Nahmod Law

In Pearson v. Callahan, 129 S. Ct. 808 (2009), the Supreme Court modified its earlier approach to the order in which the two parts of the qualified immunity test are to be addressed by district courts.

Background

The qualified immunity test currently has two parts. The first part focuses on whether the plaintiff states a cause of action. The second part focuses on whether, at the time of the allegedly unconstitutional conduct, the defendant violated clearly established law. About a decade ago the Court instructed that the inquiry into whether the section 1983 plaintiff states a cause of action must always be made before the inquiry into whether the defendant violated clearly settled law (a mandatory “order of battle” ). The primary rationale of this mandatory approach was to promote the development of clearly established constitutional law. However, a major downside–one that bothered many district courts–was the elimination of any flexibility to avoid difficult constitutional issues by ruling in favor of the defendant on the ground that the defendant did not violate clearly established law. Recently, however, several Justices, including Justices Breyer and Scalia, began to express doubts about this mandatory order of battle.

The Decision

The Supreme Court finally resolved the matter in Pearson and held that the order of battle procedure was no longer to be regarded as an inflexible requirement. Pearson was a Tenth  Circuit case involving an alleged violation of the Fourth Amendment and “consent once removed.” In this case, where the defendant police officers conducted a raid in March 2002 on the plaintiff’s home without a warrant on the basis of a confidential informant’s invitation to the defendants to enter, the Tenth Circuit found that they had violated the Fourth Amendment and were not entitled to qualified immunity. The court reasoned that the Supreme Court and its circuit had clearly established that there were only two exceptions to the warrant requirement for entry into a home, consent and exigent circumstances, neither of which was present here. On review, the Supreme Court asked the parties to argue the question of whether the mandatory “order of battle” should be modified. Read the rest of this entry »