Picking up on Peter’s recent posting on Pearson v. Callahan, decided January 29, 2009, Pearson represents a major development in the area of addressing qualified immunity claims by law enforcement officials sued under 42 U.S.C. § 1983 and its federal counterpart, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The decision marks a distinct deviation from Saucier v. Katz, 533 U.S. 194 (2001), the decision that mandated the bright-line two part test for assessing qualified immunity claims: (1) whether the facts alleged make out a violation of a constitutional right; and (2) whether such right was “clearly established.” Reflecting a relatively rare discussion of stare decisis, Justice Alito, writing for a unanimous Court, discussed how Saucier had come under attack for often causing “substantial expenditure of scarce judicial resources on difficult [constitutional] questions that have no effect on the outcome of the case.” He continued: “There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” The Court in Pearson thus allowed, but did not require, that lower courts can jump to the second “clearly established” prong and grant qualified immunity on that basis without having to needlessly engage in what could be a difficult assessment of the first prong.
I also would like to note that our Tenth Circuit should not be faulted for following the law and letting the Supremes fix their own precedent. The Tenth Circuit did its job and the Supreme Court did its job. The Supreme Court took a positive step in the development of an area of law that uses not an insignificant amount of federal judicial resources.