SCOTUS overhauls qualified immunity procedure

The Supreme Court unanimously held that courts considering a claim of qualified immunity are no longer required to apply the two-stage analysis articulated in Saucier v. Katz, 533 U.S. 194 (2001).

Today’s holding, which overrules Saucier, could significantly undermine the development of new constitutional rules benefitting victims of constitutional violations by government officials. Justice Alito wrote for the unanimous Court in Pearson v. Callahan, --- S.Ct. ----, 2009 WL 128768 (Jan. 21, 2009) (No. 07-751).

              Previously, a court hearing a government official’s claim of qualified immunity from suit was required to follow a two-step procedure.  First, the court would determine whether the official’s alleged actions violated the plaintiff’s constitutional rights.  Saucier v. Katz, 533 U.S. 194, 201 (2001).  Only after the court completed this first stage of the qualified immunity analysis could it then proceed to a second question: whether the right at issue was “clearly established” at the time of the official’s actions.  Id.  Under today’s decision in Pearson v. Callahan, however, this two-step process “should no longer be regarded as mandatory.”  Slip Op. at 10.  Instead, lower court judges now have discretion to determine which prong of the qualified immunity analysis should be addressed first in a particular case.  Id.

 

                The Court acknowledged that the Saucier two-step framework provided an important vehicle for ensuring that qualified immunity does not result in “constitutional stagnation.”  Id. at 7.  Because government officials enjoy total immunity from suits alleging novel constitutional violations—that is, violations which are not “clearly established”—the qualified immunity doctrine could prevent the recognition of new constitutional rights.  If every suit involving a novel right is dismissed solely because that right’s existence is not “clearly established,” courts will never recognize new rights which future plaintiffs can rely upon in similar cases.

 

                The two-step framework alleviated this problem by requiring courts to announce new constitutional rights before determining whether the right was clearly established at the time of an alleged violation.  Although today’s unanimous opinion by Justice Alito recognized that it may still be “beneficial” for lower courts to apply this framework in cases which raise issues “that do not frequently arise in cases in which a qualified immunity defense is unavailable,” slip op. at 11, the Court offered several reasons why courts should not always apply the two-step process.

 

                First, the Court offered sympathies to lower courts “with heavy caseloads” who are “often understandably unenthusiastic about what may seem to be an essentially academic exercise.”  Id.  Moreover, the Court explained, the parties to qualified immunity litigation may incur additional litigation expenses and delays while a court resolves difficult constitutional questions that do not implicate clearly established rights.  Thus, doing away with the mandatory two-step framework promotes judicial efficiency—at least in the short term.

 

                Second, because qualified immunity claims are resolved in the earliest stages of litigation, the Supreme Court feared that new constitutional rules were being established without first developing a sufficient factual basis for the underlying claim.  In a similar vein, the Court warned of cases “in which the briefing of constitutional questions is woefully inadequate” to permit a court to fully consider the issues presented.  Id. at 14.  In both circumstances, the Court suggests that it is better to “quickly and easily decide that there was no violation,” rather than handing down a broad reaching decision on the basis of poor briefing or an insufficient record.  Id.

 

                Third, the Court warned that “[r]igid 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.”  Id.  Because a defendant who successfully claims that their actions do not violate clearly established law is the winning party, they are often unable to appeal a court’s threshold determination that their actions violated a new constitutional rule.  By overruling Saucier, the Court hopes to protect the right of defendants to appeal all adverse decisions to a higher court.

 

                Finally, the Court also invoked the doctrine of constitutional avoidance as a justification for its decision, noting the “older, wiser judicial counsel ‘not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.’”  Id. at 15 (quoting Scott v. Harris, 550 U.S. 372, 388 (2007) (Breyer, J., concurring)).

 

                Although the Court claims that today’s decision will not create a “new cottage industry of litigation” over when courts should apply the two-step framework, the conversion of a once-mandatory doctrine to an optional matter within judges’ discretion recalls somewhat the recent explosion of circuit splits created when the Supreme Court declared the Sentencing Guidelines to be merely advisory in United States v. Booker, 543 U.S. 220 (2005).  Nevertheless, while it remains to be seen how the lower courts will adapt to today’s decision, the Court’s highly critical treatment of its previous decision in Saucier suggests that cases applying the two-step framework may become fairly rare.  Outside of cases raising issues “that do not frequently arise in cases in which a qualified immunity defense is unavailable,” Pearson, Slip Op. at 11, the two-step framework’s shield against constitutional stagnation may now be a relic of the past.