Saucier Than Usual, the Supreme Court Tackles a Precedent

In granting review in a new case on police immunity today, the Supreme Court took the rare step of announcing its intention to examine whether one of its relatively recent precedents, Saucier v. Katz, "should be overruled." The unusual announcement came in the form of an order directing the parties in the new case, Pearson v. Callahan, to brief that issue in addition to the questions presented by the case.

The 2001 decision in Saucier established a two-step test for deciding whether police deserve immunity from lawsuits claiming they violated someone's constitutional rights. First, it must be established that the claimant's constitutional rights were violated. If so, the next question is whether that right was clearly established — in other words, well-enough known that a reasonable officer should have known what it was.

In Pearson v. Callahan, the case granted Monday, none of the parties questioned that precedent, though it led to a lower court decision against the police. The case stems from a police raid in Filmore, Utah on Afton Callahan's home in 2002. After an informant entered the home and bought illegal drugs, police raided the house without a warrant. Applying the Saucier test, the U.S. Court of Appeals for the 10th Circuit found the raid was unconstitutional, and the rights violated were clearly established.

Peter Stirba of Stirba & Associates in Salt Lake City, the lawyer for the police, confirms that neither he nor any lower court opinions urged the Court to reconsider Saucier. "All the parties considered the law as settled," said Stirba, who would not say if he was surprised at the Court's action. "If this issue is of interest to the Court, we will address it."

Comments

[Alan Viard]

I am writing to clarify which aspect of the two-part inquiry the Court has decided to reconsider in Pearson. The relevant aspect is the order in which federal courts should answer the two questions. Under Saucier, the question of whether a constitutional right has been violated must be answered first; if a right has been violated, the next question is whether that right was clearly established.

Some observers have suggested that it may often be useful to reverse the ordering. If the law in a particular area is unsettled, a federal court may be able to readily determine that, whether or not any violated right exists, it was certainly not clearly established. If so, it would seem convenient for the court to grant summary judgment to the defendants on that ground without delving into the difficult question (ultimately irrelevant for the case at hand) of whether any such right actually exists. But, Saucier prohibits the federal courts from proceeding in this order. In Pearson, the Court will consider whether to overturn Saucier and remove that prohibition.