A Flouting of Supreme Court Precedent: Dodging the Constitutional Issue in a Qualified Immunity Analysis

Jason R. Braswell

            The most fundamental rule of a common law system is that lower courts must follow the decisions of higher courts. Indeed, the Supreme Court, the summit of our common law system, has declared, “[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” In the situation examined by this Article, however, the lower federal courts have not unanimously adhered to Supreme Court precedent.

            Federal law, specifically 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents , provides a civil remedy for individuals who have had their constitutionally or legally protected rights violated by persons acting under color of law. A common defense raised by defendants in civil constitutional suits is qualified immunity, an affirmative defense that must be plead by a defendant. Qualified immunity is an affirmative defense that protects public officials acting in their official capacity from personal civil liability as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” There are, therefore, two essential elements for abrogation of qualified immunity: (1) the plaintiff must allege a violation of a constitutional or statutory right; and (2) that right must have been clearly established at the time of the alleged violation.

            There are two possible approaches to granting a qualified immunity claim. The first possible approach is to start by analyzing the underlying constitutional claim: does the plaintiff sufficiently allege the violation of a constitutionally or legally protected right? If the answer to this question is “yes,” only then does the analysis move to whether the right was clearly established at the time of the violation. This approach is mandated by the Supreme Court. The second possible approach is to pass on adjudicating the validity of the underlying claim and simply declare the right to not be clearly established. This is the approach followed by some circuit court panels, despite the Supreme Court’s mandate to the contrary.

            The first step in this Article must be the examination of applicable Supreme Court precedent. Once that is finished, this Article will examine circuit court opinions that proceeded in the manner proscribed by the Supreme Court. After looking at how the offending courts skirted around Supreme Court precedent, the Article examines the courts’ rationales for their decisions and levels criticisms at their reasoning. It then examines the practical effects of following the proscribed approach and guesses at some reasons courts cling to the proscribed approach. This Article concludes that, in light of cases following the proscribed approach, the Supreme Court should issue a clear mandate that courts, when faced with qualified immunity defenses, answer first whether plaintiffs successfully allege a violation of a protected right before moving on to analysis of whether that right was clearly established at the time of the alleged violation.

I. Supreme Court Precedent

            There are three Supreme Court cases that should be examined. The first of these is County of Sacramento v. Lewis.

A. County of Sacramento v. Lewis

            In Lewis, the parents of a motorcycle passenger killed in a high-speed police chase brought a § 1983 claim against the County of Sacramento, the Sacramento Sheriff’s Department, and a deputy involved in the chase, claiming that their son was deprived of his substantive due process right to life. The district court had dismissed the claim on a theory of qualified immunity, but the Supreme Court explained that the district court should have never reached a qualified immunity analysis. Instead, the district court should have first examined whether the plaintiffs’ allegations were sufficient to state a substantive due process and then should have concluded, as the Court did, that they were not. The Court further explained this in a footnote:

            As in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated. The District Court granted summary judgment to [defendant] on the basis of qualified immunity, assuming without deciding that a substantive due process violation took place but holding that the law was not clearly established in 1990 so as to justify imposition of § 1983 liability. We do not analyze this case in a similar fashion because, as we have held, the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) (“A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all,” and courts should not “assum[e], without deciding, this preliminary issue”).

            Justice STEVENS suggests [in his concurrence] that the rule of Siegert should not apply where, as here, the constitutional question presented “is both difficult and unresolved.” But the generally sound rule of avoiding determination of constitutional issues does not readily fit the situation presented here; when liability is claimed on the basis of a constitutional violation, even a finding of qualified immunity requires some determination about the state of constitutional law at the time the officer acted. What is more significant is that if the policy of avoidance were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or nonconstitutional. In practical terms, escape from uncertainty would require the issue to arise in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion in a criminal proceeding; in none of these instances would qualified immunity be available to block a determination of law. But these avenues would not necessarily be open, and therefore the better approach is to determine the right before determining whether it was previously established with clarity.

As happens so often with footnotes of Supreme Court opinions, this footnote has given rise to a prolific body of jurisprudence.

B. Conn v. Gabbert

            The Lewis footnote made its next Supreme Court appearance in Conn, where two prosecutors from the retrial of the infamous duo Lyle and Erik Menendez were sued for causing an attorney to be searched while his client gave grand jury testimony. The plaintiff attorney claimed that the search violated his Fourteenth Amendment right to practice his profession. The prosecutor defendants asserted a qualified immunity defense. Before beginning a qualified immunity analysis, the Court, citing the Lewis footnote, clearly stated:

In order to prevail in a § 1983 action for civil damages from a government official performing discretionary functions, the defense of qualified immunity that our cases have recognized requires that the official be shown to have violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Thus a court 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.

The Court then proceeded to do what it “must,” as it determined that the plaintiff did not successfully allege a violation of a constitutional right.

C. Wilson v. Layne

            The Lewis footnote surfaced in the Supreme Court again in Wilson. In Wilson, the Court was faced with a claim that police officers inviting members of the media to accompany them in executing an arrest warrant in a private home violated the plaintiffs’ Fourteenth Amendment rights. The defendants asserted a qualified immunity defense. Before analyzing the qualified immunity claim the Court stated:

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.” This order of procedure is designed to “spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.” Deciding the constitutional issue before addressing the qualified immunity question also promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public.

The Court then determined that the police officers’ alleged conduct did violate the plaintiffs’ Fourteenth Amendment rights, but also that those rights were not clearly established at the time of the alleged violation. The defendants were therefore granted qualified immunity.

II. Circuit Courts’ Treatment of Lewis, Conn, and Wilson

            While the majority of circuits have understood Lewis, Conn, and Wilson to mandate addressing the viability of the underlying constitutional claims before evaluating whether a right was clearly established, that understanding has not been unanimous. Instead, there is a sizable minority that has interpreted the aforementioned Supreme Court cases as a suggestion rather than a mandate. This Section first examines the way in which the minority panels have characterized the cases as a suggestion. After concluding that the minority panels mischaracterize the cases, this Section then examines the reasons the panels give for departing from the approach that the Supreme Court “suggests,” and finds their reasoning unconvincing.

A. Dodging Supreme Court Precedent

            The first hurdle to clear for a panel seeking to avoid the constitutional issue in a qualified immunity case is the Supreme Court precedent of Lewis, Conn, and Wilson . As to Lewis, a Second Circuit panel in Horne v. Coughlin wrote:

            Needless to say, if the Supreme Court’s discussion in [Lewis] is a holding that requires deciding on the claimed constitutional right in all cases, we are bound to follow it even if we think it unwise. However, the Supreme Court carefully avoided saying that the procedure should always be followed. To the contrary, it said that harm would result from “always” doing the contrary. The Court’s assertion that consideration of the constitutional question is “[n]ormally” the “better approach” implies that such consideration is not always the “better approach.” The Court’s cautious language no doubt reflects its awareness of the difficulties outlined above, and the fact that prolonged uncertainty, which was the Court’s primary motivating concern, is not always a threat. In many instances, the conditions that can lead to prolonged uncertainty through repeated reliance on qualified immunity are not present.

            Furthermore, it seems to us of great significance that the Court placed the tentatively worded suggestion in a footnote–scarcely the placement one would expect had the Court intended to command the lower courts to abandon a widespread practice and a generally recognized precept of avoiding unnecessary constitutional adjudication. In joining the Court’s opinion, Justice Breyer stated that the Court’s precedents “should not be read to deny lower courts the flexibility, in appropriate cases, to decide § 1983 claims on the basis of qualified immunity, and thereby avoid wrestling with constitutional issues that are either difficult or poorly presented.” [Lewis, 523 U.S. at 858-59 (Breyer, J., concurring).] The Eleventh Circuit in Santamorena v. Georgia Military College, 147 F.3d 1337, 1343-44 (11th Cir.1998), interpreted the Supreme Court’s words to mean that courts may, in appropriate cases, go directly to the qualified immunity issue. See also Stuto v. Fleishman, 164 F.3d 820, 825 (2d Cir.1999) (describing “preference” of [Lewis] as “nonmandatory”); Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir.1998) (describing “preference”). We share this understanding.

This panel’s feelings on Lewis have been echoed by panels in other circuits as well.

            The Horne court certainly has a point that the Court’s wording in Lewis is clearly nonmandatory–the Lewis footnote does seem more an endorsement than a mandate. But what about its assertion that it is “of great significance that the Court placed the tentatively worded suggestion in a footnote”? Here I disagree with the Horne court. For support of this, I point to footnote four in United States v. Carolene Products Co., a footnote that has been called by a Supreme Court Justice “the most celebrated footnote in constitutional law” and by another commentator “[t]he great and modern charter for ordering the relation between judges and other agencies of government[.]” Footnotes, while controversial in certain respects, certainly have their own important place in American legal writing. But perhaps my disagreement with the Horne court on this point belongs in its own footnote because it is ultimately irrelevant to my argument; it is Conn and Wilson, rather than Lewis, that is binding on lower courts.

            As to Conn and Wilson, the Horne court wrote:

            We recognize that since [Lewis], the Supreme Court has twice stated that, where the defendant raises qualified immunity as a defense, a court “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.” Wilson v. Layne, 526 U.S. 603, [609], 119 S.Ct. 1692, 1697, 143 L.Ed.2d 818 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, [290], 119 S.Ct. 1292, 1295, 143 L.Ed.2d 399 (1999)) (emphasis added). However, Wilson and Conn both relied on [Lewis], and neither purported to abandon the measured position adopted in that decision. The opinions in Wilson and Conn were both also joined by Justice Breyer, who expressly stated in [Lewis] that courts need not invariably decide the merits before reaching qualified immunity. And, as described below, both cases also provided sound reasons for reaching the merits. We do not understand Wilson and Conn, to have, intentionally but without explanation, abandoned the carefully modulated position taken in [Lewis] and adopted instead a rigid rule requiring federal courts to express advisory constitutional opinions in every case governed by qualified immunity.

            Our understanding of the Supreme Court’s guidance is that lower courts must be mindful of factors and circumstances that often justify addressing the merits of constitutional claims, even though qualified immunity would supply a sufficient ground for decision. On our understanding, the principal concern that justifies addressing the constitutional question, in a suit which in any event must be dismissed, is the likelihood that the question will escape federal court review over a lengthy period.

In a similar vein, a D.C. Circuit panel in Kalka v. Hawk wrote: “[T]he Supreme Court has itself warned against ‘dissect[ing] the sentences of the United States Reports as though they were the United States Code.’ So perhaps the statement about what the courts ‘must’ do describes only what the courts ordinarily should do.”

            First, I’ll address the contention that the Supreme Court did not “intentionally but without explanation abandon[] the carefully modulated position taken in [Lewis]” and replace it with a mandate that courts first decide the underlying constitutional issue before reaching the clearly established question. The Supreme Court did explain its transformation of Lewis’s endorsement into a mandate. It did so in Conn by citing to Seigert and Lewis, previous Supreme Court cases that discussed the preference for reaching the constitutional issue in detail; why should the Court have extensively rehashed an issue that it had previously discussed in depth? The same references to Siegert and Lewis are in Wilson, along with two sentences illustrating the benefits of reaching underlying constitutional issues. The mandate of Conn and Wilson cannot fairly be described as issued “without explanation.”

            The next issue that should be examined is the significance of Justice Breyer’s joining the Conn and Wilson majorities, in light of his Lewis concurrence. Justice Breyer’s Lewis concurrence was short and to the point:

I join the Court’s judgment and opinion. I write separately only to point out my agreement with Justice STEVENS that Siegert v. Gilley should not be read to deny lower courts the flexibility, in appropriate cases to decide 42 U.S.C. § 1983 claims on the basis of qualified immunity, and thereby avoid wrestling with constitutional issues that are either difficult or poorly presented.

Justice Breyer’s joining of the majorities in Conn and Wilson was not accompanied by any such disclaimer; in fact, Conn’s lone dissenter was Justice Stevens who dissented on grounds completely unrelated to the issued mandate, and the section of Wilson containing the mandate was agreed upon unanimously.

            The significance of Justice Breyer concurring in Lewis then joining the majority in Conn and Wilson is zero. Conn did not interpret Siegert as mandating that courts begin with an inquiry into the underlying constitutional issue; rather, it announced that mandate, then cited Siegert as support for that mandate. Similarly, Wilson did not interpret Siegert as a mandate; rather, it quoted Conn’s mandate and cited Siegert for one of its explained advantages to determining the underlying constitutional first. The Conn and Wilson courts, therefore, avoided the objection articulated by Justice Breyer in his Lewis concurrence, and garnered Justice Breyer’s support of the majority opinions.

            The Kalka court’s argument that the word “must” in Conn and Wilson should not be interpreted literally is similarly unavailing. The Supreme Court has written that “Congress clearly knows how to use mandatory language when it so desires.” There can be little doubt that the Court, too, knows how to use nonmandatory language when it so desires. It is simply impossible to believe that the Court twice used the mandatory word “must” when it actually meant “should usually.”

            Conn and Wilson bind courts, when faced with a qualified immunity defense, to consideration of the underlying constitutional issue before reaching the clearly established question. But because some panels in some circuits have disagreed with this, I will assume for the sake of argument that they are not bound. What then justifies departure from the Supreme Court’s endorsed approach?

B. Circuit Courts’ Reasons for Avoiding the Constitutional Issue

            The Horne court gave six reasons why it failed to address the underlying constitutional issue before moving to the question of whether the right was clearly established at the time of the alleged violation: (1) the constitutional issue did not pose a risk of repeatedly and indefinitely escaping federal court review; (2) the conduct at issue was not particularly egregious; (3) the constitutional question was not easy enough; (4) courts should avoid unnecessary adjudication of constitutional issues; (5) any ruling on the constitutional issue in a case where qualified immunity is granted would be dictum; and (6) defendants granted qualified immunity in cases where a constitutional violation was found to be successfully alleged but where it was also found that the right was not clearly established, would be unable to appeal the court’s decision that the constitutional right existed. The Kalka court agreed with some but not all of the Horne court’s reasons for avoiding a constitutional question, and gave us a seventh reason: (7) addressing the constitutional question creates a more expensive and time-consuming adjudication, which is at odds with qualified immunity’s protection from a trial. These seven reasons will be examined in turn to determine if they do indeed justify departure from the Lewis approach.

1. Escaping Federal Court Review

            The Horne court opined that, while it was not bound by Lewis, Conn, and Wilson, these cases instructed that “the principal concern that justifies addressing the constitutional question, in a suit which in any event must be dismissed, is the likelihood that the question will escape federal court review over a lengthy period.” The court then explained that this concern was not present in the case before it because the right asserted by Horne was “easily amenable to adjudication in a suit for injunctive relief by any adversely affected prisoner[.]”

            Qualified immunity is not a defense to a suit for injunctive relief, so as a practical matter Horne had an opportunity to get federal review of his constitutional claim: he could have sought injunctive relief in federal court. Instead, Horne had originally sought (and received) injunctive relief in state court. But is it fair that by bringing his suit for injunctive relief in state court, he became precluded from federal court review of his constitutional claim? After all, Horne was in effect penalized by not having his claim reviewed in federal court because his state court injunctive action was successful. There are many reasons why Horne may have chosen to seek injunctive relief in state court. Perhaps the state court docket moves faster, and Horne thought that was his quickest route to relief. Perhaps Horne’s attorney was more comfortable in state court. Perhaps Horne felt the state court would be more receptive to his claim. Regardless of the reason Horne chose to seek injunctive relief in state court, it hardly seems fair to penalize him for that choice and his subsequent success.

            In addition to not being fair, the Horne solution is also not an efficient one. Plaintiffs wishing to have their constitutional claims heard in federal court at any time in the future would be forced to bypass the state court system entirely, lest a state court grant them injunctive relief and ruin their federal claims for injunctive relief. All this would do is clog federal courts with litigation that could easily have been handled within the state court system.

            Furthermore, the Horne approach effectively guts Lewis, and subsequent Supreme Court precedent. If Lewis, Conn, and Wilson, are not read as mandates, they must at least be read as strong endorsements of hearing underlying constitutional claims. And reading these cases as strong endorsements necessarily implies that the approach that they endorse should be followed more times than not. If one follows the Horne approach, however, following the endorsed approach primarily in cases where there “is the likelihood that the question will escape federal court review over a lengthy period of time[,]” and if one classifies any claim that could have, at one time, sought injunctive relief as a case unlikely to escape federal court review, there are very few cases that will follow the endorsed approach. The only cases that would be reviewed under this criterion are cases where an alleged constitutional violation occurred only once or within a short time period, lasted only a very short time, and has no lasting effects that can be addressed by injunctive relief. This must be a very small percentage of alleged constitutional violations that rise to the level where one would seek civil penalties.

2. Egregious Conduct

            The Horne court also felt that Horne’s alleged constitutional violation was not egregious enough to merit adjudication. It wrote:

Another factor that may favor reaching the merits is the egregiousness of the conduct that is challenged. When a constitutional violation is especially outrageous, but the right is not yet clearly established, the public interest in clarifying the law is much greater than in cases where important interests weigh on both sides of the balance.

            Egregiousness is certainly a factor that favors, and should favor, reaching the merits, but the problem with using egregiousness as a factor is identical to one of the problems with using evading federal review as a factor. If egregiousness is required for a constitutional claim to be reviewed, the Supreme Court’s preferred approach becomes the exception rather than the rule. After all, egregious cases are, by definition, a very small subset of cases. Use of the Supreme Court’s preferred approach should not be limited to such a small subset of adjudicated cases.

3. Easy Constitutional Questions

            The Horne court also named ease of the constitutional question as a factor in determining whether the question should be answered, explaining “[f]or a judiciary that is already heavily burdened with cases it must decide, offering an unnecessary but simple solution to an easy problem is better justified than undertaking unnecessarily to untangle a difficult, complex issue.” Certainly, the Horne court is right that courts should rule on easy constitutional issues, but it is wrong that courts should shy away from the tough ones. The Supreme Court advised that ruling on constitutional issues in qualified immunity cases “promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public.” Ruling on easy constitutional issues does little to promote this desired clarity. Ruling on hard constitutional issues, on the other hand, does a lot to promote the desired clarity.

4. Avoiding Unnecessary Adjudication of Constitutional Issues

            Another reason the Horne court gave for avoiding the constitutional question was the general adjudicative principle of avoiding unnecessary constitutional rulings. It wrote:

[T]he Supreme Court has for generations warned against reaching out to adjudicate constitutional matters unnecessarily. It is a “fundamental and longstanding principle of judicial restraint [that] courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Under our system of constitutional government, we generally prefer some prolongation of uncertainty over unnecessary, hasty resolution of constitutional questions.

            Avoiding unnecessary adjudication of constitutional issues is certainly a well-entrenched and wise jurisprudential policy, but that “fundamental and longstanding principle” was readily disregarded by the Supreme Court in Lewis, Conn, and Wilson. Furthermore, when a court skips the constitutional question in favor of ruling that the right wasn’t clearly established at the time of the alleged violation, is it really avoiding making a constitutional determination? The Supreme Court articulated best the answer to this question: “when liability is claimed on the basis of a constitutional violation, even a finding of qualified immunity requires some determination about the state of constitutional law at the time the officer acted.” There is no simply way to making avoid some sort of constitutional determination in a suit alleging the violation of a constitutional right.

5. Constitutional Rulings in Cases Where Qualified Immunity Was Granted Would Be Dicta

            Another rationale that the Horne court gave for skipping over the question of whether Horne successfully alleged the violation of a constitutionally protected right was that any ruling as to whether he did or did not would be dictum in light of the court’s conclusion that the defendants were protected by qualified immunity. The Horne court wrote:

            [W]here there is qualified immunity, a court’s assertion that a constitutional right exists would be pure dictum. It would play no role in supporting the action taken by the court–the dismissal of the case by reason of qualified immunity. Such dictum would, of course, not be binding in future cases.

            As is often the case with dictum, our declaration of a new constitutional right would run a high risk of error. Judges risk being insufficiently thoughtful and cautious in uttering pronouncements that play no role in their adjudication. Furthermore, parties may do an inadequate job briefing and presenting an issue that predictably will have no effect on the outcome of the case. A governmental official who knows the suit against him must be dismissed by reason of qualified immunity because the asserted right was not clearly established may have little incentive to contest vigorously the constitutional issue. This is all the more likely where the challenged conduct occurs in a nonrecurring fact pattern, so that the claimed right is not likely to be asserted again against the same defendant. A court may therefore be swayed by the plaintiff’s forceful assertion of a constitutional right where a more vigorous and thoroughly researched defense might have showed that the claim is unwarranted. Adjudication in such a case is unreliable because the presentation lacks the “concrete adverseness . . . upon which the court so largely depends for illumination of difficult constitutional questions.”

The Horne court is wrong here, though: these “assertion[s] that a constitutional right exists” would not be dicta.

            The first step is to define “dictum.” Judge Posner defined “dictum” as “a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding–that, being peripheral, may not have received the full and careful consideration of the court that uttered it.” Judge Posner’s definition works well for us here. Its first prong, critical to the analytical foundations of the holding, fits well with the way “dictum” is most commonly used within the judiciary, the way the Horne court likely understood it. Its second prong, likely not fully considered because it is peripheral, fits well with the concern expressed by the Horne court that constitutional determinations in qualified immunity grants may be unusually susceptible to error. I will consider these prongs in turn.

a. Critical to the Analytical Foundations of the Holding

            “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” But qualified immunity is an affirmative defense, one which a court does not theoretically reach until it has decided the viability of the underlying claim. Thus, determining whether an official is protected by qualified immunity is a two-step approach: (1) did the official violate a right?; and (2) was that right clearly established? When courts skip the first question, the existence of the right, and answer only the second question, they must therefore assume arguendo that the right exists. The consequences of this are explained by John Greabe:

The fact that a court conducting a sequential inquiry . . . can assume arguendo the threshold ruling necessary to its continuing down the decisional chain does not mean that the court has to indulge such an assumption. . . . Indeed, given that the dispositive ruling . . . itself would have been unnecessary had the antecedent ruling . . . been resolved differently, a legal construct that would require courts to assume arguendo positive answers to all antecedent questions would perversely give binding effect only to final, dependent rulings–rulings that might themselves have been truly unnecessary had the court actually proceeded in sequence.

            . . . Qualified immunity is an affirmative defense, and courts need not and (theoretically) do not reach affirmative defenses unless and until the plaintiff has stated a cognizable legal claim. Put another way, the qualified immunity inquiry is meaningful only in the presence of a viable constitutional claim, thus making the existence vel non of such a claim “an essential ingredient in the process by which the court decides” whether a defendant is protected by qualified immunity. A ruling on the pleaded, threshold issue is therefore not dictum.

            A simple hypothetical will illustrate this point. Assume that P sues D, a state official, in a § 1983 action seeking monetary damages, alleging that D violated P’s Fourth Amendment rights. D asserts a qualified immunity defense to P’s claims. Our hypothetical court follows Lewis and rules that P has successfully alleged a violation of one of her Fourth Amendment rights, but that right was not clearly established at the time of the alleged violation; therefore, D enjoys qualified immunity. Our hypothetical court would have never reached the clearly established question had it not concluded that P successfully alleged a constitutional violation. Removing the constitutional violation analysis from its opinion would, therefore, “seriously impair the analytical foundations of the holding.” The court’s ruling that P successfully alleged a constitutional violation would fall outside Judge Posner’s definition of “dictum.”

b. Considered with Sufficient Care

            The second prong of Judge Posner’s “dictum” definition echoes the concerns of the Horne court that the underlying constitutional issues in qualified immunity cases may not be presented and considered with enough care to result in reliable rulings. But the Horne court’s concerns as to the care given to these constitutional determinations are not valid. Both the plaintiffs and the defendants in these suits have plenty of motivation to thoroughly prepare and frame the constitutional issues and to fight for disposition of the constitutional issues in a way favorable to their side. Additionally, should courts consider the constitutional issue, they have plenty of motivation to get it right. This all stems from the fact that the constitutional issues in these cases are not peripheral to the plaintiffs’ claims, as expressed in Judge Posner’s “dictum” definition, but instead are the heart of the plaintiffs’ claims.

            We know that plaintiffs are motivated to fully prepare and argue the constitutional question. Without succeeding on the constitutional question, plaintiffs cannot win their suits. But do defendants share that motivation?

            There are two reasons why defendants share that motivation. First, winning the constitutional issue wins their case, and, alternatively, convincing judges that it is a tough decision wins their case. While it is true that defendants could lose the constitutional issue and still win the case on the grounds that the right was not clearly established, it seems very tenuous to assume that defendants will roll over on the constitutional question and focus their meaningful efforts solely on the “clearly established” question. Besides, the two inquiries really collapse into one. The first step is to determine if the asserted right exists. In the process of answering that question, you find the answer to the “clearly established” question. If the defendant can convince the court to decide the constitutional issue in his favor, he wins; if the defendant cannot convince the court to decide the constitutional issue in his favor but can convince the judge that it is a very close and difficult question, he still wins.

            Second, defendants have plenty of motivation to oppose the granting of rights to plaintiffs, even if the defendants are sure they are going to win on the “clearly established” question. If a defendant loses on the constitutional question but wins on the “clearly established” question, he has used his “get out of jail free card.” The next time an analogous violation is alleged, the defendant will be civilly liable. The defendant, therefore, has plenty of incentive to challenge the grant of rights, regardless of the final disposition of the case. The Horne court articulated this when it expressed concern that defendants who prevailed on the “clearly established” question but lost on the constitutional question would be unable to appeal the courts’ constitutional determinations.

            Now we come to the courts’ consideration of the constitutional claims. We have already determined that plaintiffs and defendants would be motivated to present and argue the constitutional issues to the best of their abilities. The court would share this motivation; the constitutional question is, after all, the foundation of the suit. There is no reason why courts would decide this issue with any less care than any other constitutional issue, the issue being integral, rather than peripheral, to the suits.

c. What If It Is Dicta?

            I have argued above that constitutional rulings in these cases are not dicta, but I will readily admit that their classification as “non-dicta” may depend heavily upon the definition of “dictum” that one chooses to use. I will therefore allow for the possibility that a court may interpret these constitutional rulings as dicta, but what would be the consequences of this interpretation? What if the Horne court is right, and any constitutional determination by a court dismissing a suit on qualified immunity is dictum because, using an ultra-strict definition of “dictum,” the constitutional determination is nonessential to the case’s outcome?

            We should not jump to the conclusion that “dictum” is a necessarily pejorative label. For while dicta is not binding upon a court, it may be followed by a court if it is sufficiently persuasive. When a lower court is deciding an issue they are obligated, at least to some extent, to rule on the issue the same way a higher court would rule. This requires some prognostication on the part of the lower courts, and dicta can prove an excellent tool to aid in this prognostication.

            It has been observed that “there exists a substantial body of case law, rising almost to the level of a general tradition, in which adjudication, and constitutional adjudication in particular, functions more as a vehicle for the pronouncement of norms than for the resolution of particular disputes.” Constitutional determinations of the type disfavored by the Horne court may be dicta using certain definitions of “dictum,” but if they are, they are very important dicta, dicta that should be favored. Constitutional determinations in qualified immunity cases, while arguably unessential to the outcome of the cases, serve an important role in constitutional jurisprudence.

6. Immunized Defendants’ Inability to Appeal the Existence of the Constitutional Right

            As the Horne court noted, if a court found that a constitutional right existed but was not clearly established at the time of the alleged violation and that the defendant was thereby entitled to qualified immunity, the defendant would be unable to appeal the court’s determination that the right existed. The court explained:

District courts and courts of appeals [ruling that a constitutional right existed but was not clearly established at the time of the alleged violation] will declare new constitutional rights as a part of a judgment in favor of the government defendants. The government defendants, as the prevailing parties, will have no opportunity to appeal for review of the newly declared constitutional right in the higher courts. 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 lower court [sic] without the defendants having the right to appellate review. Only by defying the views of the lower court, adhering to practices that have been declared illegal, and thus inviting new suits will the state officials be able to ensure appellate review of lower court declarations of the unconstitutionality of official conduct. Thus, officials may often be placed in the untenable position of complying with the lower court’s advisory dictum without opportunity to seek appellate review, or appearing to defy the lower court’s assertion and thus exposing themselves to a risk of punitive damages.

            The Horne majority is correct that there are situations under the Lewis approach where a defendant could not get review of the plaintiff’s underlying constitutional claim. The same danger exists in the Horne approach, however; the only difference is that in the Horne approach it is the plaintiff rather than the defendant who may be unable to get review of the constitutional claim. Perhaps the same policy concerns that justify the defense of qualified immunity require that citizen plaintiffs rather than official defendants be precluded from review of these constitutional claims, but I do not think that is the case. Official defendants already have the deck stacked in their favor due to the qualified immunity defense. There seems to be no justification for stacking the deck further. Instead, this factor is a wash. Because under either approach one side will be hampered in seeking review of the constitutional claim, this factor should not play into a court’s decision of which approach to take.

7. More Expensive and Time-Consuming Adjudications

            The Kalka court gave us our final purported reason for avoiding the constitutional issue in a qualified immunity case: addressing the constitutional issue would create a more expensive and time-consuming adjudication, which is at odds with qualified immunity’s protection from a trial. The Kalka court wrote:

[The constitutional issue in this case] could not be decided in the abstract. Not only discovery but also a trial may be necessary to resolve the question. Yet the qualified immunity “entitlement is an immunity from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to trial.” In extending qualified immunity to public officers, the Court sought to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” The goal then is to relieve the “defendant who rightly claims qualified immunity [from] engag[ing] in expensive and time consuming preparation to defend the suit on its merits.”

            It thus makes no sense to say that in order to determine whether one is entitled to immunity from trial we must first hold the trial. Yet that is what we would be saying if we proceeded directly to the [constitutional] question . . . .

            The Kalka court’s reliance on this factor is wrong because it erroneously assumes that defendants can ignore the constitutional issues in cases if courts are free to pass on them. There are two reasons why this assumption is erroneous. First, to succeed in a qualified immunity defense, a defendant must address the underlying constitutional issue on at least some level. A defendant can win its case in two ways: (1) by convincing a court that the plaintiff has not successfully alleged a constitutional violation, or (2) by convincing a court that the constitutional right that a plaintiff alleges was violated was not clearly established at the time of the alleged violations. Both routes to victory require a defendant to delve into the constitutional right allegedly violated.

            Second, even if a court is free to pass on a constitutional issue when certain factors are present, ruling on the constitutional issue is still endorsed by the Supreme Court as the “better approach.” Only a defendant with nerves of steel (and incompetent legal counsel) will bet that a court will depart from the Supreme Court’s endorsed/mandated approach, and only that defendant will fail to fully prepare the constitutional issue when asserting a qualified immunity defense.

            In sum, whether or not a court is free to pass the underlying constitutional issue in a qualified immunity defense, a defendant must address that constitutional issue. Departure from the “better approach” therefore does not spare a defendant any time or expense.

III. The Harm of Passing on the Constitutional Question

            I have shown that some circuit courts are violating binding Supreme Court precedent, and I have shown why these decisions are wrong, notwithstanding that precedent. This all leads to another question, however: what is the practical harm of the approach taken by these courts? Is this an academic argument of no real consequence, or is there a real harm that occurs when courts break with Lewis, Conn, and Wilson? Are there real policy reasons that support the Lewis approach?

            The immediate ramifications of breaking from the Lewis approach are clear: courts will address claims of violations of novel constitutional rights less frequently. One commentator has remarked:

I am not arguing that, in a general jurisprudential sense, merits bypasses in civil rights damages actions are preventing new constitutional law from developing. The expansion rate of the United States Reports, the Federal Reporter (Third), and the Federal Supplement (all of which are chock full of constitutional rulings) itself would be sufficient to rebut any such claim.

I disagree with these remarks, however. Constitutional law is certainly developing; there can be no argument about that. But the constitutional developments are skewed toward rights whose violators are not shielded by qualified immunity. Particularly stifled are rights such as prisoners’ rights which can almost never be violated by anyone other than public officials.

            Qualified immunity does not make an official’s actions right; it merely shields the official from civil liability. Ideally, qualified immunity would work as a one-time use “get out of jail free card”: the first time that a deprivation of a “new” constitutional right is alleged, the officer is let off the hook, but if that officer, or any other officer, commits a subsequent violation, he must answer for it. Departing from the Lewis approach, skipping the constitutional question, transforms the “get out of jail free” card from one-time use to infinite use. The official will escape liability until the right is adjudicated in a suit to which qualified immunity is not a defense. Departing from the Lewis approach makes the protection of qualified immunity much stronger than it was ever intended to be and much stronger than it should be.

IV. Why Are Courts Dodging the Constitutional Issues?

            One question remains: why are some courts dodging the underlying constitutional issues in qualified immunity cases, despite Supreme Court precedent mandating, or at least strongly endorsing, reaching those issues?

            Upon first glance, one may be inclined to view the offending courts’ actions as a product of courts’ general hostility toward civil rights litigation. This explanation seems to not fit here, though, because there is really no reason to believe that passing on a constitutional issue would stem the flow of § 1983 litigation into the federal courts. Instead, it seems more likely that the courts are being motivated by a desire to retain judicial flexibility in deciding cases where qualified immunity is asserted as a defense.

            The constitutional issues that come before courts in cases where they grant qualified immunity to defendants are often novel and/or difficult issues. This is due largely to the fact that often when qualified immunity is granted, the rights allegedly violated are not clearly established. In such cases, it may be very difficult for judges on a panel to decide and agree upon the underlying constitutional issues, but it is almost always much easier for the judges to agree that constitutional rights were not clearly established at the time of the alleged violation. The judicial flexibility that being free to pass on the constitutional creates gives judges an easy solution to any impasses created by difficult constitutional issues.

            There is certainly nothing wrong with judicial flexibility. If bypassing on constitutional issues, the route that creates this judicial flexibility, was without harm, that approach would be not only acceptable, but preferable. But that is not the case; instead, there is real harm that results from that approach. In light of this real harm, courts must be willing to give up some judicial flexibility in order to properly fulfill their role as cultivators of our common law.

Conclusion

            I have explained why Lewis, Conn, and Wilson require lower courts facing a qualified immunity defense to first rule on the viability of the underlying constitutional claim before addressing whether the right allegedly violated was clearly established at the time of the alleged violation. I have demonstrated why the factors enumerated by courts breaking from Lewis’s “better approach” do not justify skipping over the underlying constitutional question presented by a plaintiff’s claim. I have also demonstrated the practical harm that results from departing from the Lewis approach. It is clear that some lower courts proceeding in a manner contrary to Supreme Court precedent and that there is no convincing justification for this. In light of this flouting of Supreme Court precedent and the harm that it is causing, the Supreme Court should once more issue a clear and unequivocal mandate that courts follow the approach set forth in Lewis, that they decide the underlying constitutional issues before moving to a clearly established analysis.

Appendix A:

Circuit Courts’ Treatment of County of Sacrament v. Lewis’s “Better Approach” to Granting Qualified Immunity