Qualified immunity in the fifth circuit: Identifying the "obvious" hole in clearly established law

Texas Law Review

Volumn 90, Issue 5, 2012, Pages 1283-1306

  Friedman, Amelia A ^a  

^a NONE

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EID: 84863900683     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (209)

1. 42 U.S.C. § 1983 (2006) ("Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....").
2. Pearson v. Callahan, 555 U.S. 223, 231-32 (2009).
3. Mattos v. Agarano, 661 F.3d 433, 448 (9th Cir. 2011) ("[W]e conclude that, although [the plaintiff] has alleged an excessive force claim, the law was not sufficiently clear at the time of the incident to render the alleged violation clearly established. Accordingly, the defendant officers are entitled to the defense of qualified immunity against [the plaintiff's] § 1983 excessive force claim.")
4. Karen M. Blum, Qualified Immunity: Further Developments in the Post-Pearson Era, 27 TOURO L. REV. 243, 255-58 (2011) (providing a non-exhaustive list of cases where courts held that a defendant violated a plaintiff's constitutional right but granted qualified immunity based on the clearly-established-law requirement).
5. Pearson, 555 U.S. at 231 ("Qualified immunity balances two important interests- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.")
6. Anderson v. Creighton, 483 U.S. 635, 638 (1987) ("[D]amages may offer the only realistic avenue for vindication of constitutional guarantees. On the other hand, permitting damages suits against government officials can entail substantial social costs .... Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity ...." (citations omitted) (internal quotation marks omitted)).
7. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002) ("[T]he defendant was entitled to 'fair warning' that his conduct deprived his victim of a constitutional right ....").
8. 536 U.S. 730 (2002).
9. 583 F.3d 522 (8th Cir. 2009) (en banc).
10. 131 S. Ct. 2074 (2011).
11. 42 U.S.C. § 1983 (2006).
12. Robertson v. Wegmann, 436 U.S. 584, 590-91 (1978) ("The policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law.").
13. Butz v. Economou, 438 U.S. 478, 506 (1978)
14. Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982) ("Consistently with the balance at which we aimed in Butz, we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.").
15. 420 U.S. 308 (1975).
16. Id. at 321.
17. Id. at 322.
18. See Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 662 tbl.1 (1987) (documenting how nonprisoner civil rights filings rose from 296 in 1961 to 21,219 in 1984).
19. See Harlow, 457 U.S. at 815-16 (observing that "[t]he subjective element of the good-faith defense frequently has proved incompatible with [the Court's] admonition in Butz that insubstantial claims should not proceed to trial" and that "substantial costs attend the litigation of the subjective good faith of government officials").
20. Id. at 818.
21. Wilson v. Layne, 526 U.S. 603, 609 (1999) ("A court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." (internal quotation marks omitted)).
22. 483 U.S. 635 (1987).
23. Id. at 639.
24. Id. at 640.
25. Applying this standard, the Anderson Court vacated the Eighth Circuit's decision and redefined the Fourth Amendment right at issue from whether the "general right ... to be free from warrantless searches ... was clearly established" to "whether a reasonable officer could have believed Anderson's warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed."
26. Id. at 640-41, 646.
27. The Court re-characterized the right to encompass the more specific issue of whether it was clearly established that the circumstances the public official confronted did or did not give rise to probable cause.
28. Id. at 640-41.
29. See id. at 639-40 (centering the discussion of how specifically to define a right on the need to curtail plaintiffs from "convert[ing] the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights").
30. See Lassiter v. Ala. A&M Univ., Bd. of Trs., 28 F.3d 1146, 1150 (11th Cir. 1994) ("When considering whether the law applicable to certain facts is clearly established, ... the facts need not be the same as the facts of the immediate case. But they do need to be materially similar." (quoting Adams v. St. Lucie Cnty. Sheriff's Dep't, 962 F.2d 1563, 1575 (11th Cir. 1992) (Edmondson, J., dissenting), approved en banc, 998 F.2d 923 (11th Cir. 1993)), abrogated by Hope v. Pelzer, 536 U.S. 730 (2002)).
31. Hope, 536 U.S. at 734-35.
32. Hope v. Pelzer, 240 F.3d 975, 982 (11th Cir. 2001), rev'd, 536 U.S. 730.
33. Hope, 536 U.S. at 741.
34. In the foundational case for qualified immunity, the Court declared that "a police officer is not charged with predicting the future course of constitutional law" and recognized a "good faith" defense for officers who wrongly arrested a plaintiff pursuant to a law later deemed unconstitutional.
35. Pierson v. Ray, 386 U.S. 547, 557 (1967).
36. Likewise, the Wood Court reasoned it was unfair to hold public officials liable "for every action which is found subsequently to have been violative of a student's constitutional rights."
37. Wood v. Strickland, 420 U.S. 308, 319 (1975).
38. Hope, 536 U.S. at 741 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)).
39. 543 U.S. 194 (2004) (per curiam).
40. Id. at 194-97.
41. Haugen v. Brosseau, 351 F.3d 372, 382, 392 (9th Cir. 2003), rev'd, 543 U.S. 194 (2004).
42. Brosseau, 543 U.S at 199.
43. Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir. 2004) ("The Supreme Court has provided little guidance as to where courts should look to determine whether a particular right was clearly established at the time of the injury.")
44. David R. Cleveland, Clear as Mud: How the Uncertain Precedential Status of Unpublished Opinions Muddles Qualified Immunity Determinations, 65 U. MIAMI L. REV. 45, 63 (2010) ("The Supreme Court has never spelled out what sources of law may clearly establish the law ....")
45. Michael S. Catlett, Note, Clearly Not Established: Decisional Law and the Qualified Immunity Doctrine, 47 ARIZ. L. REV. 1031, 1036 (2005) (arguing that circuit courts cannot agree on what constitutes a proper source of clearly established law because "the Supreme Court has failed to articulate a single approach").
46. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
47. 526 U.S. 603 (1999).
48. Id. at 617.
49. See Brosseau, 543 U.S. at 199-201 (considering various circuit court opinions to determine if a right was clearly established)
50. Hope, 536 U.S. at 741-42 (analyzing state prison regulations and a report from the Department of Justice)
51. Wilson, 526 U.S. at 616-17 (considering police policy pamphlets and a Sixth Circuit decision in order to determine if a right was clearly established in the Fourth Circuit).
52. See Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004) ("Only Supreme Court and Second Circuit precedent existing at the time of the alleged violation is relevant in deciding whether a right is clearly established." (citing Townes v. City of New York, 176 F.3d 138, 144 (2d Cir. 1999)))
53. Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955 (11th Cir. 2003) ("As we have stated, only Supreme Court cases, Eleventh Circuit caselaw, and Georgia Supreme Court caselaw can 'clearly establish' law in this circuit." (citing Hamilton v. Cannon, 80 F.3d 1525, 1532 n.1 (11th Cir. 1996))).
54. See Vaughn v. Ruoff, 253 F.3d 1124, 1129 (8th Cir. 2001) ("We subscribe to a broad view of the concept of clearly established law, and we look to all available decisional law, including decisions from other courts, federal and state, when there is no binding precedent in this circuit." (citing Tlamka v. Serrell, 244 F.3d 628, 634 (8th Cir. 2001)))
55. Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir. 2004) (instructing courts in the Ninth Circuit to look to "whatever decisional law is available ... including decisions of state courts, other circuits, and district courts" (citing Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003)) (internal quotation marks omitted)).
56. See Owens ex rel. Owens v. Lott, 372 F.3d 267, 280 (4th Cir. 2004) ("When there are no such decisions from courts of controlling authority, we may look to 'a consensus of cases of persuasive authority' from other jurisdictions, if such exists." (quoting Wilson, 526 U.S. at 617))
57. Ohio Civil Serv. Emps. Ass'n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988) ("In an extraordinary case, it may be possible for the decisions of other courts to clearly establish a principle of law.").
58. John C. Jeffries, Jr., What's Wrong With Qualified Immunity?, 62 FLA. L. REV. 851, 858 (2010) (noting the Sixth Circuit only "grudgingly" looks beyond its own precedents)
59. Caryn J. Ackerman, Comment, Fairness or Fiction: Striking a Balance Between the Goals of § 1983 and the Policy Concerns Motivating Qualified Immunity, 85 OR. L. REV. 1027, 1036 (2006) ("The Fourth and Sixth Circuits take approaches that are only slightly varied from (and slightly less narrow than) that of the Eleventh Circuit.").
60. McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) (en banc) (per curiam), demonstrates the high threshold plaintiffs must meet to prove a persuasive consensus existed.
61. In McClendon, the plaintiff alleged that a police officer violated his clearly established rights when the officer gave a gang member a pistol while knowing that the man had a history of drug violence and was going to confront the plaintiff.
62. Id. at 320.
63. The issue presented was whether this violated the Due Process Clause of the Fourteenth Amendment based on the state-created-danger theory of liability.
64. Id. at 329.
65. In determining whether the state-created-danger theory was clearly established at the time, the Fifth Circuit considered opinions from six other circuit courts recognizing it as a valid theory of liability.
66. Id. at 330-31.
67. While acknowledging these as potentially valid sources of clearly established law, the Fifth Circuit still granted qualified immunity and concluded that recognition by six different circuits did not provide a "consensus of cases of persuasive authority" because it still failed to "establish the contours of an individual's right."
68. Id. at 329, 333
69. see also Williams v. Ballard, 466 F.3d 330, 333 (5th Cir. 2006) (per curiam) (granting qualified immunity because "even if consideration of these [three circuit court] cases made the number of cases sufficient, the lack of consistency among their rules makes 'the contours of the right' not 'sufficiently clear'" (quoting McClendon, 305 F.3d at 331))
70. Modica v. Taylor, 465 F.3d 174, 188 (5th Cir. 2006) ("[I]n the absence of a prior ruling by the Supreme Court, this court, or a consensus among our sister circuits, we cannot say that the law was clearly established ....").
71. See, e.g., John C. Jeffries, Jr. et al., CIVIL RIGHTS ACTIONS: ENFORCING THE CONSTITUTION 43 (2d ed. 2007) (listing the Fifth Circuit with the Eighth and Ninth Circuits as among those that "agree that persuasive out-of-circuit authority can, under at least some circumstances, clearly establish a constitutional right")
72. Jeffries, supra note 41, at 859 ("The First, Fifth, Seventh, Eighth, and Tenth Circuits are similarly latitudinarian [like the Ninth].").
73. Hope v. Pelzer, 536 U.S. 730, 744 (2002).
74. See, e.g., Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 433-34 (2d Cir. 2009) ("[W]e may examine statutory or administrative provisions in conjunction with prevailing circuit or Supreme Court law to determine whether an individual had fair warning that his or her behavior would violate the victim's constitutional rights.")
75. Treats v. Morgan, 308 F.3d 868, 875 (8th Cir. 2002) ("Prison regulations governing the conduct of correctional officers are also relevant in determining whether an inmate's right was clearly established.").
76. Cortes-Reyes v. Salas-Quintana, 608 F.3d 41, 51-53 (1st Cir. 2010) (choosing to grant qualified immunity based on the second step of the analysis, the clearly-established-law requirement, in order to avoid interpreting local law)
77. Waeschle v. Dragovic, 576 F.3d 539, 551 (6th Cir. 2009) (certifying a question necessary to resolve the constitutional issue presented because "Michigan courts are better suited to answer the unsettled state-law aspect").
78. Kinney v. Weaver, 367 F.3d 337, 370 (5th Cir. 2004) (en banc) (finding that police officials could not rely on certain state policies as sources of clearly established law because the policies had been challenged as violating free speech).
79. Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam) (emphasis added).
80. Id. (citing Hope, 536 U.S. at 738).
81. Id. at 199, 201.
82. 129 S. Ct. 2633 (2009).
83. Id. at 2644 (Stevens, J., concurring in part and dissenting in part) (alteration in original) (internal quotation marks omitted).
84. Weise v. Casper, 131 S. Ct. 7, 7 (2010) (Ginsburg, J., dissenting from denial of certiorari).
85. Id. (quoting Weise v. Casper, 593 F.3d 1163, 1177 (10th Cir. 2010) (Holloway, J., dissenting)).
86. See, e.g., Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 256 (5th Cir. 2005) ("As this court has long held, the term clearly established does not necessarily refer to commanding precedent that is factually on all-fours with the case at bar, or that holds the very action in question unlawful." (internal quotation marks omitted))
87. Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003) ("[O]vercoming a qualified immunity defense does not require a plaintiff to show that either the particular conduct complained of or some materially indistinguishable conduct has previously been found unlawful.").
88. Vinyard v. Wilson, 311 F.3d 1340, 1350-52 (11th Cir. 2002).
89. Id. at 1350 (emphasis omitted).
90. Id. at 1351.
91. Id. at 1352.
92. See supra note 38 and accompanying text.
93. For example, in Vinyard, the court considered whether a police officer violated the plaintiff's Fourth Amendment right when he assaulted her during a drive to jail.
94. Vinyard, 311 F.3d at 1347-48.
95. The court reasoned, "Although the 'obvious clarity' standard is often difficult to meet, we conclude that the law in 1998 was clearly established ...."
96. Id. at 1355.
97. The court went on to state that "no factually particularized, preexisting case law was necessary for it to be very obvious to every objectively reasonable officer" that the defendant violated the plaintiff's clearly established right to be free of the excessive use of force.
98. See Morris v. Zefferi, 601 F.3d 805, 812 (8th Cir. 2010) ("The district court did not err in finding the unconstitutionality of [the defendant's] alleged conduct should have been obvious to [the defendant] based both on common sense and prior general case law.")
99. Treats v. Morgan, 308 F.3d 868, 875 (8th Cir. 2002) ("Prison regulations governing the conduct of correctional officers are also relevant in determining whether an inmate's right was clearly established.")
100. Mattos v. Agarano, 661 F.3d 433, 448 (9th Cir. 2011) (acknowledging the potential existence of an obvious case by asserting that "the violation was not so obvious that we can define clearly established law at a high level of generality" (internal quotation marks omitted))
101. Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir. 2004) (instructing courts in the Ninth Circuit to look to "whatever decisional law is available ... including decisions of state courts, other circuits, and district courts" (internal quotation marks omitted)).
102. See Whitfield v. Meléndez-Rivera, 431 F.3d 1, 8 (1st Cir. 2005) ("[T]he [Supreme] Court has also acknowledged that, in the obvious case, the standards announced in those decisions alone are sufficient to clearly establish the answer." (internal quotation marks omitted) (citing Brosseau v. Haugen, 543 U.S. 194, 199 (2004)))
103. Schneyder v. Smith, 653 F.3d 313, 330 (3d Cir. 2011) ("In extraordinary cases, a broad principle of law can clearly establish the rules governing a new set of circumstances if the wrongfulness of an official's action is so obvious ....")
104. Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 (4th Cir. 2004) (noting that a right may be "specifically adjudicated or [be] manifestly apparent from broader applications of the constitutional premise in question")
105. Sample v. Bailey, 409 F.3d 689, 699 (6th Cir. 2005) ("[T]he [Supreme] Court recognized that in an obvious case, [general] standards can clearly establish the answer, even without a body of relevant case law." (third alteration in original) (internal quotation marks omitted) (citing Brosseau, 543 U.S. at 199))
106. Estate of Escobedo v. Bender, 600 F.3d 770, 780 (7th Cir. 2010) ("The [Plaintiff] can demonstrate that the right was clearly established by presenting a closely analogous case that establishes that the Defendants' conduct was unconstitutional or by presenting evidence that the Defendant's [sic] conduct was so patently violative of the constitutional right that reasonable officials would know without guidance from a court.")
107. Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010) ("[I]n qualified immunity cases, except in the most obvious cases, broad, general propositions of law are insufficient to suggest clearly established law.").
108. See, e.g., Davis v. Billington, 775 F. Supp. 2d 23, 47-48 (D.D.C. 2011) (denying qualified immunity because the defendant was "aware of 'a general constitutional rule already identified in the decisional law'" (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)))
109. Navab-Safavi v. Broad. Bd. of Governors, 650 F. Supp. 2d 40, 63-64 (D.D.C. 2009) (denying qualified immunity because "a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question" (quoting Hope, 536 U.S. at 741))
110. Qutb v. Ramsey, 285 F. Supp. 2d 33, 50 (D.D.C. 2003) (recognizing in the Fourth Amendment context that "[qualified] immunity applies unless clearly established legal standards would have made it obvious to any reasonable officer that the level of force used was unlawful").
111. See Li v. Aponte, No. 05 Civ. 6237(NRB), 2008 WL 4308127, at *10 (S.D.N.Y. Sept. 16, 2008) ("[The defendant's] violation of the general standards articulated in Graham is sufficiently 'obvious' that [the plaintiff] need not show any more particularized precedent.").
112. Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 433-34 (2d Cir. 2010) (recognizing that the court "may examine statutory or administrative provisions in conjunction with prevailing circuit or Supreme Court law to determine whether an individual had fair warning that his or her behavior would violate the victim's constitutional rights" (citing Hope, 536 U.S. at 741-45)).
113. See, e.g., Reyes v. Bridgwater, 362 F. App'x 403, 408 (5th Cir. 2010) ("Indeed, unless the violation is 'obvious,' there must be relevant case law that 'squarely governs' the situation ...." (quoting Brosseau v. Haugen, 543 U.S. at 201))
114. Graves v. Zachary, 277 F. App'x 344, 349 (5th Cir. 2008) ("[T]he violation of [the plaintiff's] constitutional rights would have been 'obvious ... even without a body of relevant case law.' Under general precedents ..., [the defendant] should have known that his use of force was excessive." (first omission in original) (quoting Brosseau, 543 U.S. at 199))
115. Mitchell v. Cervantes, No. 3:10-CV-0030-K-BH, 2010 WL 4628003, at *1, *6-7 (N.D. Tex. Oct. 12, 2010) (denying defendant's motion for summary judgment on qualified immunity grounds because "it was clearly established that prison officials could not maliciously and sadistically apply force to cause harm to a prisoner" and citing Hope for the proposition that a constitutional violation may be obvious)
116. Strittmatter v. Briscoe, 504 F. Supp. 2d 169, 176 (E.D. Tex. 2007) ("While some violations are so obvious as to require no on-point precedent to give officials fair warning, the violation in this case is not that clear.").
117. While the Fifth Circuit flirted with the idea of recognizing an obvious case in one other case, it did not clearly articulate the concept and applied the traditional approach to defining the right.
118. Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc).
119. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citations omitted).
120. Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004) (citations omitted) (internal quotation marks omitted).
121. Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 457 (5th Cir. 2001).
122. The Second Circuit expressly introduced this third step as well, which may explain why it too has been reluctant to recognize the existence of an obvious case.
123. See Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007) ("[E]ven where the law is clearly established and the scope of an official's permissible conduct is clearly defined, the qualified immunity defense also protects an official if it was objectively reasonable for him at the time of the challenged action to believe his acts were lawful." (internal quotation marks omitted)).
124. See supra notes 56-61 and accompanying text (discussing the Eleventh Circuit's interpretation of Hope).
125. See supra notes 56-61 and accompanying text (explaining the emergence of the obviousclarity standard).
126. See generally Thomas E. O'Brien, Note, The Paradox of Qualified Immunity: How a Mechanical Application of the Objective Legal Reasonableness Test Can Undermine the Goal of Qualified Immunity, 82 TEXAS L. REV. 767 (2004) (arguing that the Fifth Circuit's application of "objective reasonableness" unnecessarily harms the interests of plaintiffs).
127. For example, in Hernandez, the Fifth Circuit considered whether the district court correctly denied qualified immunity to case workers who removed a child from his parents and placed him with a foster family despite multiple reports that the foster family had abused children in its care.
128. Hernandez ex rel. Hernandez v. Tex. Dep't of Protective & Regulatory Servs., 380 F.3d 872, 876-78 (5th Cir. 2004).
129. The Fifth Circuit first addressed the clearly-established-law issue and noted that neither party contested the district court's ruling that the child's "constitutional right to personal security and reasonably safe living conditions" was clearly established at the time.
130. Id. at 880.
131. However, the court still reversed, granting qualified immunity based solely on the objectivereasonableness inquiry and its determination that the defendants were not deliberately indifferent.
132. Id. at 884-85.
133. Thus, the Fifth Circuit treated the objective-reasonableness inquiry as an extra burden on the plaintiff, not as an alternative for proving clearly established law.
134. Hart v. Tex. Dep't of Criminal Justice, 106 F. App'x 244, 249-50 (5th Cir. 2004).
135. No appellate court opinions cite Hart, nor did any adopt its reasoning. Two district court opinions subsequently cited Hart, but one chose to rely on the old standard for clearly established law, essentially ignoring Hart's argument about Hope.
136. White v. McMillin, No. 3:09cv120- DPJ-FKB, 2010 WL 2683033, at *7-8 & n.6 (S.D. Miss. July 2, 2010) (stating that prior case law "still offers guidance" and granting qualified immunity). hile the other unpublished opinion echoed Hart's reasoning, it was later reversed by the Fifth Circuit, which found there was no violation of a constitutional right.
137. See Gordon v. Pettiford, No. 5:04cv224-DCB-JCS, 2007 WL 4375294, at *1 (S.D. Miss. Dec. 13, 2007) ("According to the Fifth Circuit, Hope requires a more general description of the constitutional right in question."), rev'd, 312 F. App'x 595 (5th Cir. 2009).
138. Some Fifth Circuit courts consider the concept of an "obvious risk" in Eighth Amendment deliberate-indifference claims.
139. E.g., Hernandez, 380 F.3d at 881
140. Wilkerson v. Stalder, 639 F. Supp. 2d 654, 670 (M.D. La. 2007). owever, in doing so, these courts transfer the idea of obviousness to the first step of the analysis (whether there was a violation of a constitutional right) and therefore do not give full effect to the concept of an obvious case by allowing for consideration of obviousness in the clearly-established-law determination.
141. Nelson v. Corr. Med. Servs., 583 F.3d 522, 526-27 (8th Cir. 2009) (en banc).
142. Id. at 525.
143. Id. at 526.
144. Id. at 525.
145. Id. at 528-34.
146. Id. at 536.
147. Id. at 534 (first, third, and fourth alterations in original) (citing Hope v. Pelzer, 536 U.S. 730, 745 (2002)).
148. Id. at 537 (Riley, J., concurring in part and dissenting in part).
149. Id. at 532 (majority opinion).
150. Id. at 538 (Riley, J., concurring in part and dissenting in part).
151. 429 U.S. 97 (1976).
152. See Nelson, 583 F.3d at 532 ("The general responsibilities of state officers with regard to an inmate's medical needs were ... clearly established ....").
153. Id. (quoting Hope v. Pelzer, 536 U.S. 730, 737-38 (2002)).
154. Id. at 539 (Riley, J., concurring in part and dissenting in part) ("Nelson was not being punished, was not made to suffer unnecessarily and wantonly, and was not deprived of basic necessities of life.").
155. Id. at 533 (majority opinion) (quoting Ark. Dep't of Corr. Admin. Reg. 403 § V (1992)).
156. Id. at 539 (Riley, J., concurring in part and dissenting in part).
157. Id. at 534 (majority opinion).
158. Id. 100.
159. Id. at 537 n.11 (Riley, J., concurring in part and dissenting in part) (emphasis omitted).
160. Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002).
161. This conclusion assumes the Eleventh Circuit would apply Vinyard's three-step framework. See supra notes 56-61 and accompanying text. Not all Eleventh Circuit judges embraced Vinyard's interpretation of Hope.
162. See Richard B. Golden & Joseph L. Hubbard, Jr., Section 1983 Qualified Immunity Defense: Hope's Legacy, Neither Clear nor Established, 29 AM. J. TRIAL ADVOC. 563, 589 (2006) (discussing the Eleventh Circuit's interpretation of Hope and how "[n]ot all judges on the Eleventh Circuit view Hope as creating a new category of notice").
163. But Vinyard has not been overturned or modified, and therefore it continues to provide controlling authority in the Eleventh Circuit.
164. See supra note 77 (discussing the limited application of Hope in Eighth Amendment claims).
165. Moreover, this would likely not be helpful for Nelson. Given the Fifth Circuit's high burden to prove deliberate indifference, it probably would hold, as the Eighth Circuit panel did, that the officer did not act with deliberate indifference.
166. Nelson v. Corr. Med. Servs., 533 F.3d 958, 963 (8th Cir. 2008), vacated, 583 F.3d 522 (8th Cir. 2009) (en banc)
167. see Hernandez ex rel. Hernandez v. Tex. Dep't of Protective & Regulatory Servs., 380 F.3d 872, 882 (5th Cir. 2004) ("We begin by emphasizing that our court has interpreted the test of deliberate indifference as a significantly high burden for plaintiffs to overcome.").
168. See supra note 42 and accompanying text (discussing the Fifth Circuit's approach to sources of clearly established law).
169. 305 F.3d 314 (5th Cir. 2002) (en banc) (per curiam).
170. See supra note 42 (analyzing McClendon).
171. 659 F.3d 359 (5th Cir. 2011) (en banc).
172. See id. at 373 ("[T]his case does not call on us to decide whether the Court's statements in Hope survive al-Kidd .... We leave for another day the question of whether and when a constitutional violation may be so 'obvious' that its illegality is clear from only a generalized statement of law.").
173. al-Kidd, 131 S. Ct. at 2079 (citing 18 U.S.C. § 3144).
174. al-Kidd v. Ashcroft, 580 F.3d 949, 952-53 (9th Cir. 2009), rev'd, 131 S. Ct. 2074 (2011).
175. Id. at 953.
176. Id. at 954.
177. Id. 114.
178. Id. at 973.
179. al-Kidd, 131 S. Ct. at 2085
180. see also id. at 2085 (Kennedy, J., concurring) ("The Court's holding is limited to the arguments presented by the parties and leaves unresolved whether the Government's use of the Material Witness Statute in this case was unlawful.").
181. Id. at 2084 (majority opinion) (internal citation omitted).
182. Id. at 2083 (emphasis added).
183. Id. at 2084 (emphasis added) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).
184. Id. at 2084-85.
185. al-Kidd v. Ashcroft, 580 F.3d 949, 972-73 (9th Cir. 2009) (citing United States v. Awadallah, 202 F. Supp. 2d 55, 77 n.28 (S.D.N.Y. 2002)), rev'd, 131 S. Ct. 2074 (2011).
186. al-Kidd, 131 S. Ct. at 2084 (quoting Wilson, 526 U.S. at 617).
187. See Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (accepting the "beyond debate" language and declaring accordingly that "Graham's general excessive force standard cannot always, alone, provide fair notice to every reasonable law enforcement officer that his or her conduct is unconstitutional").
188. See supra notes 107-08 and accompanying text.
189. See al-Kidd, 131 S. Ct. at 2086 (Kennedy, J., concurring) ("The fact that the Attorney General holds a high office in the Government must inform what law is clearly established for the purposes of this case.").
190. See id. at 2087 ("[N]ationwide security operations should not have to grind to a halt even when an appellate court finds those operations unconstitutional. The doctrine of qualified immunity does not so constrain national officeholders entrusted with urgent responsibilities.").
191. Id. at 2086 (Kennedy, J., concurring) ("They reasonably can anticipate when their conduct may give rise to liability for damages and so are expected to adjust their behavior in accordance with local precedent." (internal quotation marks omitted)).
192. E.g., Vance v. Rumsfeld, 653 F.3d 591, 611 (7th Cir. 2011), vacated, reh'g granted
193. Schneyder v. Smith, 653 F.3d 313, 331 (3d Cir. 2011).
194. The Seventh Circuit may revisit the issue when it rehears Vance en banc. However, based on the briefing, the issue may not arise because Vance implicates other national security issues, which could dispose of the claims without reaching the clearly-established-law requirement.
195. See Brief for Former Secretaries of Defense and Members of the Joint Chiefs of Staff as Amici Curiae Supporting Petitioner at 12-13, Vance, 653 F.3d 591 (Nos. 10-1687, 10-2442), 2011 WL 4542829, at *12 (arguing that potential liability for U.S. officials could compromise their decision-making abilities and thus harm national security).
196. 653 F.3d 313 (3d Cir. 2011).
197. Id. at 331.
198. Id. at 318.
199. Id. at 330-31.
200. Judge Dennis specially concurred in order to debate Judge Benavides's assertions about Hope.
201. See Morgan v. Swanson, 659 F.3d 359, 393 (5th Cir. 2011) (Dennis, J., concurring) ("I believe that certain official conduct may so obviously fall within the prohibition of a general or abstract rule of the Constitution that any reasonable official would have 'fair warning' that his actions are unconstitutional ....").
202. 555 U.S. 223, 231-32 (2009).
203. Id. at 236.
204. See The Supreme Court-Leading Cases, 123 HARV. L. REV. 153, 282 (2009) ("The provision of legal clarity is welcome and necessary .... Dismissing challenges early in litigation on the ground that a claimed right was not clearly established does little to help parties structure future conduct." (footnotes omitted)).
205. In fact, scholars have used empirical analysis to show that courts continue to address constitutional issues in appropriate cases.
206. See generally, e.g., Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 PEPP. L. REV. 667 (2009) (exploring the role of the qualified immunity doctrine on the promulgation of constitutional law holdings)
207. Ted Sampsell- Jones & Jenna Yauch, Measuring Pearson in the Circuits, 80 FORDHAM L. REV. 623 (2011) (analyzing how circuit courts apply the qualified immunity analysis set forth in Saucier v. Katz, 533 U.S. 194 (2001), after Pearson, 555 U.S. 223).
208. 131 S. Ct. 2020 (2011).
209. See id. at 2043 (Kennedy, J., dissenting) ("If today's decision proves to be more than an isolated anomaly, the Court might find it necessary to reconsider its special permission that the Courts of Appeals may issue unnecessary merits determinations in qualified immunity cases with binding precedential effect.").