Supreme Court abandons rigid qualified immunity procedure

Public officials have qualified immunity from lawsuits. That means they enjoy some, but not total, immunity from constitutional claims, on the theory that if they act in good faith they should not have to stand trial for damages claims. The Supreme Court this week clarified how exactly the federal courts should resolve immunity defenses. The case is Pearson v. Callahan, decided on January 21.

First, some background. If the state of the law is not clear when someone's constitutional rights are violated, the government actor, usually a public official or police officer, is given the benefit of the doubt. After all, if the courts are unclear as to whether a specific constitutional "right" exists, then the public official is not expected to foresee that what he is doing may be found illegal in the future. All of this stems from the fact that constitutional law is case-law driven, in that the provisions of the Bill of Rights are incrementally developed over time through court decisions.

So, in resolving a qualified immunity defense, the court has to do two things: identify the constitutional right that is relevant to the lawsuit, and then determine if that right was clearly established at the time the plaintiff's rights were violated. If the right was not clearly established, then the case is dismissed. In 2001, the Supreme Court said that courts have to first identify the constitutional right and then determine if it was clearly established when the plaintiff was aggrieved. That case was Saucier v. Katz, 533 U.S. 194 (2001). One of the rationales for this two-step procedure was that if the courts decide only that the constitutional right was not clearly-established, the courts will never get around to identifying exactly what those rights were, so that the law will never be "clearly established." If the court first decides that the plaintiff identified a legitimate constitutional right, then even if it was not clearly established as to his case, that right will be on the books and therefore clearly established for the next guy who brings a similar claim.

The Supreme Court now says that procedure is no longer mandatory. While the Court recognizes it may be a good idea from time to time for courts to first identify the existence of a constitutional right, it is not always necessary if the court is convinced that such a right was not clearly established at the time of the incident, and it may be a waste of judicial resources to identify the right in the first instance. In rejecting a procedure that it advocated only eight years ago, the Court says: "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."

The Supreme Court in particular was listening to lower court judges who criticized the rigid two-step rule as unnecessarily forcing them to identify constitutional rights for sake of doing so only to then find that the law was not clear at the time of the events giving rise to the case. Courts are now free to follow the Saucier procedure in their discretion. The Supreme Court explains, "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 constitutional right happens to be.'"