Qualified Immunity and Saucier v. Katz

Thanks to Dave and the rest of the authors here for inviting me to guest this month. I’m really looking forward to it.

I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:

“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”

In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff’s constitutional claim before turning to the defendant’s assertion of qualified immunity. The Supreme Court has stated that this order-of-decisionmaking rule encorages the development of constitutional law and provides crucial guidance to official actors regarding what the Constitution requires of them.

Saucier has not been popular with lower federal courts or with a number of members of the Court itself. In a forthcoming article in the George Mason Law Review I urge the Court not to overturn Saucier. I take issue both with those who argue against Saucier on prudential grounds and those who argue that deciding the substantive question before the immunity quesiton violates Article III’s ban on advisory opinions.


In this article, a follow-on to a piece I wrote in 2002 I argue that if the Supreme Court were to either permit courts to resolve the remedial question first (as it has in the ineffective assistance of counsel context) or to require federal courts to do so (as it has in the habeas corpus context) then lower court judges will inevitably skirt important constitutional questions and the law will be denied definition and clarity. I argue that the merits of claim should be bypassed only where it is clear a priori that the plaintiff will not be entitled to a remedy.

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6 Responses

  1. Jack Preis says:

    Interesting post, Sam; I’m looking forward to seeing what the S.Ct. says on this.

    I care about const. rights as much as the next guy, but I confess to some skepticism when it comes to your concern that constitutional “law will be denied definition and clarity” if Saucier is overturned. The force of your claim depends on the role that constitutional tort actions play in the elucidation of constitution law. I tend the think the role is smaller than many people believe, and perhaps not very large at all. Constitutional law will continue to be elucidated in criminal actions (purusant to the exclusionary rule or other defenses), habeas actions (though I admit Teague will sometimes be a problem here) and suits for injunctive relief. Maybe the best question to ask is this: what niche of constitutional law will remain systematically unexplored if Saucier is overturned? The best example I can think of is a case testing the NSA wiretaps. The government is not using evidence obtained under this program to prosecute anybody (thus precluding criminal defenses or habeas suits) and has ceased the program (thus precluding injunctive relief). In the end, these types of questions beg for an empirical rather than theoretical answer. I’m not sure there is a way to test them empircally though. So I readily admit my hunch may be no better than yours. We’ll see what the Court says soon enough, I guess.

  2. Jack Preis says:

    Interesting post, Sam; I’m looking forward to seeing what the S.Ct. says on this.

    I care about const. rights as much as the next guy, but I confess to some skepticism when it comes to your concern that constitutional “law will be denied definition and clarity” if Saucier is overturned. The force of your claim depends on the role that constitutional tort actions play in the elucidation of constitution law. I tend the think the role is smaller than many people believe, and perhaps not very large at all. Constitutional law will continue to be elucidated in criminal actions (purusant to the exclusionary rule or other defenses), habeas actions (though I admit Teague will sometimes be a problem here) and suits for injunctive relief. Maybe the best question to ask is this: what niche of constitutional law will remain systematically unexplored if Saucier is overturned? The best example I can think of is a case testing the NSA wiretaps. The government is not using evidence obtained under this program to prosecute anybody (thus precluding criminal defenses or habeas suits) and has ceased the program (thus precluding injunctive relief). In the end, these types of questions beg for an empirical rather than theoretical answer. I’m not sure there is a way to test them empircally though. So I readily admit my hunch may be no better than your claim. We’ll see what the Court says soon enough, I guess.

  3. Howard Wasserman says:

    Jack: Let me suggest two areas: First, excessive force, under both the 4th and 8th Amendments. Second, free speech claims from public rallies and protests arising out of major events (political conventions, trade meetings, etc.). The increasingly common governmental strategy is to enact severe, likely unconstitutional, restrictions on public expression right on the eve of the event to be protested, not leaving enough time for pre-enforcement review, and sunsetting them immediately after the event. The regulations then are enforced during the event and the only means of a challenge is a post-hoc actions for nominal and perhaps punitive damages and attorneys’ fees.

  4. Sam Kamin says:

    I agree with Howard that the Fourth Amendment is an area where the law is clarified primarily through damages suits against public officials. Stone v. Powell closes habeas as a means for creating Fourth Amendment precedent. Lyons v. City of Los Angeles makes injunctive suits very unlikely for most plaintiffs. Thus, if the Supreme Court overturns Saucier and permits courts to avoid clarifying the law in 1983 damages actions, it’s hard for me to see too many avenues for the explication of Fourth Amendment precedent. I think it’s no accident that many of the 1983 cases that have been part of the court’s order-of-decision-making jurisprudence (Saucier, Sacramento v. Lewis, and and now Callahan) are Fourth Amendment excessive force cases.

  5. Jack says:

    Howard and Sam- I agree and disagree. The law of excessive force under the Fourth Amendment will certainly suffer. Good point. There is no way to foresee such ad hoc behavior in order to get an injunction (Lyons) and no way to challenge the behvior in a criminal setting (exclusionary rule). As for the rest of Fourth Amendment law, I’m not so sure I agree. The exclusionary rule still does the lion’s share of the work in this area. But I’ll also admit that the exclusionary does not spread across the entire Amendment. The Court has held in a couple instances (can’t remember which ones) that exclusion is not the appropriate remedy for a const. violation during an arrest. I guess one would need to go through the Fourth Amendment claim by claim to see how it pans out. (BTW- As to Stone v. Powell in the habeas setting, good point. Forgot about that.)

    I’m not so sure that I buy the First Amendment argument though. It may be that, given the phenomenon Howard describes, we need const. tort actions to assist with enforcement or corrective justice, but I guess I’m skeptical again as to how much those actions elucidate First Amendment law itself. What about First Amendment defenses advanced by the parade participants who are arrested? Even if we focus solely on enforcement of rights, however, will const. tort actions really dissuade the government from such violations? This is an age old debate, to be sure, but I bet the deterrence rationale is pretty weak in First Amendment cases where damages will typically by low (Carey v. Piphus). As to corrective justice for the arrested parader, yes, a const. tort action is his only hope, assuming $1,500 in damages makes him “whole.”

    So I agree that the const tort action is essential in some instances but I’m not sure how many such instances exist (though you guys have pointed out some good ones). The question, as has been begged before, is whether those instances are worth the overall costs.

  6. Howard Wasserman says:

    Jack:

    Two thoughts. First, too often there are no arrests made–speakers are just forced into protest pens or pushed out of the park or away from their preferred location. So the § 1983 remains the only way to challenge the restriction.

    Second, I agree that reliance on § 1983 damages claims to vindicate First Amendment rights is thoroughly ineffectual–a point I hope to explore about 3 articles from now. But I would not use that fact as a means to throw out the possible benefits of this approach to making constitutional law, depending on how one views Saucier and what we do about that case.

    By the way, I should note that I always have been a critic, not only of Saucier itself, but of the entire framework to qualified immunity dating back to Anderson and Harlow.