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U.S. Supreme Court Recedes from Saucier’s Mandatory Provisions for Determining Qualified Immunity Claims

by David M. Reutter

The U.S. Supreme Court has retreated from a mandatory procedural practice for resolving government officials’ qualified immunity claims, leaving it to the discretion of lower courts as to which prong of the test to apply as required by the facts of the case.

At issue was the Supreme Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001). Prior to that ruling, the Court had held “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.”

Saucier made that suggestion a mandate, requiring that the determination of whether “the facts alleged show the officer’s conduct violated a constitutional right ... must be the initial inquiry” in every case where a qualified immunity defense is raised. After completing that step, the district court may then turn to “the next, sequential step” of “whether the right was clearly established.”

This case, brought by Afton Callahan, began in a Utah federal district court in a lawsuit that alleged officers from the Central Utah Narcotics Task Force had violated Callahan’s Fourth Amendment rights. In 2002, Brian Bartholomew was charged with unlawful possession of methamphetamine. He informed the officers that he was to buy more of the drug later that day from Callahan.

The officers had Bartholomew assure them that drugs were present in Callahan’s home. After searching Bartholomew to ensure he didn’t have any drugs, the officers gave him a marked $100 bill and a concealed transmitter to monitor his conversations. Once Bartholomew gave the arrest signal, officers entered Callahan’s trailer and searched it, recovering a large bag of methamphetamine and the $100 bill.

The Utah Court of Appeals later threw out Callahan’s conviction, holding the warrantless search was illegal. After Callahan sued the officers for entering his home without a warrant, the federal district court granted the officers qualified immunity.

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 viewed contraband in plain sight. Thus, the officers reasonably could have believed that doctrine authorized their conduct.

On appeal, the Tenth Circuit Court of Appeals “took no issue when the initial consent was granted to an undercover officer,” but disagreed with “broad[ening] this doctrine to grant informants the same capabilities as undercover officers.” Finding the “right to be free in one’s home from unreasonable searches and arrests” was clearly established, the appellate court held the grant of qualified immunity was erroneous.

The U.S. Supreme Court granted certiorari on the issue of whether the mandatory procedure set out in Saucier as to qualified immunity determinations should be retained.
The Court held that the doctrine of stare decisis did not prevent it from revisiting Saucier, as a departure from that precedent would not upset settled expectations because Saucier consisted of a rule that was judge-made and adopted for court operations, not a statute promulgated by Congress. In addition, Saucier had defied consistent application by lower courts.

The Supreme Court found that rigid adherence to Saucier may create bad decision making where briefing related to constitutional questions is inadequate. It also may make appellate review unavailable in cases where the court finds that the defendant violated a constitutional right but that the right was not clearly established. “As the winning party, the defendant’s right to appeal the adverse holding on the constitutional question may be contested,” the Court wrote. This places the defendant in the position of complying with the lower court’s advisory dictum without having an opportunity to seek appellate review, or defying the lower court and adhering to practices that have been declared illegal, thus inviting new suits.

Saucier’s protocol departs from the “older, wiser judicial counsel ‘not to pass on questions of constitutionality ... unless such adjudication is unavailable.’” Thus, the Supreme Court held that respect for lower courts requires giving them discretion in how to apply the two-prong test for qualified immunity. In this case, the district court’s ruling on the question of qualified immunity was proper, and the Tenth Circuit’s decision was therefore reversed. See: Pearson v. Callahan, 129 S.Ct. 808 (2009).

In regard to Fourth Amendment law, it is important to note that there is a split between Circuits on the “consent-once-removed” doctrine. The Sixth and Seventh Circuits have approved that doctrine as to informants, but the Tenth Circuit’s decision in this case holds otherwise.

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Related legal case

Pearson v. Callahan