-
1
-
-
75649129166
-
-
note
-
129 S. Ct. 808 (2009).
-
-
-
-
2
-
-
75649145765
-
-
note
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42 U.S.C. § 1983 (2006).
-
-
-
-
3
-
-
75649112021
-
-
note
-
533 U.S. 194 (2001).
-
-
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-
4
-
-
75649085750
-
-
note
-
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Bivens actions for constitutional violations are equivalent to § 1983 suits, except they are brought against federal officials rather than state or local actors.
-
-
-
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5
-
-
75649128804
-
-
note
-
Saucier, 533 U.S. at 202.
-
-
-
-
6
-
-
75649142623
-
-
note
-
See infra Part III.A.
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-
-
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7
-
-
75649099849
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-
note
-
500 U.S. 226 (1991).
-
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8
-
-
75649125366
-
-
note
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533 U.S. at 201.
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-
9
-
-
75649084994
-
-
note
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Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C. L. REV. 847, 930 (2005) (examining qualified immunity actions in two years following Saucier as part of a broader point about remedial deterrence and its relationship to qualified immunity).
-
(2005)
The Rise of Unnecessary Constitutional Rulings
, vol.847
, pp. 930
-
-
Healy, T.1
-
10
-
-
75649084994
-
-
note
-
Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C. L. REV. 847, 930 (2005) (examining qualified immunity actions in two years following Saucier as part of a broader point about remedial deterrence and its relationship to qualified immunity). at 930, 937 n.431.
-
(2005)
The Rise of Unnecessary Constitutional Rulings
, vol.847
, pp. 930
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-
Healy, T.1
-
15
-
-
75649098411
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-
note
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386 U.S. 547, 555-57 (1967).
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16
-
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75649131590
-
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note
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457 U.S. 800, 807 (1982).
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17
-
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75649090539
-
-
note
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457 U.S. 800, 807 (1982).
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18
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75649093090
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note
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457 U.S. 800, 807 (1982). (quoting Butz v. Economou, 438 U.S. 478, 506 (1978)).
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-
-
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19
-
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75649143775
-
-
note
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To invoke qualified immunity, a government official first must establish that she was acting within the scope of her discretionary authority. The burden then shifts to the plaintiff to overcome the defense of qualified immunity. See Bates v. Harvey, 518 F.3d 1233, 1242 (11th Cir. 2008).
-
-
-
-
20
-
-
75649113932
-
-
note
-
Harlow, 457 U.S. at 818. Before Harlow, a government official needed to demonstrate a subjective element-the lack of malicious intent-in order to be granted qualified immunity. See, e.g., Pierson, 386 U.S. at 557.
-
-
-
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21
-
-
75649150507
-
-
note
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Saucier v. Katz, 533 U.S. 194, 200 (2001).
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-
-
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22
-
-
75649144127
-
-
note
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See, e.g., Hughes, Saucier v. Katz, 533 U.S. 194, 200 (2001). note 11, at 407; Leong, supra note 11, at 670.
-
-
-
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23
-
-
75649106933
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-
note
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500 U.S. 226 (1991).
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24
-
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75649127366
-
-
note
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Hughes, 500 U.S. 226 (1991). note 11, at 408-12;
-
-
-
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25
-
-
75649137754
-
-
note
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Leong, Hughes, 500 U.S. 226 (1991) note 11, at 673-74. For discussion, see infra Part IV.A-B.
-
-
-
-
26
-
-
75649143397
-
-
note
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Hughes, Hughes, 500 U.S. 226 (1991) note 11, at 407 n.39 ("In analyzing qualified immunity issues, this circuit normally requires a two step process: (1) "[t]he initial determination is whether the claim itself is viable, whether the actions of the plaintiff are constitutionally protected[]' and (2) if so, the next step is an evaluation of whether the "constitutional right asserted was "clearly established" at the time of [the public official's] conduct so that a reasonable official would have understood that his conduct violated that right.'" (quoting Thompson v. City of Starkville, 901 F.2d 456, 468 n.12 (5th Cir. 1990)) (alteration in original)).
-
-
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27
-
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75649141699
-
-
note
-
See infra Part I.B.
-
-
-
-
28
-
-
75649102574
-
-
note
-
See, e.g., Molinelli v. Tucker, 901 F.2d 13 (2d Cir. 1990); Williams v. Smith, 781
-
-
-
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29
-
-
75649110168
-
-
note
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F.2d 319 (2d Cir. 1986).
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30
-
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75649087084
-
-
note
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500 U.S. at 232-33.
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31
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75649129165
-
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note
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500 U.S. at 232-33. at 232.
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32
-
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75649119748
-
-
note
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Siegert v. Gilley, 895 F.2d 797, 803 (D.C. Cir. 1990).
-
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33
-
-
75649130866
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note
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500 U.S. at 232.
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34
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75649096100
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note
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500 U.S. at 232.
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35
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75649140987
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note
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See, e.g., Hughes, 500 U.S. at 232. note 11, at 408; Leong, supra note 11, at 670.
-
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36
-
-
75649087474
-
-
note
-
129 S. Ct. 808, 816 (2009).
-
-
-
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37
-
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75649100966
-
-
note
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See, e.g., Hughes, 129 S. Ct. 808, 816 (2009). note 11, at 408-12;
-
-
-
-
38
-
-
75649103665
-
-
note
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Leong, See, e.g., Hughes, 129 S. Ct. 808, 816 (2009). note 11, at 670.
-
-
-
-
39
-
-
75649116541
-
-
note
-
Hughes, 129 S. Ct. 808, 816 (2009). note 11, at 408.
-
-
-
-
40
-
-
75649109780
-
-
note
-
Healy, Hughes, 129 S. Ct. 808, 816 (2009). note 9, at 879. Healy cites Powers v. CSX Transportation, Inc., 105 F. Supp. 2d 1295 (S.D. Ala. 2000), as an example of a case supporting this argument. Healy, supra note 9, at 879 n.162 (""[T]he Court concludes that it is appropriate to... address first whether the constitutional and statutory rights asserted by the plaintiff were clearly established....'" (quoting Powers, 105 F. Supp. 2d at 1308) (alteration in original)); see also Shepherd v. Sanchez, No. 96 Civ. 9012(LAP), 2000 WL 1010829, at *4-*5 (S.D.N.Y. July 21, 2000); Does v. Covington County Sch. Bd. of Educ., 930 F. Supp. 554, 576 (M.D. Ala. 1996); Bapat v. Conn. Dep't of Health Servs., 815 F. Supp. 525, 535 (D. Conn. 1992).
-
-
-
-
41
-
-
75649118291
-
-
note
-
See Leong, Hughes, 129 S. Ct. 808, 816 (2009). note 11, at 674 (citing McCall v. Williams, 59 F. Supp. 2d 556 (D.S.C. 1999); Cline v. Binder, 187 F.3d 628 (4th Cir. 1999) (unpublished table decision)); infra Part IV.
-
-
-
-
42
-
-
75649152176
-
-
note
-
523 U.S. 833 (1998).
-
-
-
-
43
-
-
75649131591
-
-
note
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523 U.S. 833 (1998). at 842 n.5.
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-
-
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44
-
-
75649129415
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-
note
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526 U.S. 286 (1999).
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-
-
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45
-
-
75649153093
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-
note
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526 U.S. 603 (1999).
-
-
-
-
46
-
-
75649097908
-
-
note
-
526 U.S. 603 (1999). at 609 (quoting Gabbert, 526 U.S. at 290).
-
-
-
-
47
-
-
75649126994
-
-
note
-
Hughes, 526 U.S. 603 (1999). at 609 (quoting Gabbert, 526 U.S. at 290). note 11, at 412-13.
-
-
-
-
48
-
-
75649128421
-
-
note
-
Leong, Hughes, 526 U.S. 603 (1999). at 609 (quoting Gabbert, 526 U.S. at 290). note 11, at 670.
-
-
-
-
49
-
-
75649151786
-
-
note
-
Saucier v. Katz, 533 U.S. 194, 200 (2001).
-
-
-
-
50
-
-
75649107331
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-
note
-
Saucier v. Katz, 533 U.S. 194, 200 (2001). at 201.
-
-
-
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51
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-
75649121561
-
-
note
-
Saucier v. Katz, 533 U.S. 194, 200 (2001). at 201.
-
-
-
-
52
-
-
75649120845
-
-
note
-
Saucier v. Katz, 533 U.S. 194, 200 (2001). at 201.
-
-
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53
-
-
75649103287
-
-
note
-
Saucier v. Katz, 533 U.S. 194, 200 (2001). at 201.
-
-
-
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54
-
-
75649087085
-
-
note
-
Saucier v. Katz, 533 U.S. 194, 200 (2001). at 201.
-
-
-
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55
-
-
75649086240
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-
note
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County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).
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-
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56
-
-
75649139244
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-
note
-
County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).
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57
-
-
75649151281
-
-
note
-
Saucier, 533 U.S. at 201.
-
-
-
-
58
-
-
75649101867
-
-
note
-
Garcia ex rel. Garcia v. Miera, 817 F.2d 650, 656-57 n.8 (10th Cir. 1987).
-
-
-
-
60
-
-
70349470023
-
-
note
-
see also John M.M. Greabe, Mirabile Dictum!: The Case for "Unnecessary" Constitutional Rulings in Civil Rights Damages Actions, 74 NOTRE DAME L. REV. 403, 410 (1999) ("The requirement that the allegedly violated right be clearly established at the time of the action in question tends, if not to "freeze' constitutional law, then at least to retard its growth through civil rights damages actions. The corpus of constitutional law grows only when courts address novel constitutional questions, yet a novel claim, by definition, seeks to establish a right that is not already "clearly established.'" (citation omitted)).
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(1999)
Mirabile Dictum!: The Case For "unnecessary" Constitutional Rulings In Civil Rights Damages Actions
, vol.74
, Issue.403
, pp. 410
-
-
Greabe, J.M.M.1
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62
-
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75649115456
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-
note
-
see also Wyatt v. Cole, 504 U.S. 158, 167 (1992) (noting that qualified immunity is meant to strike a balance "between compensating those who have been injured by official conduct and protecting government's ability to perform its traditional functions").
-
-
-
-
63
-
-
0346155183
-
-
note
-
For further discussion of this potential "remedial deterrence" phenomenon in § 1983 actions, see Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 889-99 (1999).
-
(1999)
Rights Essentialism and Remedial Equilibration
, vol.99
, pp. 889-99
-
-
Levinson, D.J.1
-
64
-
-
0346155183
-
-
note
-
For further discussion of this potential "remedial deterrence" phenomenon in § 1983 actions, see Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 889-99 (1999).
-
(1999)
Rights Essentialism and Remedial Equilibration
, vol.99
, pp. 889-99
-
-
Levinson, D.J.1
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65
-
-
75649089825
-
-
note
-
Saucier v. Katz, 533 U.S. 194, 201 (2001) (alteration in original).
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66
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-
75649146718
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-
note
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See infra Part III.
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67
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75649101349
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note
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543 U.S. 194 (2004).
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68
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75649138843
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note
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543 U.S. 194 (2004). at 198.
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69
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75649120844
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note
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543 U.S. 194 (2004). at 198 n.3.
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70
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75649124253
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note
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543 U.S. 194 (2004). at 198 n.3.
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71
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75649150506
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note
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550 U.S. 372 (2007).
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72
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75649099848
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note
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550 U.S. 372 (2007). at 377 n.4.
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73
-
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75649083551
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-
note
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Pearson v. Callahan, 128 S. Ct. 1702, 1702-03 (2008) (mem.) (granting certiorari).
-
-
-
-
74
-
-
75649108644
-
-
note
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Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
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75
-
-
75649137753
-
-
note
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Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). at 821.
-
-
-
-
76
-
-
75649144128
-
-
note
-
It should be noted that Justice Kennedy initially resisted sequencing, but then wrote the majority opinion in Saucier requiring mandatory sequencing. Compare Siegert v. Gilley, 500 U.S. 226, 235 (1991) (Kennedy, J., concurring) ("[I]t seems to reverse the usual ordering of issues to tell the trial and appellate courts that they should resolve the constitutional question first."), with Saucier v. Katz, 533 U.S. 194, 201 (2001) ("The law might be deprived of [an] explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.").
-
-
-
-
77
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75649126625
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-
note
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See, e.g., Morse v. Frederick, 551 U.S. 393, 432 (2007) (Breyer, J., concurring in the judgment in part and dissenting in part) (urging the Court to "end the failed Saucier experiment now"); Scott, 550 U.S. at 387 (Breyer, J., concurring); Brosseau v. Haugen, 543 U.S. 194, 201-02 (2004) (Breyer, J., concurring joined by Scalia & Ginsburg, JJ.) (arguing for reconsideration of Saucier's "rigid "order of battle'" because it "requires courts unnecessarily to decide difficult constitutional questions when there is available an easier basis for the decision (e.g., qualified immunity) that will satisfactorily resolve the case before the court"); Bunting v. Mellen, 541 U.S. 1019 (2004) (Stevens, J., respecting denial of certiorari joined by Ginsburg & Breyer, JJ.) (taking issue with the "unwise judge-made rule under which courts must decide whether the plaintiff has alleged a constitutional violation before addressing the question whether the defendant state actor is entitled to qualified immunity"); id. at 1025 (Scalia, J., dissenting from denial of certiorari joined by Rehnquist, C.J.) ("We should either make clear that constitutional determinations are not insulated from our review... or else drop any pretense at requiring the ordering in every case."); Siegert, 500 U.S. at 235 (Kennedy, J., concurring in the judgment) ("If it is plain that a plaintiff's required malice allegations are insufficient but there is some doubt as to the constitutional right asserted, it seems to reverse the usual ordering of issues to tell the trial and appellate courts that they should resolve the constitutional question first.").
-
-
-
-
78
-
-
75649139958
-
-
note
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See, e.g., Lyons v. City of Xenia, 417 F.3d 565, 580-84 (6th Cir. 2005) (Sutton, J., concurring).
-
-
-
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79
-
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75649148287
-
-
note
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See, e.g., Hatfield-Bermudez v. Aldanondo-Rivera, 496 F.3d 51, 59-60 (1st Cir. 2007); Cherrington v. Skeeter, 344 F.3d 631, 640 (6th Cir. 2003); Koch v. Town of Brattleboro, 287 F.3d 162, 166 (2d Cir. 2002); Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir. 2001); Powers v. CSX Transp., Inc., 105 F. Supp. 2d 1295, 1307-08 (S.D. Ala. 2000).
-
-
-
-
80
-
-
75649101348
-
-
note
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Scott, 550 U.S. at 387-88 (Breyer, J., concurring) (quoting Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944)) (alteration in original).
-
-
-
-
81
-
-
75649110169
-
-
note
-
Pearson v. Callahan, 129 S. Ct. 808, 818-19 (2009).
-
-
-
-
82
-
-
75649150827
-
-
note
-
Pearson v. Callahan, 129 S. Ct. 808, 818-19 (2009). at 819. The difficulty arises because Fourth Amendment violations are routinely presented in terms of "unreasonable" searches and seizures. Similarly, in cases involving the Fourth Amendment, the second prong of the Saucier qualified immunity inquiry requires a court to determine whether the defendant officer's behavior exhibited "objective legal reasonableness." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). In other words, a court must determine whether, in light of the clearly-established law at the time, an objectively reasonable officer could have concluded it was constitutional to engage in the alleged violation. Proponents of mandatory sequencing argue that, in light of the risk that the Fourth Amendment "reasonableness" inquiry and the qualified immunity "objective reasonableness" inquiry might be conflated, it is vital to require that courts make a specific and separate determination on the constitutionality of the officer's behavior. Brief for the United States as Amicus Curiae Supporting Petitioners at 26-27, Pearson, 129 S. Ct. 808 (No. 07-751).
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-
-
-
83
-
-
33750523997
-
-
note
-
For a discussion on how mandatory sequencing might result in the creation of "bad" law, see Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. REV. 1249, 1279 (2006) (stating that mandatory sequencing "is a blueprint for the creation of bad constitutional law"). See also Morse v. Frederick, 551 U.S. 393, 430-31 (2007) (Breyer, J., concurring in the judgment in part and dissenting in part) (noting that mandatory sequencing could "require [courts] to resolve constitutional issues that are poorly presented"); Horne v. Coughlin, 191 F.3d 244, 247 (2d Cir. 1999) (stating that under a mandatory sequencing regime "[j]udges risk being insufficiently thoughtful and cautious in uttering pronouncements that play no role in their adjudication"); Brief for the State of Illinois et al. as Amici Curiae Supporting Petitioners at 20-21, Pearson, 129 S. Ct. 808 (No. 07-751) (noting that mandatory sequencing can result in less-than-adequate briefing of issues, and citing a case wherein "the merits of [the constitutional] issue [were] scarcely mentioned in the briefs on appeal, let alone adequately briefed" (quoting African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2d Cir. 2002)) (alteration in original)); Leong, supra note 11, at 680-81 (noting that the possibility of creating "bad" law "is compounded by the fact that courts often confront the qualified immunity question early in the course of litigation").
-
(2006)
Judging Under the Constitution: Dicta About Dicta
, vol.81
, Issue.1249
, pp. 1279
-
-
Leval, P.N.1
-
84
-
-
75649144493
-
-
note
-
See, e.g., Morse, 551 U.S. at 430 (Breyer, J., concurring in the judgment in part and dissenting in part) (noting that mandatory sequencing can "wast[e] judicial resources"); Brosseau v. Haugen, 543 U.S. 194, 201-02 (2004) (Breyer, J., concurring) ("[W]hen courts' dockets are crowded, a rigid "order of battle' makes little administrative sense...."); Brief for the United States as Amicus Curiae Supporting Petitioners at 31, Pearson, 129 S. Ct. 808 (No. 07-751) ("[An inflexible merits-first sequence] requires the reviewing court to decide the constitutional issue as an initial matter even if resolution of that question is difficult and time-consuming, even if members of an appellate panel are divided about its proper resolution, and even if the court's disposition of the issue turns on idiosyncratic, case- specific factors so that its opinion provides little guidance for future disputes."); Leval, supra note 77, at 1279 n.89 ("[Mandatory sequencing] increases the workload of an already overburdened judiciary."). Contra Brief of Respondent at 53, Pearson, 129 S. Ct. 808 (No. 07-751) (Where sequencing is not mandatory, "district judges may exercise their discretion in a way that does not give the proper weight to [elaborating of constitutional law], by putting their own interest in clearing their dockets as efficiently as possible ahead of the Court's policy of elaborating constitutional norms." (citing Michael L. Wells, The Order-of- Battle in Constitutional Litigation, 60 SMU L. REV. 1539, 1566 (2007))).
-
-
-
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85
-
-
75649138089
-
-
note
-
See, e.g., Morse, 551 U.S. at 431 (Breyer, J., concurring in the judgment in part and dissenting in part) (noting that sequencing could "immunize an incorrect constitutional holding from further review"); Bunting v. Mellen, 541 U.S. 1019, 1023 (2004) (Scalia, J., dissenting) ("[Mandatory sequencing] should not apply where a favorable judgment on qualified-immunity grounds would deprive a party of an opportunity to appeal the unfavorable (and often more significant) constitutional determination."); Lyons v. City of Xenia, 417 F.3d 565, 582 (6th Cir. 2005) (Sutton, J., concurring) ("By multiplying constitutional holdings that are not subject to review in the normal course, a rigid application of the two-step inquiry may do as much to unsettle the law as to settle it."); Horne, 191 F.3d at 247 ("If those government actors defer to the courts' declarations and modify their procedures accordingly, new constitutional rights will have effectively been established by the dicta of [the] lower court without the defendants having the right to appellate review.").
-
-
-
-
86
-
-
10044225615
-
-
note
-
For a discussion of whether, when a plaintiff loses on the second prong of the Saucier inquiry, a finding that a constitutional right has been violated constitutes dictum or a holding of the court, compare Greabe, supra note 55, at 408, with Melissa Armstrong, Note, Rule Pragmatism: Theory and Application to Qualified Immunity Analysis, 38 COLUM. J.L. & SOC. PROBS. 107, 123-28 (2004). See also Bunting, 541 U.S. at 1023-24 (2004) (Scalia, J., dissenting) ("[C]onstitutional determination is not mere dictum in the ordinary sense, since the whole reason we require it to be set forth (despite the availability of qualified immunity) is to clarify the law and thus make unavailable repeated claims of qualified immunity in future cases.").
-
-
-
-
87
-
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75649085749
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-
note
-
See, e.g., Greabe, supra note 55, at 418-24 (arguing that mandatory sequencing does not often impinge upon separation of powers principles embodied in avoidance doctrine); Seth F. Kreimer, Exploring the Dark Matter of Judicial Review: A Constitutional Census of the 1990s, 5 WM. & MARY BILL RTS. J. 427, 459, 466, 506-07 (1997) (pointing out that in relatively few qualified immunity actions are courts asked to rule on the validity of acts of Congress or high ranking executive officials).
-
-
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-
88
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75649145764
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-
note
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Saucier v. Katz, 533 U.S. 194, 201 (2001).
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-
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-
89
-
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75649087083
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note
-
Prior to recent empirical work on this matter, some scholars had done rough calculations of courts' behaviors under Siegert's optional sequencing regime. See Greabe, note 55, at 419 n.35 (finding that courts skipped the constitutional question in fiftyone of seventy-nine representative qualified immunity cases decided around 1997 in which the defendant won on the immunity issue).
-
-
-
-
90
-
-
75649129164
-
-
note
-
Hughes, Prior to recent empirical work on this matter, some scholars had done rough calculations of courts' behaviors under Siegert's optional sequencing regime. See Greabe, note 55, at 419 n.35 (finding that courts skipped the constitutional question in fiftyone of seventy-nine representative qualified immunity cases decided around 1997 in which the defendant won on the immunity issue) note 11, at 418, 424.
-
-
-
-
91
-
-
75649090882
-
-
note
-
Brief of Respondent, Hughes, Prior to recent empirical work on this matter, some scholars had done rough calculations of courts' behaviors under Siegert's optional sequencing regime. See Greabe note 78 at 51, 54.
-
-
-
-
92
-
-
75649111659
-
-
note
-
See, e.g., Brief for the National Campaign to Restore Civil Rights as Amicus Curiae Supporting Respondent at 24-26, Pearson, 129 S. Ct. 808 (No. 07-751); Brief of National Police Accountability Project and Ass'n of American Justice as Amici Curaie Supporting Respondent at 17, Pearson, 129 S. Ct. 808 (No. 07-751).
-
-
-
-
93
-
-
75649087473
-
-
note
-
Leong, See, e.g., Brief for the National Campaign to Restore Civil Rights as Amicus Curiae Supporting Respondent at 24-26, Pearson, 129 S. Ct. 808 (No. 07-751); Brief of National Police Accountability Project and Ass'n of American Justice as Amici Curaie Supporting Respondent at 17, Pearson, 129 S. Ct. 808 (No. 07-751). note 11, at 692-93.
-
-
-
-
94
-
-
75649146351
-
-
note
-
The search string was: "qualified /2 immunity % ci(slip no not unpub! unreport! table)." The search was performed on December 15, 2008. While selecting cases from the Westlaw database and further selecting only published and reported opinions may introduce some inherent bias in the sample, see, e.g., Leong, supra note 11, at 685 n.88, 701-02 (performing logistic regressions to conclude that observed effects in that study were not attributable to Westlaw's publication bias), this Note deliberately includes only published opinions because unpublished opinions are not precedential and thus do not contribute to the "clear establishment" of constitutional rights. See Hughes, supra note 11, at 419 & n.112.
-
-
-
-
95
-
-
0036332194
-
-
note
-
See Lee Epstein & Gary King, The Rules of Inference, 69 U. CHI. L. REV. 1, 108- 12 (2002) (explaining methodological advantage of using random sample in large-n studies to minimize selection bias).
-
-
-
-
96
-
-
75649108643
-
-
note
-
See Paul W. Hughes, Not a Failed Experiment: Wilson-Saucier Sequencing and the Articulation of Constitutional Rights app. D (Aug. 4, 2008) (unpublished appendix, on file with author).
-
-
-
-
97
-
-
75649110915
-
-
note
-
See infra Appendix A.
-
-
-
-
98
-
-
75649149947
-
-
note
-
See, e.g., Shero v. City of Grove, 510 F.3d 1196, 1204 (10th Cir. 2007) (holding that city's and city employees' actions in rejecting plaintiff's requests for council packets, limiting his speaking time at a city council meeting, and filing a declaratory judgment suit against him did not violate his First Amendment rights); Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197, 1201 (10th Cir. 2003) (holding that no substantive due process violation had been alleged where school suspended student for possession of a weapon).
-
-
-
-
99
-
-
75649090881
-
-
note
-
See, e.g., Williams v. Greifinger, 97 F.3d 699, 706-08 (2d Cir. 1996) (holding that prison policy of denying exercise to inmates had long been found to violate the Eighth Amendment, and that it was objectively unreasonable for defendant to believe he was not violating a clearly established right); Scott v. Glumac, 3 F.3d 163, 167 (7th Cir. 1993) (holding that seizure of defendant's automobile was a violation of his Fourth Amendment rights and that a reasonable officer could not have believed there was probable cause to seize the car).
-
-
-
-
100
-
-
75649091591
-
-
note
-
See, e.g., Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir. 2000) (holding that defendant officers had violated plaintiff's Fourth Amendment rights, but were protected by qualified immunity based on a lack of prior precedent on the matter and their reasonable common belief that their superior had secured a warrant); Clue v. Johnson, 179 F.3d 57, 61- 62 (2d Cir. 1999) (holding that defendant's behavior violated the First Amendment rights of union members, but defendant was entitled to qualified immunity because no court had recognized such rights as of the date of the violation).
-
-
-
-
101
-
-
75649113931
-
-
note
-
See, e.g., Maggio v. Sipple, 211 F.3d 1346, 1354 (11th Cir. 2000) (holding that plaintiff had failed to allege a First Amendment retaliation claim, and could not show, in the alternative, that a reasonable person in the defendants' position would have been on notice that her actions violated clearly-established law); Saylor v. Bd. of Educ., 118 F.3d 507, 513, 515 (6th Cir. 1997) (holding that plaintiff had failed to allege a violation of his substantive due process rights in a corporal punishment claim, and, in the alternative, that the rights in question were not clearly established).
-
-
-
-
102
-
-
75649084263
-
-
note
-
See, e.g., Martin v. Snyder, 329 F.3d 919, 921-22 (7th Cir. 2003) (holding that prison official did not violate any clearly established rights under the Fourteenth Amendment by delaying a prisoner's right to marry); Molinelli v. Tucker, 901 F.2d 13, 16- 17 (2d Cir. 1990) (holding that the constitutional status of urine testing for public employees under the Fourth Amendment was not clearly established at the time plaintiff's urine was tested, and thus defendants were protected by the qualified immunity defense).
-
-
-
-
103
-
-
75649138088
-
-
note
-
This data is summarized infra in Table 1. This Note does not focus on the preSiegert data because that period represents a time when lower courts had no formal guidance from the Supreme Court on sequencing. Therefore, although we consider all data, including pre-Siegert, in Table 1 for the sake of thoroughness, the comparisons that are meaningful for exploring the effects of discretionary versus mandatory sequencing involve only pre- and post-Saucier data, as summarized in Tables 2 and 3.
-
-
-
-
104
-
-
75649126066
-
-
note
-
Throughout this Note, we combine outcomes 1 and 4 because for both an appellate court first confronts the substantive constitutional question and subsequently holds that the plaintiff did not allege a constitutional violation. The pronouncement of outcome 4, that the law was not clearly established at the time of conduct, is merely in the alternative. Note, however, that Table 1 indicates that the frequency of outcome 4 was nearly the same across periods.
-
-
-
-
105
-
-
75649135391
-
-
note
-
Leong posits this conclusion. Leong, Throughout this Note, we combine outcomes 1 and 4 because for both an appellate court first confronts the substantive constitutional question and subsequently holds that the plaintiff did not allege a constitutional violation. The pronouncement of outcome 4, that the law was not clearly established at the time of conduct, is merely in the alternative. Note, however, that Table 1 indicates that the frequency of outcome 4 was nearly the same across periods note 11, at 692-93.
-
-
-
-
106
-
-
75649083917
-
-
note
-
There is no relationship between the name of the test and Pearson v. Callahan, 129 S. Ct. 808 (2009).
-
-
-
-
107
-
-
75649083550
-
-
note
-
See ROBERT V. HOGG, JOSEPH W. MCKEAN & ALLEN T. CRAIG, INTRODUCTION TO MATHEMATICAL STATISTICS 182-84 (6th ed. 2005) (explaining Student's t-test).
-
-
-
-
108
-
-
75649127712
-
-
note
-
For a more detailed elaboration of Student's t-test applied to data from this study, see infra Appendix.
-
-
-
-
109
-
-
75649105114
-
-
note
-
See, e.g., Jeffries, For a more detailed elaboration of Student's t-test applied to data from this study, see infra Appendix note 56, at 87-88.
-
-
-
-
110
-
-
75649093849
-
-
note
-
Leong, For a more detailed elaboration of Student's t-test applied to data from this study, see infra Appendix note 11, at 670.
-
-
-
-
111
-
-
75649119370
-
-
note
-
See id. at 692-93 ("[Appellate and district c]ourts [after Saucier] avoid fewer constitutional questions, and as a result, generate more constitutional law. But the new constitutional law-law that would not have been made before Siegert and Saucier- uniformly denies the existence of plaintiffs' constitutional rights.").
-
-
-
-
112
-
-
75649128056
-
-
note
-
See infra Table 4.
-
-
-
-
113
-
-
75649115064
-
-
note
-
See See infra Table 4.
-
-
-
-
114
-
-
75649118290
-
-
note
-
Leong, See See infra Table 4. note 11, at 693.
-
-
-
-
115
-
-
75649115455
-
-
note
-
For example, Leong writes "the percentage of claims where the court found no constitutional right existed increased dramatically, from 46.2% pre-Siegert to 84.9% in 2006-2007." Leong, See See infra Table 4. note 11. at 690.
-
-
-
-
116
-
-
75649129413
-
-
note
-
Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009) (noting that Saucier mandated sequencing).
-
-
-
-
117
-
-
75649152175
-
-
note
-
Siegert v. Gilley, 500 U.S. 226, 232 (1991).
-
-
-
-
118
-
-
75649094600
-
-
note
-
959 F.2d 539 (5th Cir. 1992).
-
-
-
-
119
-
-
75649108642
-
-
note
-
959 F.2d 539 (5th Cir. 1992). at 545 n.4.
-
-
-
-
120
-
-
75649136288
-
-
note
-
987 F.2d 1 (1st Cir. 1993).
-
-
-
-
121
-
-
75649112721
-
-
note
-
987 F.2d 1 (1st Cir. 1993). at 7 (emphasis added).
-
-
-
-
122
-
-
75649123011
-
-
note
-
See, e.g., Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995) ("When a defendant raises the defense of qualified immunity, this court engages in a two-part, objective inquiry: the court must determine (1) whether the plaintiff has asserted a violation of a federal constitutional right, and (2) whether the constitutional standards implicated were clearly established at the time in question."); Wooten v. Campbell, 49 F.3d 696, 699 (11th Cir. 1995) ("Accordingly, we must first undertake an examination of Wooten's complaint to determine if she possesses a right subject to a constitutional violation."); Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir. 1994) ("To reach the question of whether a defendant official is entitled to qualified immunity, a court must first ascertain whether the plaintiff has sufficiently asserted the violation of a constitutional right at all."); Ricker v. Leapley, 25 F.3d 1406, 1409 (8th Cir. 1994) ("To determine whether [defendants] violated a clearly established right, we must first determine "whether [plaintiff] has asserted a violation of a constitutional right at all.'" (quoting Siegert, 500 U.S. at 232)); Centanni v. Eight Unknown Officers, 15 F.3d 587, 589 (6th Cir. 1994) ("The threshold issue is whether a constitutional right has been violated."); Acierno v. Mitchell, 6 F.3d 970, 977 n.18 (3d Cir. 1993) ("Before determining whether [defendant] is entitled to qualified immunity, we must determine whether plaintiff has sufficiently alleged a constitutional violation."); Navarro v. Barthel, 952 F.2d 331, 333 (9th Cir. 1991) ("Under the Supreme Court's recent decision in Siegert v. Gilley... we must first determine whether [plaintiffs] have "asserted a violation of a constitutional right at all'" (citation omitted) (quoting Siegert, 500 U.S. at 232)); Hunter v. District of Columbia, 943 F.2d 69, 76 (D.C. Cir. 1991) (concluding that Siegert "mandat[ed]" a two-part qualified immunity analysis under which the court must determine
-
-
-
-
123
-
-
75649103663
-
-
note
-
These codes and descriptions were taken directly from Hughes, supra note 90, at app. D.
-
-
-
-
124
-
-
75649100965
-
-
note
-
These codes and descriptions were taken directly from Hughes, supra note 90, at app. D.
-
-
-
-
125
-
-
75649135615
-
-
note
-
The term "population" does not refer to the randomly selected sample, but instead to the full population-here, the full number of federal appellate § 1983 qualified immunity decisions decided during Periods two and three.
-
-
-
|