Restore the “Rigid Order of Battle Rule” for Qualified Immunity Cases?

When the complaining party in a lawsuit must clear multiple hurdles in order to obtain relief, does the judge need to decide them in any particular order? The answer is “sometimes.” See pages 20-23 of CJLF’s brief in Brown v. Davenport, presently pending in the U.S. Supreme Court.

In cases where a public employee (very often a police officer) is claimed to have violated someone’s rights and asserts qualified immunity, there was for eight years a “rigid order of battle rule.” The Supreme Court decided in Saucier v. Katz (2001) that judges must decide whether the plaintiffs’ allegations, if true, would amount to a constitutional violation before deciding whether that rule was “clearly established” so as to defeat the claim of qualified immunity. In Pearson v. Callahan (2009), the Court decided unanimously that the rule was a bad idea and dumped it. See this post.

John Ketchum has this article in the City Journal calling for the return of the Saucier rule. Though I supported dumping the rule, Ketchum does make some interesting points.

The main reason that the Court in Saucier gave for the rule is to develop the body of law so that in the futures officers know what is and is not allowed. Once the Supreme Court brought police use of force under the Fourth Amendment’s umbrella of “unreasonable … seizures” there was no way other than case law to flesh out the limits. A statute or regulation saying that a given practice is allowed in a given situation is only tentative until the courts give the final word in the process of deciding a case.

Under the qualified immunity rule and Pearson, a court may decide “there is no clearly established law that practice X in situation Y violates the Fourth Amendment. That is enough to dismiss the case, and we need not and do not decide if there actually was a violation here.” That is, usually, the most efficient way to decide the case, clearing it off the docket of an overloaded court and making room for the next case. However, the next time an officer does X in situation Y there still is no clearly established law, so on it goes.

Ketchum repeats that argument. He writes that in the two qualified immunity cases the Supreme Court decided October 18 (see Bill Otis’s post), “By failing to decide the merits of the excessive-force claims, the Court has again stunted the development of Fourth Amendment law.” However, in Pearson the Court decided unanimously that the development-of-the-law rationale for the Saucier rule was insufficient to justify the cost in inefficient use of judicial resources, so without an additional reason the chances of getting Pearson reconsidered by the Court are approximately zilch. Ketchum calls for Congress to act. Maybe if they can’t agree on whether and how to change the qualified immunity rule they can at least agree on dumping Pearson and reinstating Saucier? I very much doubt that this dysfunctional Congress can even get together on that.

Here is the additional argument. Perhaps the Pearson rule is undermining public confidence in the qualified immunity rule and in the courts. “These decisions widen the door for critics of qualified immunity to speak as if the only thing that saved the defendants from ‘accountability’ is the lack of a prior case with virtually identical facts.”

That is a point worthy of consideration. I am surprised at how many generally informed people have a deeply skewed impression of how qualified immunity works in the real world. That is, of course, largely the fault of news media who publish one side’s claims uncritically as if they were facts. But the large number of cases that find officers not liable without holding (as is usually the case) that their actions were in fact entirely legal and justified provides ammunition to the anti-police movement.

Is this consideration weighty enough to convince the Supreme Court to move the needle back in the direction of deciding the merits first, even if not going all the way back to Saucier‘s “rigid order of battle rule”? It is a thought worth pondering.

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