185 (CA3 1984) (police officers denied qualified immunity on summary judgment because of genuine issue of probable cause). ↵

Notes on Anderson v. Creighton

Qualified Immunity and the Plaintiff’s Prima Facie Case

1. 1. Justice Stevens’ dissenting opinion in Anderson proposed that the qualified immunity defense is unavailable where the plaintiff must prove an unreasonable search and seizure to establish a Fourth Amendment violation. While the majority rejected Justice Stevens’ assertion that “unreasonableness” for Fourth Amendment purposes is the same as a negligence standard, should the official be barred from raising qualified immunity where plaintiff must prove defendant’s negligence, recklessness or intent to establish a constitutional violation?
      1. In Goodwin v. Circuit Court of St. Louis County, 729 F.2d 541, 545-6 (8th Cir. 1984), the court of appeals affirmed the district court’s refusal to instruct the jury on the qualified immunity:
         

         We … hold that the defense of “good faith” or qualified immunity is not available in this case. By definition, there can be no liability in such an action unless the plaintiff shows that the defendant intentionally discriminated against her because of her sex… . If the jury finds that intentional discrimination has occurred, and if, as in this case, the evidence is sufficient to support that finding, “good faith” on the part of the defendant is logically excluded.

         See also Miller v. Solem, 728 F.2d 1020, 1025 (8th Cir. 1984) (“if an officer recklessly disregards an inmate’s need for safety he certainly cannot maintain an objective good faith immunity defense.”); Gary S. Gildin, The Standard of Culpability in Section 1983 and Bivens Actions: The Prima Facie Case, Qualified Immunity and the Constitution, 11 HOFSTRA L. REV. 557 (1983).

      2. In Saucier v. Katz, 533 U.S. 194 (2001), the Court reversed the court of appeals’ ruling that the qualified immunity test is identical to the standard governing the merits of claims of excessive force under the Fourth Amendment:
         

         In Graham, we held that claims of excessive force in the context of arrests or investigatory stops should be analyzed under the Fourth Amendment’s “objective reasonableness standard,” not under substantive due process principles. Because “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation,” the reasonableness of the officer’s belief as to the appropriate level of force should be judged from that on-scene perspective. We set out a test that cautioned against the “20/20 vision of hindsight” in favor of deference to the judgment of reasonable officers on the scene. Graham sets forth a list of factors relevant to the merits of the constitutional excessive force claim, “requiring careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed.

         The qualified immunity inquiry, on the other hand, has a further dimension. The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.

         Graham does not always give a clear answer as to whether a particular application of force will be deemed excessive by the courts. This is the nature of a test which must accommodate limitless factual circumstances. This reality serves to refute respondent’s claimed distinction between excessive force and other Fourth Amendment contexts; in both spheres the law must be elaborated from case to case. Qualified immunity operates in this case, then, just as it does in others, to protect officers from the sometimes “hazy border between excessive and acceptable force,” and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful….

         The deference owed officers facing suits for alleged excessive force is not different in some qualitative respect from the probable cause inquiry in Anderson. Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and in those situations courts will not hold that they have violated the Constitution. Yet, even if a court were to hold that the officer violated the Fourth Amendment by conducting an unreasonable, warrantless search, Anderson still operates to grant officers immunity for reasonable mistakes as to the legality of their actions. The same analysis is applicable in excessive force cases, where in addition to the deference officers receive on the underlying constitutional claim, qualified immunity can apply in the event the mistaken belief was reasonable.

      3. In Beard v. Mitchell, 604 F.2d 485, 496 (7th Cir. 1979), the court of appeals held the trial court’s instruction that plaintiff must prove recklessness to prevail does not duplicate defendant’s burden of proving the qualified immunity because defendant “was entitled to prove that his belief in the legality of his acts was reasonable but was not required to prove that his conduct was reasonable.” See also McCann, The Interrelationship of Immunity and the Prima Facie Case in Section 1983 and Bivens Actions, 21 GONZAGA L. REV. 117, 139 (1985/86) (“[T]here is a distinction between the negligence standard in the prima facie case, which analyzes the reasonableness of the defendant’s conduct with respect to the plaintiff, and Harlow’s objective immunity standard, which addresses the reasonableness of the defendant’s knowledge of constitutional rights.”). Is the distinction drawn in Beard v. Mitchell a viable one? Could it ever be reasonable for an official to believe his conduct was proper yet be unreasonable to act on that belief? May the immunity defense be distinguished on the ground that it addresses only the state official’s knowledge that his conduct violated the Constitution and not the reasonableness of his conduct under all the circumstances? Would a jury be able to understand and apply this distinction? Would the evidence that a jury would find relevant in determining whether defendant acted negligently be different than the evidence it would consider apposite to whether defendant had reason to know his actions were unconstitutional? See also Llanguo v. Mingey, 763 F.2d 1560, 1569 (7th Cir. 1985) (en banc) (“to go on and instruct the jury further that even if the police acted without probable cause they should be exonerated if they reasonably (though erroneously) believed that they were acting reasonably is to confuse the jury and give the defendants two bites of the apple.”); Balcerzak, Qualified Immunity for Government Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation, 95 YALE L.J. 126, 144-47 (1985).
      4. Some courts have attempted to reconcile the qualified immunity defense with plaintiff’s burden of proving culpability in its prima facie case by holding the immunity issue is a question of law for the judge to decide. How is the judge to determine immunity where material facts relevant to immunity are in dispute? In Warren v. City of Lincoln, Nebraska, 816 F.2d 1254, 1262 (8th Cir. 1987), the court described the roles of the judge and jury as follows:
         

         On remand, the jury should initially determine under proper instructions whether the arrest of Warren was a pretext employed to gather evidence of unrelated crimes. If the jury determines that it was a pretext, then the district court should determine whether the law prohibiting pretextual arrests was clearly established in 1985. If the jury finds that the arrest was not pretextual but rather a lawful arrest pursuant to a traffic warrant, then it should determine whether Warren was detained beyond the time necessary to process the traffic offense for questioning on an unrelated matter. If the jury determines that he was so detained, then the district court should determine whether the law prohibiting such a detention was clearly established in 1985. The jury should finally determine whether the officers continued to question Warren after he requested counsel. If it answers this question affirmatively, then the district court should determine whether the law prohibiting continued custodial questioning after request for counsel was clearly established in 1985.

         When is a Right Clearly Established—Factual Proximity

   2. How close factually must the relevant precedent cases be to the facts of the Anderson case in order for the trial court to find that “a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed?”
      1. Why did the Supreme Court in Davis v. Scherer find that the right to a pre-termination hearing was not clearly established by its own precedents? Under Davis, how factually on point must a precedent be to “clearly establish” the constitutional right allegedly violated in a Section 1983 action?
      2. In Lassiter v. Alabama A & M University, 28 F.3d 1146, 1149-50 (11th Cir. 1994) (en banc), the Eleventh Circuit set forth the principles it understood to control qualified immunity cases:
         

         That qualified immunity protects government actors is the usual rule; only in exceptional cases will government actors have no shield against claims made against them in their individual capacities…

         For the law to be clearly established to the point that qualified immunity does not apply, the law must earlier have been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that “what he is doing” violates federal law…

         “General propositions have little to do with the concept of qualified immunity” … ”If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant.”…  For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances.

         See also Ashcroft v. Iqbal, 563 U.S. 731, 741 (2011) (“We do not require a case directly on point, but existing precedent must have placed the … constitutional question beyond debate.”); McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1988) (“[P]articularly in First Amendment cases, where a sophisticated balancing of interests is required to determine whether the plaintiff’s constitutional rights have been violated, only infrequently will it be ‘clearly established’ that a public employee’s speech on a matter of public concern is constitutionally protected.”).

      3. In Hope v. Pelzer, 536 U.S. 730 (2002), the Court reviewed the decision of the Court of Appeals for the Eleventh Circuit granting summary judgment to state prison officials who were sued for subjecting Larry Hope to cruel and unusual punishment. The officials allegedly had required Hope to stand handcuffed to a hitching post for seven hours with his two hands shackled relatively close together at face level; removed Hope’s shirt, causing the sun to burn his skin; afforded Hope no bathroom breaks; provided Hope water only once or twice in the seven hours; and taunted Hope about his thirst by giving water to some dogs, bringing the water cooler close to Hope, and then kicking the water cooler over, spilling the water to the ground. The court of appeals found the officials immune because the facts of the relevant precedent cases, while analogous, were not materially similar to Hope’s situation. Holding the court of appeals had applied the wrong standard for immunity, the Supreme Court reversed:
         

         Officers sued in a civil action for damages under 42 U.S.C. § 1983 have the same right to fair notice as do defendants charged with the criminal offense defined in 18 U.S.C. § 242. Section 242 makes it a crime for a state official to act “willfully” and under color of law to deprive a person of rights protected by the Constitution. In United States v. Lanier, 520 U.S. 259, 137 L. Ed.2d 432, 117 S. Ct. 1219 (1997), we held that the defendant was entitled to “fair warning” that his conduct deprived his victim of a constitutional right, and that the standard for determining the adequacy of that warning was the same as the standard for determining whether a constitutional right was “clearly established” in civil litigation under § 1983.

         In Lanier, the Court of Appeals had held that the indictment did not charge an offense under § 242 because the constitutional right allegedly violated had not been identified in any earlier case involving a factual situation “‘fundamentally similar'” to the one in issue.  We reversed, explaining that the “fair warning” requirement is identical under § 242 and the qualified immunity standard. We pointed out that we had “upheld convictions under § 241 or § 242 despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” Id., at 269. We explained:

         This is not to say, of course, that the single warning standard points to a single level of specificity sufficient in every instance. In some circumstances, as when an earlier case expressly leaves open whether a general rule applies to the particular type of conduct at issue, a very high degree of prior factual particularity may be necessary. But general statements of the law are not inherently incapable of giving fair and clear warning, and in other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful,’ Anderson, supra, at 640. 74 F.3d 266 at 270-271 (citation omitted).

         Our opinion in Lanier thus makes clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances. Indeed, in Lanier, we expressly rejected a requirement that previous cases be “fundamentally similar.” Although earlier cases involving “fundamentally similar” facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding. The same is true of cases with “materially similar” facts. Accordingly, pursuant to Lanier, the salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional.

         Hope, 536 U.S. at 739-41. See also Weise v. Casper, 562 U.S. 976 (2010) (Ginsburg, J., dissenting from denial of certiorari) (“[s]olidly established law ‘may apply with obvious clarity’ even to conduct startling in its novelty.”); DeBoer v. Pennington, 206 F. 3d 857, 864-65 (9th Cir. 2000) (“[W]hen the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous pre-existing case law is not required…. Thus, a constitutional right may be clearly established by common sense as well as closely analogous pre-existing case law.”); McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir. 1992) (“[T]hat no precisely analogous case exists does not defeat McDonald’s claim. It would create perverse incentives indeed if a qualified immunity defense could succeed against those types of claims that have not previously arisen because the behavior alleged is so egregious that no like case is on the books…. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune … because no previous case had found liability in those circumstances.”)

   3. In Messerschmidt v. Millender, 565 U.S. 535 (2012), the Court held that the court of appeals erred in denying qualified immunity to a police officer who applied for, and conducted a search pursuant to, a warrant that was not supported by probable cause. In finding that no reasonable officer could have believed the warrant was valid, the court of appeals relief upon Groh v. Ramirez, 540 U.S. 551 (2004). In Groh, the Court had denied qualified immunity to officers who conduct a search pursuant to a warrant that described the house to be searched, but did not detail the items to be seized. The Messerschmidt Court held that Groh did not clearly establish that the search in issue violated the Fourth Amendment:
      

      In contrast to Groh, any defect here would not have been obvious from the face of the warrant. Rather, any arguable defect would have become apparent only upon a close parsing of the warrant application, and a comparison of the affidavit to the terms of the warrant to determine whether the affidavit established probable cause to search for all items listed in the warrant. This is not an error that “just a simple glance” would have revealed.

      Messerschmidt, 565 U.S. at 555-56.

      1. By what standard can the trial court determine whether the facts of the relevant precedent cases proscribing warrantless searches are sufficiently analogous so that a reasonable officer could not have believed that Anderson’s actions were lawful?
      2. By what standard can the trial court determine whether the facts of the relevant precedent cases proscribing warrantless searches are sufficiently distinguishable so that a reasonable officer could have believed that Anderson’s actions were lawful?
   4. Does the Anderson standard accurately reflect the questions that the FBI agent considered prior to entering the Creighton’s residence? In Savidge v. Fincannon, 836 F.2d 898, 908-09 (5th Cir. 1988), the court of appeals declined to engage in narrow factual distinction of precedents in evaluating whether defendants should have known of the constitutional right to minimally adequate care and treatment for institutionalized persons:
      

      In this circuit, the right of civilly committed retardates to “such individual treatment as will help … them to be cured or to improve [their] mental condition” is at least as old as Wyatt v. Aderholt. In that case we also affirmed the plaintiffs’ right to a “humane” and presumably safe environment. Wyatt survives Lelsz; it was certainly good law in the early 1980’s when most of the damage that the plaintiffs allege in this case took place.

      The defendants contend that Wyatt, unlike Youngberg, depends in its reasoning upon the state’s participation in a formal civil commitment proceeding. This observation, though arguably correct, must not be allowed to obscure the fact that as a general matter the duty to provide institutionalized retardates with constitutionally adequate care was firmly established in this circuit by 1980. We reject any approach to immunity doctrine that requires us to imagine the defendants saying to themselves, “We can safely give Jonathan Savidge inadequate treatment; he was not committed to the FWSS through formal judicial proceedings and so the rationale in Wyatt may not apply to him.” We simply do not envision reasonable doctors and administrators calibrating their responsibilities to each child on the basis of such narrow distinctions. If the allegations in the plaintiff’s complaint are true, and they must be accepted as true, the individual defendants should have known that they were treating Jonathan Savidge in an unconstitutional manner.

   5. In Anderson, the officers conducted the search without benefit of a warrant. In Malley v. Briggs, 475 U.S. 335 (9186), the Court held the fact that a neutral magistrate had issued a warrant did not per se confer qualified immunity upon the officers who executed the warrant. Rather, if “a reasonably well-trained officer in [defendant’s] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant,” the officer would not be immune. Malley, 475 U.S. at 345. In Messerschmidt v. Millender, 565 U.S. 535 (2012), the Court ruled that “the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner.” Id. at 546. The “threshold for establishing [an] exception [to conferral of qualified immunity] is a high one,” id., met only on “rare” occasions. Id. at 546. The Court further reasoned that the fact that the officer sought and obtained approval from his superiors and the district attorney was “certainly pertinent in assessing whether they could have held a reasonable belief that the warrant was supported by probable cause.” Id. at 555. Justices Sotomayor and Ginsberg dissented from the majority’s presumption immunizing officers whenever a neutral magistrate has approved a search:
      

      In cases in which it would be not only wrong but unreasonable for a well-trained officer to seek a warrant, allowing a magistrate’s approval to immunize the police officer’s unreasonable action retrospectively makes little sense… . To the extent it proposes to cut back on Malley, the majority will … encourag[e] sloppy police work and exacerbat[e] the risk that searches will not comport with the requirements of the Fourth Amendment.

      Messerschmidt, 565 U.S. at 572-73 (Sotomayor, J., dissenting). The dissenting justices likewise disagreed with the majority’s finding that approval by the officer’s superior supported conferral of immunity.

      Giving weight to that fact [that two superior police officers and the district attorney reviewed the warrant application] would turn the Fourth Amendment on its head…. The effect of the Court’s rule … is to hold blameless the “plainly incompetent” action of the police officer seeking a warrant because of the “plainly incompetent” approval of his superiors and the district attorney. Under the majority’s test, four wrongs apparently make a right. I cannot agree, however, that the “objective legal reasonableness” of an official’s acts” turns on the number of police officers or prosecutors who improperly sanction a search that violates the Fourth Amendment.

      Messerschmidt, 565 U.S. at 573 (Sotomayor, J., dissenting). See also id. at 558 (Kagan, J. concurring in part and dissenting in part) (“All of these individuals … are ‘part of the prosecution team.’ To make their views relevant is to enable those teammates (whether acting in good or bad faith) to confer immunity upon each other for unreasonable conduct—like applying for a warrant without anything resembling probable cause.”).

      The Impact of Iqbal and Anderson on Plaintiff’s Ability to Successfully Plead a Claim under Section 1983

   6. In Gomez v. Toledo, 446 U.S. 635, 640 (1980), the Court held that qualified immunity was an affirmative defense that must be pleaded by the defendant. The Court relied on the fact that neither the language nor the legislative history of Section 1983 requires plaintiff to allege anything beyond a constitutional violation caused by a person acting under color of law to state a claim for relief.Later, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court required plaintiff to plead “plausibly” that defendants were not entitled to immunity. The Iqbal Court concluded that it had to decide whether “plaintiff … plead factual matter that, if taken as true, states a claim that [defendants] deprived him of his clearly established constitutional rights.” Id. at 666. Since Iqbal, most lower federal courts have held plaintiffs in Section 1983 actions now need to plead facts that make it plausible that qualified immunity does not bar the claim. See Argueta v. United States Immigration Customs Enforcement, 643 F.3d 60 (3rd Cir. 2011); (reversing district court’s denial of motion to dismiss complaint on grounds of qualified immunity); Randall v. Scott, 610 F.3d 701 (11th Cir. 2010); Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009); Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009). But see Evans ex rel. Evans v. Richardson, 2010 U.S. Dist. LEXIS 26923 (N.D. Ill. 2010) (noting that plaintiffs were not required to plead allegations to defeat qualified immunity, citing pre-Iqbal decision in Jacobs v. City of Chicago, 215 F.3d 758, 770 (7th Cir. 2000).
   7. How can a plaintiff plead factual allegations that make it plausible that a reasonable officer could not have believed that a search was lawful, “in light of clearly established law and the information the searching officers possessed,” where only the officers possess knowledge of the facts that caused them to conduct the search?
      1. Some courts have strictly applied the Iqbal plausibility standard, regardless of whether plaintiff had access to factual information necessary to satisfy the standard. In Ibrahim v. Dept. of Homeland Security, 2009 U.S. Dist. LEXIS 64619 (N.D. Cal. 2009), plaintiff was a Muslim doctoral student at Stanford University. When Ms. Ibrahim attempted to fly to Kuala Lumpur to present her research at a conference sponsored by Stanford, she was detained because her name was on the “no fly” list established by the Transportation Security Administration. Ms. Ibrahim alleged that she had no criminal record and no connections or association with terrorists. The plaintiff further alleged that she was discriminated against because of her religion and national origin.

         The district court noted that in order to state a claim for discrimination, the plaintiff had to show that defendant acted “not for a neutral investigative reason but for the purpose of discriminating” based on “race, religion or national origin.” Id. at *23. The court reasoned that under Iqbal, plaintiff’s allegations that she “was Muslim and detained” was not sufficient to make it plausible that she was detained because she was Muslim.

         The Ibrahim court conceded that “a good argument can be made” that the Iqbal pleading standard would be “too demanding” for plaintiffs who do not have access to important facts. Id. at *33. The court further admitted that “[v]ictims of discrimination and profiling will often not have specific facts to plead without benefit of discovery.” Id. Nonetheless, the court concluded that regardless of whether plaintiff had access to information, the lower courts were bound to apply the law as “laid down by the Supreme Court.” Id. See also Santiago v. Warminister Township, 629 F.3d 121, 134 n.10 (3rd Cir. 2010) (“We recognize that plaintiffs may face challenges in drafting claims despite an information asymmetry between plaintiffs and defendants. Given that reality, reasonable minds may take issue with Iqbal and urge a different balance between ensuring, on the one hand, access to the courts so that victims are able to obtain recompense and, on the other, ensuring that municipalities and police officers are not unnecessarily subjected to the burdens of litigation…. The Supreme Court has struck the balance however, and we abide by it.”); Shihadeh v. Smeal, 2011 WL 17443398 at * 3 (E.D. Pa. 2011) (“To be extent that Plaintiff is arguing that this Court should permit discovery in order to give him access to information with which he might state a cognizable [§ 1983] claim against Defendant in her individual capacity, we find that … Iqbal… disallow[s] such a practice by placing the burden of factual specificity on pleadings on plaintiffs.”); Padron v. Wal-Mart Stores, Inc., 783 F.Supp. 2d 1042, 1048 (N.D. Ill. 2011) (“Twombly discourages correcting perceived informational asymmetry through discovery”).

      2. Some courts have refused to dismiss the complaint before discovery where necessary facts were in the sole possession of the defendant. In Morgan v. Hubert, 335 Fed. Appx. 466 (5th Cir. 2009), plaintiff was a prisoner in protective custody at the Orleans Parish Prison. Because of Hurricane Katrina, all the prisoners had to be transferred to the Elayn Hunt Correctional Center (EHCC). Upon arrival at the EHCC, Morgan and other inmates in protective custody informed the guards of their status and asked to be segregated from the general population. Despite his protest, the guard placed Morgan with the general prison population. Thirty minutes after arriving, Morgan was beaten and stabbed in the head and neck. Morgan filed a Section 1983 action against the warden of the EHCC alleging violation of the Eighth Amendment. Warden Hubert moved to dismiss on the basis of qualified immunity.

         The court of appeals noted that to have violated the Eighth Amendment, Warden Hubert must have known the facts from which he reasonably could have concluded an excessive risk of serious harm was present and subjectively decided to disregard that risk. Plaintiff’s complaint failed to state specifically when Warden Hubert knew of the prison transfers or what policies he adopted concerning the handling of prisoners in protective custody. However, the court reasoned, “we do not require a plaintiff to plead facts ‘peculiarly within the knowledge of defendants’ … and the facts omitted fall squarely within that category.”  Id. at 472.

         While denying the motion to dismiss, the court remained “mindful that the protection afforded by qualified immunity applies to the lawsuit itself, and not merely to liability, and thus the issue should be resolved as early as possible.”  Id. The court of appeals remanded for discovery limited to the issue of qualified immunity and instructed the district court to decide the immunity issue once that discovery is complete.  Id. at 473-74.  See also Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir. 2010) (Reasoning that prisoners filing claims of constitutional violations by prison officials will “rarely suffer from information asymmetry” because they will learn the justification for the challenged conduct through the administrative claims they must bring as a prerequisite to suit under the Prison Litigation Reform Act.  However, ”if the complaint alleges that the prisoner received no explanation in the grievance process (or was coerced into not pursing a grievance), claims that the officer lacked justification “may become plausible.”); Scott Dodson, New Pleading, New Discovery, 109 MICH. L. REV. 53, 72 (2010) (noting that when important facts are in the sole possession of the defendant, plaintiff should be allowed limited discovery to obtain them; claims dealing with “the defendant’s state of mind or secretive conduct” would be very hard to plead plausibly unless plaintiff was allowed to conduct limited discovery); Suzette M. Malveaux, Front Loading and Heavy Lifting! How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 LEWIS & CLARK L. REV. 65, 106-107 (2010) (reasoning that courts should allow plaintiffs to conduct “pre-dismissal” or “plausibility” discovery when they are not in possession of important facts to “prevent unjust dismissals of otherwise worthy claims”); Ray Worthy Campbell, Getting a Clue: Two Stage Complaint Pleadings as a Solution to The Conley-Iqbal Dilemma, 114 PENN ST. L. REV. 1191, 1239 (2010) (proposing “bifurcating” of the pleading stage allowing plaintiff to submit a simple complaint and then submit a more detailed complaint following limited discovery).

      3. Could plaintiff’s counsel rely upon Fed. R. Civ. P. 11(b)(3) to survive a motion to dismiss where defendants are in sole possession of facts necessary to state a claim for relief? Rule 11(b)(3) provides that by signing a complaint, counsel certifies that
         

         The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

         In Luttman v. Sheriff of Jay County, Case No. 1:10-CV-66 (N.D. Ind. May. 13, 2010), plaintiff filed a Section 1983 action against the Sheriff of Jay County after a police dog bit Luttman during the course of his arrest. The complaint did not include any factual allegations regarding the Sheriff’s personal involvement in, or supervisory responsibility for, alleged constitutional deprivations. The district court rejected plaintiff’s argument that the court should delay dismissal of the complaint to permit plaintiff to conduct discovery concerning the policies and practices of the Sheriff’s Department. However, the court, suggested:

         This argument might have some legs to it if backed-up with the type of representation required by Rule 11(b)(3) …

         Notably absent from any of Luttman’s filings … is so much as a whisper that he has the facts to support an official capacity claim or, in the words of Rule 11(b)(3), he will have them “after a reasonable opportunity for … discovery.” Indeed, Luttman’s filings either totally avoid mentioning the claim, as in his complaint, or merely offer the argument that he may replead against Sheriff Newton “if future discovery reveals evidence” providing a basis to do so. (Resp. Br. 2-3). Both submissions fall short of Rule 11(b)(3).

         Luttman, 2010 U.S. Dist. LEXIS 47536 at **7. See also Elan Microelectronics Corp. v. Apple, Inc., 2009 U.S. Dist. LEXIS 83715 at *12-13 (N.D. Cal. 2009) (“The portion of Rule 11(b)(3) on which Apple is relying merely relieves the attorney … from certifying that he or she already possesses evidentiary support for the factual allegations, it does not release the party from the obligation to advance sufficient factual allegations to satisfy Rule 8….  If … Apple still chooses to rely on Rule 11(b)(3), it should plainly allege infringement as a factual matter (and with the level of specificity required under Rule 8 and Twombly and Iqbal), and use Rule 11(b)(3) only for the purpose of relieving counsel from the obligation it would otherwise have to certify that it already possesses evidentiary support for all the factual allegations.”). But see Edward A. Hartnett, Responding to Twombly and Iqbal: Where do we go from here?, 95 IOWA L. REV. 24, 35 (2010) (arguing that it would not help a plaintiff “to try to invoke Rule 11(b)(3) in order to masquerade a conclusion applying the law to the facts as a factual allegation” because the court would easily conclude that “discovery is not likely to lead to evidence supporting the allegation.”).

      4. If plaintiff can assert sufficient factual allegations to make it plausible that defendant does not have qualified immunity on one claim for relief, many plaintiff engage in discovery on that claim to unearth facts in defendant’s possession that will enable plaintiff to assert additional claims?

         1. The 2000 amendment to Fed. R. Civ. P. 26(b) changed the scope of discovery from matter relevant “to the subject matter of the action” to “matter that is relevant to any party’s claim or defense.” However, “[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”
         2. In Ibrahim v. Dept. of Homeland Security, 2009 U.S. Dist. LEXIS 64619 (N.D. Cal. 2009), the court dismissed plaintiff’s equal protection claim despite the fact plaintiff may not have had access to facts necessary to state a claim. The court found the harshness of that outcome mitigated by the fact that plaintiff pleaded a viable claim for deprivation of her rights under Fourth Amendment.
            

            During discovery, Ibrahim can inquire into facts that bear on the incident, including why her name was on the [no-fly] list. If enough facts emerge, then she can move to amend and to reassert her discrimination claims at that time.

            Id. at *33. But see Luttman v. Sheriff of Jay County, Case No. 1:10-CV-66 (N.D. Ind. May. 13, 2010) (Despite fact that plaintiff had valid Section 1983 claim against Deputy Sheriff, court refused plaintiff’s request to make dismissal of claim against Sheriff provisional to permit plaintiff to conduct discovery on policies and practices of Sheriff’s Department).

         3. May plaintiff successfully avoid dismissal under Iqbal by filing the Section 1983 claim in state court? How is defendant likely to respond? See 28 U.S.C. § 1441(a).

      5. May plaintiff obtain facts necessary to satisfy Iqbal by utilizing pre-suit discovery authorized by state rules and then filing the lawsuit in federal court? See Pa. R. Civ. P. 4003.8 (“a plainitff may obtain pre-complaint discovery where the information sought is material and necessary … and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person.”); Scott Dodson, Federal Pleading and State Presuit Discovery, 14 LEWIS & CLARK L. REV. 43 (2010).

   8. After Davis and Anderson, is anyone likely to file a Section 1983 action seeking to apply general constitutional rules to a new factual situation? If such an action is filed, will the court ever reach the issue of whether the government’s conduct violates the Constitution?

      Mullenix v. Luna, 577 U.S. 7 (2015)

      Opinion

      PER CURIAM.

      [1]On the night of March 23, 2010, Sergeant Randy Baker of the Tulia, Texas Police Department followed Israel Leija, Jr., to a drive-in restaurant, with a warrant for his arrest. When Baker approached Leija’s car and informed him that he was under arrest, Leija sped off, headed for Interstate 27. Baker gave chase and was quickly joined by Trooper Gabriel Rodriguez of the Texas Department of Public Safety (DPS).

      [2]Leija entered the interstate and led the officers on an 18-minute chase at speeds between 85 and 110 miles per hour. Twice during the chase, Leija called the Tulia Police dispatcher, claiming to have a gun and threatening to shoot at police officers if they did not abandon their pursuit. The dispatcher relayed Leija’s threats, together with a report that Leija might be intoxicated, to all concerned officers.

      [3]As Baker and Rodriguez maintained their pursuit, other law enforcement officers set up tire spikes at three locations. Officer Troy Ducheneaux of the Canyon Police Department manned the spike strip at the first location Leija was expected to reach, beneath the overpass at Cemetery Road. Ducheneaux and the other officers had received training on the deployment of spike strips, including on how to take a defensive position so as to minimize the risk posed by the passing driver.

      [4]DPS Trooper Chadrin Mullenix also responded. He drove to the Cemetery Road overpass, initially intending to set up a spike strip there. Upon learning of the other spike strip positions, however, Mullenix began to consider another tactic: shooting at Leija’s car in order to disable it. Mullenix had not received training in this tactic and had not attempted it before, but he radioed the idea to Rodriguez. Rodriguez responded “10-4,” gave Mullenix his position, and said that Leija had slowed to 85 miles per hour. Mullenix then asked the DPS dispatcher to inform his supervisor, Sergeant Byrd, of his plan and ask if Byrd thought it was “worth doing.” Before receiving Byrd’s response, Mullenix exited his vehicle and armed with his service rifle, took a shooting position on the overpass, 20 feet above I-27. Respondents allege that from this position, Mullenix still could hear Byrd’s response to “stand by” and “see if the spikes work first.”^[15]

      [5]As Mullenix waited for Leija to arrive, he and another officer, Randall County Sheriff’s Deputy Tom Shipman, discussed whether Mullenix’s plan would work and how and where to shoot the vehicle to best carry it out. Shipman also informed Mullenix that another officer was located beneath the overpass.

      [6]Approximately three minutes after Mullenix took up his shooting position, he spotted Leija’s vehicle, with Rodriguez in pursuit. As Leija approached the overpass, Mullenix ^{fired six shots. Leija’s car continued forward beneath the overpass, where it engaged the spike strip, hit the median, and rolled 2 1/2 times. It was later determined that Leija had been killed by Mullenix’s shots, four of which struck his upper body. There was no evidence that any of Mullenix’s shots hit the car’s radiator, hood, or engine block.}

      [7]Respondents sued Mullenix under Rev. Stat. § 1979, 42 U.S.C. § 1983, alleging that he had violated the Fourth Amendment by using excessive force against Leija. Mullenix moved for summary judgment on the ground of qualified immunity, but the District Court denied his motion, finding that “[t]here are genuine issues of fact as to whether Trooper Mullenix acted recklessly, or acted as a reasonable, trained peace officer would have acted in the same or similar circumstances.”

      [8]Mullenix appealed, and the Court of Appeals for the Fifth Circuit affirmed. 765 F.3d 531 (2014). The court agreed with the District Court that the “immediacy of the risk posed by Leija is a disputed fact that a reasonable jury could find either in the plaintiffs’ favor or in the officer’s favor, precluding us from concluding that Mullenix acted objectively reasonably as a matter of law.” Id., at 538.

      [9]Judge King dissented. She described the “‘fact issue’ referenced by the majority” as “simply a restatement of the objective reasonableness test that applies to Fourth Amendment excessive force claims,” which, she noted, the Supreme Court has held “‘is a pure question of law.’” Id., at 544-545 (quoting Scott v. Harris, 550 U.S. 372, 381, n.8, 127 S. Ct. 1769, 167 L. Ed.2d 686 (2007)). Turning to that legal question, Judge King concluded that Mullenix’s actions were objectively reasonable. When Mullenix fired, she emphasized, he knew not only that Leija had threatened to shoot the officers involved in his pursuit, but also that Leija was seconds away from encountering such an officer beneath the overpass. Judge King also dismissed the notion that Mullenix should have given the spike strips a chance to work. She explained that because spike strips are often ineffective, and because officers operating them are vulnerable to gunfire from passing cars, Mullenix reasonably feared that the officers manning them faced a significant risk of harm. 765 F.3d, at 548-549.

      [10]Mullenix sought rehearing en banc before the Fifth Circuit, but the court denied his petition. Judge Jolly dissented, joined by six other members of the court. Judge King, who joined Judge Jolly’s dissent, also filed a separate dissent of her own. 777 F.3d 221 (2014) (per curiam). On the same day, however, the two members forming the original panel’s majority withdrew their previous opinion and substituted a new one. 773 F.3d 712. The revised opinion recognized that objective unreasonableness is a question of law that can be resolved on summary judgment—as Judge King had explained in her dissent—but reaffirmed the denial of qualified immunity. Id., at 715, 718. The majority concluded that Mullenix’s actions were objectively unreasonable because several of the factors that had justified deadly force in previous cases were absent here: There were no innocent bystanders, Leija’s driving was relatively controlled, Mullenix had not first given the spike strips a chance to work, and Mullenix’s decision was not a split-second judgment. Id., at 720-724. The court went on to conclude that Mullenix was not entitled to qualified immunity because “the law was clearly established such that a reasonable officer would have known that the use of deadly force, absent a sufficiently substantial and immediate threat, violated the Fourth Amendment.” Id., at 725.

      [11]We address only the qualified immunity question, not whether there was a Fourth Amendment violation in the first place, and now reverse.

      [1]The doctrine of qualified immunity shields officials from civil liability so long as their conduct “‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed.2d 396 (1982)). A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088, 182 L. Ed.2d 985, 989 (2012) (internal quotation marks and alteration omitted). “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L. Ed.2d 1149 (2011). Put simply, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed.2d 271 (1986).

      [2]“We have repeatedly told courts … not to define clearly established law at a high level of generality.” al-Kidd, supra, at 742, 131 S. Ct. 2074, 179 L. Ed.2d 1149. The dispositive question is “whether the violative nature of particular conduct is clearly established.” Ibid. (emphasis added). This inquiry “‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L. Ed.2d 583 (2004) (per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed.2d 272 (2001)). Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that “[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” 533 U.S., at 205, 121 S. Ct. 2151, 150 L. Ed.2d 272.

      [12]In this case, the Fifth Circuit held that Mullenix violated the clearly established rule that a police officer may not “‘use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.’” 773 F. 3d, at 725. Yet this Court has previously considered—and rejected—almost that exact formulation of the qualified immunity question in the Fourth Amendment context. In Brosseau, which also involved the shooting of a suspect fleeing by car, the Ninth Circuit denied qualified immunity on the ground that the officer had violated the clearly established rule, set forth in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed.2d 1 (1985), that “deadly force is only permissible where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Haugen v. Brosseau, 339 F.3d 857, 873 (CA9 2003) (internal quotation marks omitted). This Court summarily reversed, holding that use of Garner’s “general” test for excessive force was “mistaken.” Brosseau, 543 U.S., at 199, 125 S. Ct. 596, 160 L. Ed.2d 583. The correct inquiry, the Court explained, was whether it was clearly established that the Fourth Amendment prohibited the officer’s conduct in the “‘situation [she] confronted’: whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.” Id., at 199-200, 125 S. Ct. 596, 160 L. Ed.2d 583. The Court considered three Court of Appeals cases discussed by the parties, noted that “this area is one in which the result depends very much on the facts of each case,” and concluded that the officer was entitled to qualified immunity because “[n]one of [the cases] squarely governs the case here.” Id. at 201, 125 S. Ct. 596, 160 L. Ed.2d 583 (emphasis added).

      [13]Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed.2d 523 (1987), is also instructive on the required degree of specificity. There, the lower court had denied qualified immunity based on the clearly established “right to be free from warrantless searches of one’s home unless the searching officers have probable cause and there are exigent circumstances.” Id., at 640, 107 S. Ct. 3034, 97 L. Ed.2d 523. This Court faulted that formulation for failing to address the actual question at issue: whether “the circumstances with which Anderson was confronted … constitute[d] probable cause and exigent circumstances.” Id., at 640-641, 107 S. Ct. 3034, 97 L. Ed.2d 523. Without answering that question, the Court explained, the conclusion that Anderson’s search was objectively unreasonable did not “follow immediately” from—and thus was not clearly established by—the principle that warrantless searches not supported by probable cause and exigent circumstances violate the Fourth Amendment. Id., at 641, 107 S. Ct. 3034, 97 L. Ed.2d 523.

      [14]In this case, Mullenix confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road. The relevant inquiry is whether existing precedent placed the conclusion that Mullenix acted unreasonably in these circumstances “beyond debate.” al- Kidd, supra, at 741, 131 S. Ct. 2074, 179 L. Ed.2d 1149. The general principle that deadly force requires a sufficient threat hardly settles this matter. See Pasco v. Knoblauch, 566 F.3d 572, 580 (CA5 2009) (“[I]t would be unreasonable to expect a police officer to make the numerous legal conclusions necessary to apply Garner to a high-speed car chase….”).

      [15]Far from clarifying the issue, excessive force cases involving car chases reveal the hazy legal backdrop against which Mullenix acted. In Brosseau itself, the Court held that an officer did not violate clearly established law when she shot a fleeing suspect out of fear that he endangered “other officers on foot who [she] believed were in the immediate area,” “the occupied vehicles in [his] path,” and “any other citizens who might be in the area.” 543 U.S., at 197, 125 S. Ct. 596, 160 L. Ed.2d 583 (first alteration in original; internal quotation marks omitted; emphasis added). The threat Leija posed was at least as immediate as that presented by a suspect who had just begun to drive off and was headed only in the general direction of officers and bystanders. Id., at 196-197, 125 S. Ct. 596, 160 L. Ed.2d 583. By the time Mullenix fired, Leija had led police on a 25-mile chase at extremely high speeds, was reportedly intoxicated, had twice threatened to shoot officers, and was racing toward an officer’s location.

      [16]This Court has considered excessive force claims in connection with high-speed chases on only two occasions since Brosseau. In Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 167 L. Ed.2d 686, the Court held that an officer did not violate the Fourth Amendment by ramming the car of a fugitive whose reckless driving “posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase.” Id., at 384, 127 S. Ct. 1769, 167 L. Ed.2d 686. And in Plumhoff v. Rickard, 572 U.S. 765, 134 S. Ct. 2012, 188 L. Ed.2d 1056, 1060 (2014), the Court reaffirmed Scott by holding that an officer acted reasonably when he fatally shot a fugitive who was “intent on resuming” a chase that “pose[d] a deadly threat for others on the road.” 572 U.S., at 777, 134 S. Ct. 2012, 188 L. Ed.2d 1056, 1061). The Court has thus never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity. Leija in his flight did not pass as many cars as the drivers in Scott or Plumhoff; traffic was light on I-27. At the same time, the fleeing fugitives in Scott and Plumhoff had not verbally threatened to kill any officers in their path, nor were they about to come upon such officers. In any event, none of our precedents “squarely governs” the facts here. Given Leija’s conduct, we cannot say that only someone “plainly incompetent” or who “knowingly violate[s] the law” would have perceived a sufficient threat and acted as Mullenix did. Malley, 475 U.S., at 341, 106 S. Ct. 1092, 89 L. Ed.2d 271.

      [17]The dissent focuses on the availability of spike strips as an alternative means of terminating the chase. It argues that even if Leija posed a threat sufficient to justify deadly force in some circumstances, Mullenix nevertheless contravened clearly established law because he did not wait to see if the spike strips would work before taking action. Spike strips, however, present dangers of their own, not only to drivers who encounter them at speeds between 85 and 110 miles per hour, but also to officers manning them. See, e.g., Thompson v. Mercer, 762 F.3d 433, 440 (CA5 2014); Brief for National Association of Police Organizations et al. as Amici Curiae 15-16. Nor are spike strips always successful in ending the chase. See, e.g., Cordova v. Aragon, 569 F.3d 1183, 1186 (CA10 2009); Brief for National Association of Police Organizations et al. as Amici Curiae 16 (citing examples). The dissent can cite no case from this Court denying qualified immunity because officers entitled to terminate a high-speed chase selected one dangerous alternative over another.

      [18]Even so, the dissent argues, there was no governmental interest that justified acting before Leija’s car hit the spikes. Mullenix explained, however, that he feared Leija might attempt to shoot at or run over the officers manning the spike strips. Mullenix also feared that even if Leija hit the spike strips, he might still be able to continue driving in the direction of other officers. The dissent ignores these interests by suggesting that there was no “possible marginal gain in shooting at the car over using the spike strips already in place.” Post, 193 L. Ed.2d, at 266 (opinion of Sotomayor, J.). In fact, Mullenix hoped his actions would stop the car in a manner that avoided the risks to other officers and other drivers that relying on spike strips would entail. The dissent disputes the merits of the options available to Mullenix, post, at ___, 193 L. Ed.2d at 266-267, but others with more experience analyze the issues differently. See, e.g., Brief for National Association of Police Organizations et al. as Amici Curiae 15-16. Ultimately, whatever can be said of the wisdom of Mullenix’s choice, this Court’s precedents do not place the conclusion that he acted unreasonably in these circumstances “beyond debate.” al-Kidd, 563 U.S., at 741, 131 S. Ct. 2074, 179 L. Ed.2d 1149.

      [19]More fundamentally, the dissent repeats the Fifth Circuit’s error. It defines the qualified immunity inquiry at a high level of generality—whether any governmental interest justified choosing one tactic over another—and then fails to consider that question in “the specific context of the case.” Brosseau, supra. at 198, 125 S. Ct. 596, 160 L. Ed.2d 583 (internal quotation marks omitted). As in Anderson, the conclusion that Mullenix’s reasons were insufficient to justify his actions simply does not “follow immediately” from the general proposition that force must be justified. 483 U.S., at 641, 107 S. Ct. 3034, 97 L. Ed.2d 523.

      [20]Cases decided by the lower courts since Brosseau likewise have not clearly established that deadly force is inappropriate in response to conduct like Leija’s. The Fifth Circuit here principally relied on its own decision in Lytle v. Bexar County, 560 F.3d 404 (2009), denying qualified immunity to a police officer who had fired at a fleeing car and killed one of its passengers. That holding turned on the court’s assumption, for purposes of summary judgment, that the car was moving away from the officer and had already traveled some distance at the moment the officer fired. See id.,at 409. The court held that a reasonable jury could conclude that a receding car “did not pose a sufficient threat of harm such that the use of deadly force was reasonable.” Id. at 416. But, crucially, the court also recognized that if the facts were as the officer alleged, and he fired as the car was coming towards him, “he would likely be entitled to qualified immunity” based on the “threat of immediate and severe physical harm.” Id. at 412. Without implying that Lytle was either correct or incorrect, it suffices to say that Lytle does not clearly dictate the conclusion that Mullenix was unjustified in perceiving grave danger and responding accordingly, given that Leija was speeding towards a confrontation with officers he had threatened to kill.

      [21]Cases that the Fifth Circuit ignored also suggest that Mullenix’s assessment of the threat Leija posed was reasonable. In Long v. Slaton, 508 F.3d 576 (2007), for example, the Eleventh Circuit held that a sheriff’s deputy did not violate the Fourth Amendment by fatally shooting a mentally unstable individual who was attempting to flee in the deputy’s car, even though at the time of the shooting the individual had not yet operated the cruiser dangerously. The court explained that “the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect” and concluded that the deputy had reason to believe Long was dangerous based on his unstable state of mind, theft of the cruiser, and failure to heed the deputy’s warning to stop. Id., at 581-582. The court also rejected the notion that the deputy should have first tried less lethal methods, such as spike strips. “[C]onsidering the unpredictability of Long’s behavior and his fleeing in a marked police cruiser,” the court held, “we think the police need not have taken that chance and hoped for the best.” Id., at 583 (alteration and internal quotation marks omitted). But see Smith v. Cupp, 430 F.3d 766, 774-777 (CA6 2005) (denying qualified immunity to an officer who shot an intoxicated suspect who had stolen the officer’s cruiser where a reasonable jury could have concluded that the suspect’s flight did not immediately threaten the officer or any other bystander).

      [22]Other cases cited by the Fifth Circuit and respondents are simply too factually distinct to speak clearly to the specific circumstances here. Several involve suspects who may have done little more than flee at relatively low speeds. See, e.g., Walker v. Davis, 649 F.3d 502, 503 (CA6 2011); Kirby v. Duva, 530 F.3d 475, 479-480 (CA6 2008); Adams v. Speers, 473 F.3d 989, 991 (CA9 2007); Vaughan v. Cox, 343 F.3d 1323, 1330-1331, and n.7 (CA11 2003). These cases shed little light on whether the far greater danger of a speeding fugitive threatening to kill police officers waiting in his path could warrant deadly force. The court below noted that “no weapon was ever seen,” 773 F.3d, at 723, but surely in these circumstances the police were justified in taking Leija at his word when he twice told the dispatcher he had a gun and was prepared to use it.

      [23]Finally, respondents argue that the danger Leija represented was less substantial than the threats that courts have found sufficient to justify deadly force. But the mere fact that courts have approved deadly force in more extreme circumstances says little, if anything, about whether such force was reasonable in the circumstances here. The fact is that when Mullenix fired, he reasonably understood Leija to be a fugitive fleeing arrest, at speeds over 100 miles per hour, who was armed and possibly intoxicated, who had threatened to kill any officer he saw if the police did not abandon their pursuit, and who was racing towards Officer Ducheneaux’s position. Even accepting that these circumstances fall somewhere between the two sets of cases respondents discuss, qualified immunity protects actions in the “‘hazy border between excessive and acceptable force.’” Brosseau, 543 U.S. at 201, 125 S. Ct. 596, 160 L. Ed.2d 583 (quoting Saucier, 533 U.S. at 206, 121 S. Ct. 2151, 150 L. Ed.2d 272; some internal quotation marks omitted).

      [24]Because the constitutional rule applied by the Fifth Circuit was not “beyond debate,” Stanton v. Sims, 571 U.S. 3, 11, 134 S. Ct. 3, 187 L. Ed.2d 341, 344(2013) (per curiam), we grant Mullenix’s petition for certiorari and reverse the Fifth Circuit’s determination that Mullenix is not entitled to qualified immunity.

      It is so ordered.

      Justice Scalia, concurring in the judgment.

      [25]I join the judgment of the Court but would not describe what occurred here as the application of deadly force in effecting an arrest. Our prior cases have reserved that description to the directing of force sufficient to kill at the person of the desired arrestee. See, e.g., Plumhoff v. Rickard, 572 U.S. 765, 134 S. Ct. 2012, 188 L. Ed.2d 1056, 1061 (2014); Brosseau v. Haugen, 543 U.S. 194, 125 S. Ct. 596, 160 L. Ed.2d 583 (2004) (per curiam); Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed.2d 1 (1985). It does not assist analysis to refer to all use of force that happens to kill the arrestee as the application of deadly force. The police might, for example, attempt to stop a fleeing felon’s car by felling a large tree across the road; if they drop the tree too late, so that it crushes the car and its occupant, I would not call that the application of deadly force. Though it was force sufficient to kill, it was not applied with the object of harming the body of the felon.

      [26]Thus, in Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 167 L. Ed.2d 686 (2007), we declined to characterize officer Scott’s use of his pursuing vehicle’s bumper to push the fleeing vehicle off the road as the application of deadly force. Whether or not it was that, we said, “all that matters is whether Scott’s actions were reasonable.” Id. at 383, 127 S. Ct. 1769, 167 L. Ed.2d 686. So also here. But it stacks the deck against the officer, it seems to me, to describe his action as the application of deadly force.

      [27]It was at least arguable in Scott that pushing a speeding vehicle off the road is targeting its occupant for injury or death. Here, however, it is conceded that Trooper Mullenix did not shoot to wound or kill the fleeing Leija, nor even to drive Leija’s car off the road, but only to cause the car to stop by destroying its engine. That was a risky enterprise, as the outcome demonstrated; but determining whether it violated the Fourth Amendment requires us to ask, not whether it was reasonable to kill Leija, but whether it was reasonable to shoot at the engine in light of the risk to Leija. It distorts that inquiry, I think, to make the question whether it was reasonable for Mullenix to “apply deadly force.”

      Justice Sotomayor, dissenting.

      [28]Chadrin Mullenix fired six rounds in the dark at a car traveling 85 miles per hour. He did so without any training in that tactic, against the wait order of his superior officer, and less than a second before the car hit spike strips deployed to stop it. Mullenix’s rogue conduct killed the driver, Israel Leija, Jr. Because it was clearly established under the Fourth Amendment that an officer in Mullenix’s position should not have fired the shots, I respectfully dissent from the grant of summary reversal.

      I

      [29]Resolving all factual disputes in favor of plaintiffs, as the Court must on a motion for summary judgment, Mullenix knew the following facts before he shot at Leija’s engine block: Leija had led police officers on an 18-minute car chase, at speeds ranging from 85 to 110 miles per hour. 773 F.3d 712, 716 (CA5 2014). Leija had twice called the police dispatcher threatening to shoot at officers if they did not cease the pursuit. Ibid. Police officers were deploying three sets of spike strips in order to stop Leija’s flight. Ibid. The officers were trained to stop a car using spike strips. This training included how to take a defensive position to minimize the risk of danger from the target car. Ibid. Mullenix knew that spike strips were being set up directly beneath the overpass where he was stationed. Id., at 723. There is no evidence below that any of the officers with whom Mullenix was in communication—including Officer Troy Ducheneaux, whom Mullenix believed to be below the overpass—had expressed any concern for their safety. Id. at 720.

      [30]Mullenix had no training in shooting to disable a moving vehicle and had never seen the tactic done before. Id., at 716. He also lacked permission to take the shots: When Mullenix relayed his plan to his superior officer, Robert Byrd, Byrd responded “stand by” and “see if the spikes work first.” Id. at 716-717. Three minutes after arriving at the overpass, Mullenix fired six rounds at Leija’s car. None hit the car’s engine block; at least four struck Leija in the upper body, killing Leija. Id. at 717.

      II

      [31]When confronting a claim of qualified immunity, a court asks two questions. First, the court considers whether the officer in fact violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed.2d 272 (2001). Second, the court asks whether the contours of the right were “sufficiently clear that a reasonable official would [have understood] that what he is doing violates that right.” Id., at 202, 121 S. Ct. 2151, 150 L. Ed.2d 272 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed.2d 523 (1987)). This Court has rejected the idea that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Id., at 640, 107 S. Ct. 3034, 97 L. Ed.2d 523. Instead, the crux of the qualified immunity test is whether officers have “fair notice” that they are acting unconstitutionally. Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed.2d 666 (2002).

      [32]Respondents here allege that Mullenix violated the Fourth Amendment’s prohibition on unreasonable seizures by using deadly force to apprehend Leija. This Court’s precedents clearly establish that the Fourth Amendment is violated unless the “‘governmental interests’” in effectuating a particular kind of seizure outweigh the “‘nature and quality of the intrusion on the individual’s Fourth Amendment interests.’” Scott v. Harris, 550 U.S. 372, 383, 127 S. Ct. 1769, 167 L. Ed.2d 686 (2007) (quoting United States v. Place, 462 U.S. 696, 703, 103 S. Ct. 2637, 77 L. Ed.2d 110 (1983)). There must be a “governmental interes[t]” not only in effectuating a seizure, but also in “how [the seizure] is carried out.” Tennessee v. Garner, 471 U.S. 1, 8, 105 S. Ct. 1694, 85 L. Ed.2d 1 (1985).

      [33]Balancing a particular governmental interest in the use of deadly force against the intrusion occasioned by the use of that force is inherently a fact-specific inquiry, not susceptible to bright lines. But it is clearly established that the government must have some interest in using deadly force over other kinds of force.

      [34]Here, then, the clearly established legal question—the question a reasonable officer would have asked—is whether, under all the circumstances as known to Mullenix, there was a governmental interest in shooting at the car rather than waiting for it to run over spike strips.

      [35]The Court does not point to any such interest here. It claims that Mullenix’s goal was not merely to stop the car, but to stop the car “in a manner that avoided the risks” of relying on spike strips. Ante, at __, 193 L. Ed.2d, at 262. But there is no evidence in the record that shooting at Leija’s engine block would stop the car in such a manner.

      [36]The majority first suggests that Mullenix did not wait for the results of the spikes, as his superior advised, because of his concern for the officers manning the strips. But Leija was going to come upon those officers whether or not Mullenix’s shooting tactic was successful: Mullenix took his shot when Leija was between 25 and 30 yards away from the spike strip, traveling at 85 miles per hour. Even if his shots hit Leija’s engine block, the car would not have stopped instantly. Mullenix would have bought the officers he was trying to protect—officers who had been trained to take defensive positions—less than three-quarters of a second over waiting for the spike strips. And whatever threat Leija posed after his car was stopped existed whether the car was stopped by a shot to the engine block or by the spike strips.

      [37]Nor was there any evidence that shooting at the car was more reliable than the spike strips. The majority notes that spike strips are fallible. Ante, at ___-___, 193 L. Ed.2d, at 261-262. But Mullenix had no information to suggest that shooting to disable a car had a higher success rate, much less that doing so with no training and at night was more likely to succeed. Moreover, not only did officers have training in setting up the spike strips, but they had also placed two backup strips farther north along the highway in case the first set failed. A reasonable officer could not have thought that shooting would stop the car with less danger or greater certainty than waiting.

      [38]The majority cites Long v. Slaton, 508 F.3d 576 (CA11 2007), for the proposition that Mullenix need not have “first tried less lethal methods, such as spike strips.” Ante, at ___, 193 L. Ed.2d, at 262. But in that case, there was a clear reason to prefer deadly force over the alternatives. In Long, an officer fired to stop a suspect from fleeing in a stolen police cruiser. 508 F.3d, at 583. When the officer fired, there were no alternative means of stopping the car in place. The Eleventh Circuit held that the governmental interest against waiting for a future deployment of spike strips that may never materialize justified the use of deadly force. Ibid.

      [39]In this case, by contrast, neither petitioner nor the majority can point to any possible marginal gain in shooting at the car over using the spike strips already in place. It is clearly established that there must be some governmental interest that necessitates deadly force, even if it is not always clearly established what level of governmental interest is sufficient.

      [40]Under the circumstances known to him at the time, Mullenix puts forth no plausible reason to choose shooting at Leija’s engine block over waiting for the results of the spike strips. I would thus hold that Mullenix violated Leija’s clearly established right to be free of intrusion absent some governmental interest.

      III

      [41]The majority largely evades this key legal question by focusing primarily on the governmental interest in whether the car should be stopped rather than the dispositive question of how the car should be stopped. But even assuming that Leija posed a “sufficient,” ante, at 193 L. Ed.2d, at 261, or “immediate,” ante, at ___, 193 L. Ed.2d, at 261, threat, Mullenix did not face a “choice between two evils” of shooting at a suspect’s car or letting him go. Scott, 550 U.S. at 384, 127 S. Ct. 1769, 167 L. Ed.2d 686; see, e.g., Plumhoff v. Rickard, 572 U.S. 765, 769, 134 S. Ct. 2012, 188 L. Ed.2d 1056, 1061 (2014); Brosseau v. Haugen, 543 U.S. 194, 196-197, 125 S. Ct. 596, 160 L. Ed.2d 583 (2004). Instead, Mullenix chose to employ a potentially lethal tactic (shooting at Leija’s engine block) in addition to a tactic specifically designed to accomplish the same result (spike strips). By granting Mullenix qualified immunity, this Court goes a step further than our previous cases and does so without full briefing or argument.

      [42]Thus framed, it is apparent that the majority’s exhortation that the right at stake not be defined at “a high level of generality,” see ante, at ­___, 193 L. Ed.2d at 262, is a red herring. The majority adduces various facts that the Fifth Circuit supposedly ignored in its qualified immunity analysis, including that Leija was “a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road.” Ante, at ___, 193 L. Ed.2d, at 260. But not one of those facts goes to the governmental interest in shooting over ^{awaiting the spike strips. The majority also claims that established law does not make clear that “Mullenix’s reasons were insufficient to justify” his choice of shooting over following his superior’s orders to wait for the spikes. Ante, at ___-___ 193 L. Ed.2d, at 262. But Mullenix seemed to have no reasons to prefer shooting to following orders.}

      [43]Instead of dealing with the question whether Mullenix could constitutionally fire on Leija’s car rather than waiting for the spike strips, the majority dwells on the imminence of the threat posed by Leija. The majority recharacterizes Mullenix’s decision to shoot at Leija’s engine block as a split-second, heat-of-the-moment choice, made when the suspect was “moments away.” Ante, at ___, 193 L. Ed.2d at 260. Indeed, reading the majority opinion, one would scarcely believe that Mullenix arrived at the overpass several minutes before he took his shot, or that the rural road where the car chase occurred had few cars and no bystanders or businesses. 773 F.3d at 717, 720. The majority also glosses over the facts that Mullenix had time to ask Byrd for permission to fire upon Leija and that Byrd—Mullenix’s superior officer—told Mullenix to “stand by.” Id. at 717. There was no reason to believe that Byrd did not have all the same information Mullenix did, including the knowledge that an officer was stationed beneath the overpass. Even after receiving Byrd’s response, Mullenix spent minutes in shooting position discussing his next step with a fellow officer, minutes during which he received no information that would have made his plan more suitable or his superior’s orders less so. Ibid.

      [44]An appropriate reading of the record on summary judgment would thus render Mullenix’s choice even more unreasonable. And asking the appropriate legal question would leave the majority with no choice but to conclude that Mullenix ignored the longstanding and well-settled Fourth Amendment rule that there must be a governmental interest not just in seizing a suspect, but in the level of force used to effectuate that seizure.

      * * * * *

      [45]When Mullenix confronted his superior officer after the shooting, his first words were, “How’s that for proactive?” Ibid. (Mullenix was apparently referencing an earlier counseling session in which Byrd suggested that he was not enterprising enough. Ibid.) The glib comment does not impact our legal analysis; an officer’s actual intentions are irrelevant to the Fourth Amendment’s “objectively reasonable” inquiry. See Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed.2d 443 (1989). But the comment seems to me revealing of the culture this Court’s decision supports when it calls it reasonable—or even reasonably reasonable—to use deadly force for no discernible gain and over a supervisor’s express order to “stand by.” By sanctioning a “shoot first, think later” approach to policing, the Court renders the protections of the Fourth Amendment hollow.

      [46]For the reasons discussed, I would deny Mullenix’s petition for a writ of certiorari. I thus respectfully dissent.

      
      Per Curiam

      Footnotes

      15. Although Mullenix disputes hearing Byrd’s response, we view the facts in the light most favorable to respondents, who oppose Mullenix’s motion for summary judgment. See Tolan v. Cotton, 572 U.S. 650, 651, 134 S. Ct. 1861, 188 L. Ed.2d 895, 897 (2014). (per curiam). ↵

      Notes on Mullenix v. Luna

      1. Mullenix v. Luna is a United States Supreme Court instructional manual on how to determine whether the right allegedly violated in a Section 1983 action is “clearly established.”
         1. 1. What standard(s) must precedent cases meet for the right allegedly violated to be clearly established?
            2. How did the Court construe its opinion in Brosseau v. Haugen to support its conclusion that it was not clearly established that Mullenix’s use of force was constitutionally unreasonable?
            3. How did the Court construe its opinions in Scott v. Harris and Plumoff v. Rickard to support its conclusion that it was not clearly established that Mullenix’s use of force was constitutionally unreasonable?
            4. Why did the Court find that the Fifth Circuit erred in relying on its prior decision in Lytle v. Bexar County in denying qualified immunity to Mullenix?
            5. What additional cases does the Supreme Court find the court of appeals should have considered in determining whether Mullenix’s shooting of Leija violated clearly established constitutional rights?  What bearing does the Court believe these cases have on the “clearly established rights” issue?
            6. Why did the Court reason that other cases cited by the Fifth Circuit did not support its denial of qualified immunity to Mullenix?
            7. How did the Court dispose of plaintiff’s argument that the threat to safety that Leija posed was less substantial than the danger in the cases where the Court has approved use of deadly force?
         2. Did the Court consider the fact that while the officers who laid the spike strips had received training in their use, including how to minimize the risk to officer safety, Mullenix never received training on shooting to stop a fleeing motorist and had never attempted to do so? Did the Court consider other evidence on the utility of spike strips?
         3. What consideration did the court give to the fact that Mullenix ignored the instruction of his superior officer to “stand by” and “see if the spikes work first.”?
         4. How did the Court address the argument that even if Mullenix had succeeded in stopping Leija’s car by shooting out its engine, the threat Leija posed to officers after his car stopped would be no different than if the spike strips stopped his car?
         5. As Justice Sotomayor’s dissent revealed, Sergeant Byrd—Mullenix’s supervisor—had previously counselled Mullenix that he was not enterprising enough. Mullenix’s first words to Byrd after the shooting was “How’s that for proactive?”
         6. How did the majority address the inference that Mullenix’s decision to shoot at Leija’s car—without having been trained to do and against Byrd’s instruction to stand by—was not motivated by his belief as to the state of constitutional law but by an effort to refute earlier criticism by his superior officer?

SUPREME COURT OF THE UNITED STATES

TRENT MICHAEL TAYLOR v. ROBERT RIOJAS, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19–1261. Decided November 2, 2020

PER CURIAM.

[1]Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells.[^[16] The first cell was covered, nearly floor to ceiling, in “‘massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “‘packed inside the water faucet.’” Taylor v. Stevens, 946 F.3d 211, 218 (CA5 2019). Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

[2]The Court of Appeals for the Fifth Circuit properly held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment. But, based on its assessment that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste” “for only six days,” the court concluded that the prison officials responsible for Taylor’s confinement did not have “‘fair warning’ that their specific acts were unconstitutional.” 946 F.3d, at 222 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

[3]The Fifth Circuit erred in granting the officers qualified immunity on this basis. “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam). But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time. See Hope, 536 U.S. at 741 (explaining that “‘a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question’” (quoting United States v. Lanier, 520 U.S. 259, 271 (1997))); 536 U.S., at 745 (holding that “[t]he obvious cruelty inherent” in putting inmates in certain wantonly “degrading and dangerous” situations provides officers “with some notice that their alleged conduct violate[s]” the Eighth Amendment). The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration. And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells. See, e.g., 946 F.3d, at 218 (one officer, upon placing Taylor in the first feces-covered cell, remarked to another that Taylor was “‘going to have a long weekend’”); ibid., and n.9 (another officer, upon placing Taylor in the second cell, told Taylor he hoped Taylor would “‘f***ing freeze’”).

[4]Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.^[17] We therefore grant Taylor’s petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand the case for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE BARRETT took no part in the consideration or decision of this case.

JUSTICE THOMAS dissents.

JUSTICE ALITO, concurring in the judgment.

[5]Because the Court has granted the petition for a writ of certiorari, I will address the question that the Court has chosen to decide. But I find it hard to understand why the Court has seen fit to grant review and address that question.

I

[6]To see why this petition is ill-suited for review, it is important to review the procedural posture of this case. Petitioner, an inmate in a Texas prison, sued multiple prison officers and asserted a variety of claims, including both the Eighth Amendment claim that the Court addresses (placing and keeping him in filthy cells) and a related Eighth Amendment claim (refusing to take him to a toilet). The District Court granted summary judgment for the defendants on all but one of petitioner’s claims under Federal Rule of Civil Procedure 54(b), which permitted petitioner to appeal the dismissed claims. On appeal, the Fifth Circuit affirmed as to all the claims at issue except the toilet-access claim. On the claim concerning the conditions of petitioner’s cells, the court held that the facts alleged in petitioner’s verified complaint were sufficient to demonstrate an Eighth Amendment violation, but it found that the officers were entitled to qualified immunity based primarily on a statement in Hutto v. Finney, 437 U.S. 678 (1978), and the Fifth Circuit’s decision in Davis v. Scott, 157 F.3d 1003 (1998).

[7]The Court now reverses the affirmance of summary judgment on the cell-conditions claim. Viewing the evidence in the summary judgment record in the light most favorable to petitioner, the Court holds that a reasonable corrections officer would have known that it was unconstitutional to confine petitioner under the conditions alleged. That question, which turns entirely on an interpretation of the record in one particular case, is a quintessential example of the kind that we almost never review. As stated in our Rules, “[a] petition for a writ of certiorari is rarely granted when the asserted error consists of … the misapplication of a properly stated rule of law,” this Court’s Rule 10. That is precisely the situation here. The Court does not dispute that the Fifth Circuit applied all the correct legal standards, but the Court simply disagrees with the Fifth Circuit’s application of those tests to the facts in a particular record. Every year, the courts of appeals decide hundreds if not thousands of cases in which it is debatable whether the evidence in a summary judgment record is just enough or not quite enough to carry the case to trial. If we began to review these decisions we would be swamped, and as a rule we do not do so.

[8]Instead, we have well-known criteria for granting review, and they are not met here. The question that the Court decides is not one that has divided the lower courts, see this Court’s Rule 10, and today’s decision adds virtually nothing to the law going forward. The Court of Appeals held that the conditions alleged by petitioner, if proved, would violate the Eighth Amendment, and this put correctional officers in the Fifth Circuit on notice that such conditions are intolerable. Thus, even without our intervention, qualified immunity would not be available in any similar future case.

[9]We have sometimes granted review and summarily reversed in cases where it appeared that the lower court had conspicuously disregarded governing Supreme Court precedent, but that is not the situation here. On the contrary, as I explain below, it appears that the Court of Appeals erred largely because it read too much into one of our decisions.

[10]It is not even clear that today’s decision is necessary to protect petitioner’s interests. We are generally hesitant to grant review of non-final decisions, and there are grounds for such wariness here. If we had denied review at this time, petitioner may not have lost the opportunity to contest the grant of summary judgment on the issue of respondents’ entitlement to qualified immunity on his cell-conditions claim. His case would have been remanded for trial on the claims that remained after the Fifth Circuit’s decision (one of which sought relief that appears to overlap with the relief sought on the cell-conditions claim), and if he was dissatisfied with the final judgment, he may have been able to seek review by this Court of the cell-conditions qualified immunity issue at that time. Major League Baseball Players Assn. v. Garvey, 532 U.S. 504, 508, n.1 (2001) (per curiam). And of course, there is always the possibility that he would have been satisfied with whatever relief he obtained on the claims that went to trial.

[11]Today’s decision does not even conclusively resolve the issue of qualified immunity on the cell-conditions claim because respondents are free to renew that defense at trial, and if the facts petitioner alleges are not ultimately established, the defense could succeed. Indeed, if petitioner cannot prove the facts he alleges, he may not be able to show that his constitutional rights were violated.

[12]In light of all this, it is not apparent why the Court has chosen to grant review in this case.

II

[13]While I would not grant review on the question the Court addresses, I agree that summary judgment should not have been awarded on the issue of qualified immunity. We must view the summary judgment record in the light most favorable to petitioner, and when petitioner’s verified complaint is read in this way, a reasonable fact-finder could infer not just that the conditions in the cells in question were horrific but that respondents chose to place and keep him in those particular cells, made no effort to have the cells cleaned, and did not explore the possibility of assignment to cells with better conditions. A reasonable corrections officer would have known that this course of conduct was unconstitutional, and the cases on which respondents rely do not show otherwise.

[14]Although this Court stated in Hutto that holding a prisoner in a “filthy” cell for “a few days” “might be tolerable,” 437 U.S. at 686-687, that equivocal and unspecific dictum does not justify what petitioner alleges. There are degrees of filth, ranging from conditions that are simply unpleasant to conditions that pose a grave health risk, and the concept of “a few days” is also imprecise. In addition, the statement does not address potentially important factors, such as the necessity of placing and keeping a prisoner in a particular cell and the possibility of cleaning the cell before he is housed there or during the course of that placement. A reasonable officer could not think that this statement or the Court of Appeals’ decision in Davis meant that it is constitutional to place a prisoner in the filthiest cells imaginable for up to six days despite the availability of other preferable cells or despite the ability to arrange for cleaning of the cells in question.

[15]For these reasons, I concur in the judgment.

Footnotes

16. The Fifth Circuit accepted Taylor’s “verified pleadings [as] competent evidence at summary judgment.” Taylor v. Stevens, 946 F.3d 211, 221 (2019). As is appropriate at the summary-judgment stage, facts that are subject to genuine dispute are viewed in the light most favorable to Taylor’s claim. ↵

     

17. In holding otherwise, the Fifth Circuit noted “ambiguity in the caselaw” regarding whether “a time period so short [as six days] violated the Constitution.” 946 F.3d, at 222. But the case that troubled the Fifth Circuit is too dissimilar, in terms of both conditions and duration of confinement, to create any doubt about the obviousness of Taylor’s right. See Davis v. Scott, 157 F.3d 1003, 1004 (CA5 1998) (no Eighth Amendment violation where inmate was detained for three days in dirty cell and provided cleaning supplies). ↵

     

18. See Harlow v. Fitzgerald, 457 U.S. 800, 818 and n.30 (1982) (noting that the Court’s decisions equate the qualified immunity of state officials sued under 42 U.S.C. § 1983 with the immunity of federal officers sued directly under the Constitution.) ↵

     

19. In Bunting, the Court of Appeals followed the Saucier two-step protocol and first held that the Virginia Military Institute’s use of the word “God” in a “supper role call” ceremony violated the Establishment Clause, but granted the defendants qualified immunity because the law was not clearly established at the relevant time. Mellen v. Bunting, 327 F.3d 355, 365-367 (CA4 2003), cert. denied, 541 U.S. 1019 (2004). Although they had a judgement in their favor below, the defendants asked this Court to review the adverse constitutional ruling. Dissenting from the denial of certiorari, JUSTICE SCALIA, joined by Chief Justice Rehnquist, criticized “a perceived procedural tangle of the Court’s own making.” 521 U.S. 1022. The “tangle” arose from the Court’s “settled refusal” to entertain an appeal by a party on an issue as to which he prevailed” below, a practice that insulates from review adverse merits decisions that are “locked inside” favorable qualified immunity rulings. Id., at 1022, 1023, 1024. ↵

Notes on Taylor v. Riojas

1. What general standard(s) did the Court apply to determine whether the right violated was clearly established?
2. How are the lower courts to determine when the facts of the case so egregious that the right violated is clearly established by the general constitutional rule recognized by the precedents? Why didn’t Mullenix’s shooting his rifle in the dark at a car traveling 85 miles per hour from an overpass 20 feet above the road; without training on and experience with the tactic; against his superior officer’s instruction to stand by  and see whether the spike strips worked;  less than one second before the car was going to travel over the spike strips; and firing six shots, none of which hit the car but four of which struck and killed Leija, satisfy the standard set forth in Riojas?
3. Justice Alito’s concurring opinion criticized the Court for reviewing the lower court’s disposition of a qualified immunity motion where the “asserted error consists of . . . the misapplication of a properly stated rule of law.” Was it appropriate for the Mullenix Court to review and overturn the Fifth Circuit’s denial of qualified immunity?

PEARSON v. CALLAHAN, 555 U.S. 223 (2009)

Justice Alito delivered the opinion of the Court.

[1]This is an action brought by respondent under Rev. Stat. § 1979, 42 U.S.C. § 1983, against state law enforcement officers who conducted a warrantless search of his house incident to his arrest for the sale of methamphetamine to an undercover informant whom he had voluntarily admitted to the premises. The Court of Appeals held that petitioners were not entitled to summary judgment on qualified immunity grounds. Following the procedure we mandated in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L. Ed.2d 272 (2001), the Court of Appeals held, first, that respondent adduced facts sufficient to make out a violation of the Fourth Amendment and, second, that the unconstitutionality of the officers’ conduct was clearly established. In granting review, we required the parties to address the additional question whether the mandatory procedure set out in Saucier should be retained.

[2]We now hold that the Saucier procedure should not be regarded as an inflexible requirement and that petitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional. We therefore reverse.

I

A

[3]The Central Utah Narcotics Task Force is charged with investigating illegal drug use and sales. In 2002, Brian Bartholomew, who became an informant for the task force after having been charged with the unlawful possession of methamphetamine, informed Officer Jeffrey Whatcott that respondent Afton Callahan had arranged to sell Bartholomew methamphetamine later that day.

[4]That evening, Bartholomew arrived at respondent’s residence at about 8 p.m. Once there, Bartholomew went inside and confirmed that respondent had methamphetamine available for sale. Bartholomew then told respondent that he needed to obtain money to make his purchase and left.

[5]Bartholomew met with members of the task force at about 9 p.m. and told them that he would be able to buy a gram of methamphetamine for $100. After concluding that Bartholomew was capable of completing the planned purchase, the officers searched him, determined that he had no controlled substances on his person, gave him a marked $100 bill and a concealed electronic transmitter to monitor his conversations, and agreed on a signal that he would give after completing the purchase.

[6]The officers drove Bartholomew to respondent’s trailer home, and respondent’s daughter let him inside. Respondent then retrieved a large bag containing methamphetamine from his freezer and sold Bartholomew a gram of methamphetamine, which he put into a small plastic bag. Bartholomew gave the arrest signal to the officers who were monitoring the conversation, and they entered the trailer through a porch door. In the enclosed porch, the officers encountered Bartholomew, respondent, and two other persons, and they saw respondent drop a plastic bag, which they later determined contained methamphetamine. The officers then conducted a protective sweep of the premises. In addition to the large bag of methamphetamine, the officers recovered the marked bill from respondent and a small bag containing methamphetamine from Bartholomew, and they found drug syringes in the residence. As a result, respondent was charged with the unlawful possession and distribution of methamphetamine.

B

[7]The trial court held that the warrantless arrest and search were supported by exigent circumstances. On respondent’s appeal from his conviction, the Utah attorney general conceded the absence of exigent circumstances but urged that the inevitable discovery doctrine justified introduction of the fruits of the warrantless search. The Utah Court of Appeals disagreed and vacated respondent’s conviction. See State v. Callahan, 2004 UT App. 164, 93 P.3d 103. Respondent then brought this damages action under 42 U.S.C. § 1983 in the United States District Court for the District of Utah, alleging that the officers had violated the Fourth Amendment by entering his home without a warrant. See Callahan v. Millard Cty., No. 2:04-CV-00952, 2006 WL 1409130 (2006).

[8]In granting the officers’ motion for summary judgment, the District Court noted that other courts had adopted the “consent-once-removed” doctrine, which permits a warrantless entry by police officers into a home when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view. Believing that this doctrine was in tension with our intervening decision in Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed.2d 208 (2006), the District Court concluded that “the simplest approach is to assume that the Supreme Court will ultimately reject the [consent-once-removed] doctrine and find that searches such as the one in this case are not reasonable under the Fourth Amendment. The court then held that the officers were entitled to qualified immunity because they could reasonably have believed that the consent-once-removed doctrine authorized their conduct.

[9]On appeal, a divided panel of the Tenth Circuit held that petitioners’ conduct violated respondent’s Fourth Amendment rights. Callahan v. Millard Cty., 494 F.3d 891, 895-899 (2007). The panel majority stated that “[t]he ‘consent-once-removed’ doctrine applies when an undercover officer enters a house at the express invitation of someone with authority to consent, establishes probable cause to arrest or search, and then immediately summons other officers for assistance.” Id. at 896. The majority took no issue with application of the doctrine when the initial consent was granted to an undercover law enforcement officer, but the majority disagreed with decisions that “broade[n] this doctrine to grant informants the same capabilities as undercover officers.” Ibid.

[10]The Tenth Circuit panel further held that the Fourth Amendment right that it recognized was clearly established at the time of respondent’s arrest. Id. at 898–899. “In this case,” the majority stated, “the relevant right is the right to be free in one’s home from unreasonable searches and arrests.” Id., at 898. The Court determined that, under the clearly established precedents of this Court and the Tenth Circuit, “warrantless entries into a home are per se unreasonable unless they satisfy the established exceptions.” Id. at 898–899. In the panel’s words, “the Supreme Court and the Tenth Circuit have clearly established that to allow police entry into a home, the only two exceptions to the warrant requirement are consent and exigent circumstances.” Id. at 899. Against that backdrop, the panel concluded, petitioners could not reasonably have believed that their conduct was lawful because petitioners “knew (1) they had no warrant; (2) [respondent] had not consented to their entry; and (3) [respondent’s] consent to the entry of an informant could not reasonably be interpreted to extend to them.” Ibid.

[11]In dissent, Judge Kelly argued that “no constitutional violation occurred in this case” because, by inviting Bartholomew into his house and participating in a narcotics transaction there, respondent had compromised the privacy of the residence and had assumed the risk that Bartholomew would reveal their dealings to the police. Id. at 903. Judge Kelly further concluded that, even if petitioners’ conduct had been unlawful, they were nevertheless entitled to qualified immunity because the constitutional right at issue—“the right to be free from the warrantless entry of police officers into one’s home to effectuate an arrest after one has granted voluntary, consensual entry to a confidential informant and undertaken criminal activity giving rise to probable cause”—was not “clearly established” at the time of the events in question. Id. at 903–904.

[12]As noted, the Court of Appeals followed the Saucier procedure. The Saucier procedure has been criticized by Members of this Court and by lower court judges, who have been required to apply the procedure in a great variety of cases and thus have much firsthand experience bearing on its advantages and disadvantages. Accordingly, in granting certiorari, we directed the parties to address the question whether Saucier should be overruled. 552 U.S. 1279, (2008).

II

A

* * * * *

[13]In Saucier, 533 U.S. 194, 121 S. Ct. 2151, this Court mandated a two-step sequence for resolving government officials’ qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right. 533 U.S., at 201, 121 S. Ct. 2151. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was “clearly established” at the time of defendant’s alleged misconduct. Ibid. Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right. Anderson, supra, at 640, 107 S. Ct. 3034.

[14]Our decisions prior to Saucier had held that “the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.” County of Sacramento v. Lewis, 523 U.S. 833, 841, n.5, 118 S. Ct. 1708, 140 L. Ed.2d 1043 (1998). Saucier made that suggestion a mandate. For the first time, we held that whether “the facts alleged show the officer’s conduct violated a constitutional right … must be the initial inquiry” in every qualified immunity case. 533 U.S. at 201, 121 S. Ct. 2151 (emphasis added). Only after completing this first step, we said, may a court turn to “the next, sequential step,” namely, “whether the right was clearly established.” Ibid.

[15]This two-step procedure, the Saucier Court reasoned, is necessary to support the Constitution’s “elaboration from case to case” and to prevent constitutional stagnation. Ibid. “The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.” Ibid.

* * * * *

III

[16]On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.

A

[17]Although we now hold that the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial. For one thing, there are cases in which there would be little if any conservation of judicial resources to be had by beginning and ending with a discussion of the “clearly established” prong. “[I]t often may be difficult to decide whether a right is clearly established without deciding precisely what the existing constitutional right happens to be.” Lyons v. Xenia, 417 F.3d 565, 581 (C.A.6 2005) (Sutton, J., concurring). In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. In addition, the Saucier Court was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.

B

[18]At the same time, however, the rigid Saucier procedure comes with a price. The procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case. There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right. District courts and courts of appeals with heavy caseloads are often understandably unenthusiastic about what may seem to be an essentially academic exercise.

[19]Unnecessary litigation of constitutional issues also wastes the parties’ resources. Qualified immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell, 472 U.S. at 526, 105 S. Ct. 2806 (emphasis deleted). Saucier‘s two-step protocol “disserve[s] the purpose of qualified immunity” when it “forces the parties to endure additional burdens of suit—such as the costs of litigating constitutional questions and delays attributable to resolving them—when the suit otherwise could be disposed of more readily.” Brief for Nat. Assn. of Criminal Defense Lawyers as Amicus Curiae 30.

[20]Although the first prong of the Saucier procedure is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development. For one thing, there are cases in which the constitutional question is so factbound that the decision provides little guidance for future cases. See Scott v. Harris, 550 U.S. 372, 388, 127 S. Ct. 1769, 167 L. Ed.2d 686 (2007) (BREYER, J., concurring) (counseling against the Saucier two-step protocol where the question is “so fact dependent that the result will be confusion rather than clarity”); Buchanan v. Maine, 469 F.3d 158, 168 (C.A.1 2006) (“We do not think the law elaboration purpose will be well served here, where the Fourth Amendment inquiry involves a reasonableness question which is highly idiosyncratic and heavily dependent on the facts”).

[21]A decision on the underlying constitutional question in a § 1983 damages action or a Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, (1971),^[18] action may have scant value when it appears that the question will soon be decided by a higher court. When presented with a constitutional question on which this Court had just granted certiorari, the Ninth Circuit elected to “bypass Saucier’s first step and decide only whether [the alleged right] was clearly established.” Motley v. Parks, 432 F.3d 1072, 1078, and n.5 (2005) (en banc). Similar considerations may come into play when a court of appeals panel confronts a constitutional question that is pending before the court en banc or when a district court encounters a constitutional question that is before the court of appeals.

[22]A constitutional decision resting on an uncertain interpretation of state law is also of doubtful precedential importance. As a result, several courts have identified an “exception” to the Saucier rule for cases in which resolution of the constitutional question requires clarification of an ambiguous state statute. Egolf v. Witmer, 526 F.3d 104, 109–111 (C.A.3 2008); accord, Tremblay v. McClellan, 350 F.3d 195, 200 (C.A.1 2003); Ehrlich v. Glastonbury, 348 F.3d 48, 57-60 (C.A.2 2003). Justifying the decision to grant qualified immunity to the defendant without first resolving, under Saucier‘s first prong, whether the defendant’s conduct violated the Constitution, these courts have observed that Saucier‘s “underlying principle” of encouraging federal courts to decide unclear legal questions in order to clarify the law for the future “is not meaningfully advanced … when the definition of constitutional rights depends on a federal court’s uncertain assumptions about state law.” Egolf, supra, at 110; accord, Tremblay, supra, at 200; Ehrlich, supra, at 58.

[23]When qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff’s claim or claims may be hard to identify. Accordingly, several courts have recognized that the two-step inquiry “is an uncomfortable exercise where the answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet fully developed” and have suggested that “[i]t may be that Saucier was not strictly intended to cover” this situation. Dirrane v. Brookline Police Dept., 315 F.3d 65, 69-70 (C.A.1 2002)….

[24]There are circumstances in which the first step of the Saucier procedure may create a risk of bad decisionmaking. The lower courts sometimes encounter cases in which the briefing of constitutional questions is woefully inadequate….

[25]Although the Saucier rule prescribes the sequence in which the issues must be discussed by a court in its opinion, the rule does not—and obviously cannot—specify the sequence in which judges reach their conclusions in their own internal thought processes. Thus, there will be cases in which a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all. In such situations, there is a risk that a court may not devote as much care as it would in other circumstances to the decision of the constitutional issue….

[26]Rigid adherence to the Saucier rule may make it hard for affected parties to obtain appellate review of constitutional decisions that may have a serious prospective effect on their operations. Where a court holds that a defendant committed a constitutional violation but that the violation was not clearly established, the defendant may face a difficult situation. As the winning party, the defendant’s right to appeal the adverse holding on the constitutional question may be contested. See Bunting, 541 U.S. at 1025, 124 S. Ct. 1750 (SCALIA, J., dissenting from denial of certiorari) (“The perception of unreviewability undermines adherence to the sequencing rule we … created” in Saucier);^[19] see also Kalka v. Hawk, 215 F.3d 90, 96, n.9 (C.A.D.C. 2000) (noting that “[n]ormally, a party may not appeal from a favorable judgment” and that the Supreme Court “has apparently never granted the certiorari petition of a party who prevailed in the appellate court”). In cases like Bunting, the “prevailing” defendant faces an unenviable choice: “compl[y] with the lower court’s advisory dictum without opportunity to seek appellate [or certiorari] review,” or “def[y] the views of the lower court, adher[e] to practices that have been declared illegal, and thus invit [e] new suits” and potential “punitive damages.” Horne, supra, at 247-248.

[27]Adherence to Saucier‘s two-step protocol departs from the general rule of constitutional avoidance and runs counter to the “older, wiser judicial counsel ‘not to pass on questions of constitutionality … unless such adjudication is unavoidable.’” …

[28]This flexibility properly reflects our respect for the lower federal courts that bear the brunt of adjudicating these cases. Because the two-step Saucier procedure is often, but not always, advantageous, the judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each case.

C

[29]Any misgivings concerning our decision to withdraw from the mandate set forth in Saucier are unwarranted. Our decision does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, the development of constitutional law is by no means entirely dependent on cases in which the defendant may seek qualified immunity. Most of the constitutional issues that are presented in § 1983 damages actions and Bivens cases also arise in cases in which that defense is not available, such as criminal cases and § 1983 cases against a municipality, as well as § 1983 cases against individuals where injunctive relief is sought instead of or in addition to damages. See Lewis, 523 U.S., at 841, n.5, 118 S. Ct. 1708 (noting that qualified immunity is unavailable “in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion”).

[30]We also do not think that relaxation of Saucier‘s mandate is likely to result in a proliferation of damages claims against local governments. Cf. Brief for Nat. Assn. of Counties et al. as Amici Curiae 29, 30 (“[T]o the extent that a rule permitting courts to bypass the merits makes it more difficult for civil rights plaintiffs to pursue novel claims, they will have greater reason to press custom, policy, or practice [damages] claims against local governments”). It is hard to see how the Saucier procedure could have a significant effect on a civil rights plaintiff’s decision whether to seek damages only from a municipal employee or also from the municipality. Whether the Saucier procedure is mandatory or discretionary, the plaintiff will presumably take into account the possibility that the individual defendant will be held to have qualified immunity, and presumably the plaintiff will seek damages from the municipality as well as the individual employee if the benefits of doing so (any increase in the likelihood of recovery or collection of damages) outweigh the litigation costs.

[31]Nor do we think that allowing the lower courts to exercise their discretion with respect to the Saucier procedure will spawn “a new cottage industry of litigation … over the standards for deciding whether to reach the merits in a given case.” Brief for Nat. Assn. of Counties, supra, at 29, 30. It does not appear that such a “cottage industry” developed prior to Saucier, and we see no reason why our decision today should produce such a result.

IV

[32]Turning to the conduct of the officers here, we hold that petitioners are entitled to qualified immunity because the entry did not violate clearly established law. An officer conducting a search is entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment. See Anderson, 483 U.S. at 641, 107 S. Ct. 3034. This inquiry turns on the “objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” …

[33]When the entry at issue here occurred in 2002, the “consent-once-removed” doctrine had gained acceptance in the lower courts. This doctrine had been considered by three Federal Courts of Appeals and two State Supreme Courts starting in the early 1980’s. See, e.g., United States v. Diaz, 814 F.2d 454, 459 (CA7), cert. denied, 484 U.S. 857, 108 S. Ct. 166, 98 L. Ed.2d 120 (1987); United States v. Bramble, 103 F.3d 1475 (C.A.9 1996); United States v. Pollard, 215 F.3d 643, 648–649 (CA6), cert. denied, 531 U.S. 999, 121 S. Ct. 498, 148 L. Ed.2d 469 (2000); State v. Henry, 133 N.J. 104, 627 A.2d 125 (1993); State v. Johnston, 184 Wis.2d 794, 518 N.W.2d 759 (1994). It had been accepted by every one of those courts. Moreover, the Seventh Circuit had approved the doctrine’s application to cases involving consensual entries by private citizens acting as confidential informants. See United States v. Paul, 808 F.2d 645, 648 (1986). The Sixth Circuit reached the same conclusion after the events that gave rise to respondent’s suit, see United States v. Yoon, 398 F.3d 802, 806-808, cert. denied, 546 U.S. 977, 126 S Ct. 548, 163 L. Ed.2d 460 (2005), and prior to the Tenth Circuit’s decision in the present case, no court of appeals had issued a contrary decision.

[34]The officers here were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on “consent-once-removed” entries. The principles of qualified immunity shield an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law. Police officers are entitled to rely on existing lower court cases without facing personal liability for their actions. In Wilson, we explained that a Circuit split on the relevant issue had developed after the events that gave rise to suit and concluded that “[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.” 526 U.S., at 618. Likewise, here, where the divergence of views on the consent-once-removed doctrine was created by the decision of the Court of Appeals in this case, it is improper to subject petitioners to money damages for their conduct.

[35]Because the unlawfulness of the officers’ conduct in this case was not clearly established, petitioners are entitled to qualified immunity. We therefore reverse the judgment of the Court of Appeals.

It is so ordered.

Pearson v. Callahan – Audio and Transcript of Oral Argument