Nahmod Law

Qualified Immunity “Order of Battle” Modified

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.


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.

In a unanimous opinion by Justice Alito, the Supreme Court reversed and ultimately ruled that the defendants were protected by qualified immunity. It pointed out that when the challenged conduct occurred in 2002, the “consent-once-removed” doctrine had been accepted by three circuit courts and two State Supreme Courts beginning in the early 1980’s. “The officers here were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on ‘consent-once-removed’ entries.” Qualified immunity was particularly appropriate in a case such as this where the difference in circuit courts’ views on the “consent-once-removed” doctrine was created by the very court that had ruled against the defendants and subjected them to personal damages liability.

Rationale for Modifying the Order of Battle

As to the mandatory procedure, the Court initially determined that stare decisis did not preclude revisiting and revising that procedure. It then proceeded to articulate the benefits of a mandatory procedure, which included the development of constitutional doctrine, especially in situations where the issues did not frequently arise in cases in which a qualified immunity defense was unavailable.

However, the Court next found that those benefits were all too often significantly outweighed by the following costs: (1) where it was plain that a constitutional right was not clearly established but difficult to decide whether there was such a right, scarce judicial resources as well as the parties’ resources were unnecessarily expended; (2) often constitutional rights issues were so fact-bound that judicial decisions provided little future guidance; (3) those constitutional decisions based on uncertain interpretations of state law were not very useful; (4) the precise factual basis of a claim was frequently difficult to discern where qualified immunity was raised at the pleading stage; (5) the was a risk of bad decision-making because briefing on the constitutional merits was often inadequate and also because, where there was obviously no clearly established law accompanied by a difficult constitutional issue on the merits, a judge might not devote enough attention to the merits as would be the case in other circumstances; (6) strictly adhering to the mandatory procedure might make it hard for affected parties to obtain appellate review of constitutional decisions in cases where the defendant was found to have committed a constitutional violation but did not violate clearly settled law and was thus the “winning party”; and (7) the order of battle procedure was inconsistent with the general principle of constitutional avoidance.

For all of these reasons, the Court rejected the mandatory procedure. However, it went on to emphasize that a non-mandatory procedure of this kind was often valuable, depending on the case: “Our decision does not prevent the lower courts from following the [order of battle] procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases.”


Pearson is self-explanatory and sound. Over the past twenty years the Supreme Court has repeatedly tinkered with qualified immunity–typically in favor of defendants–and has thereby created much work for district courts, the circuits and litigants. Eliminating the subjective part of the test in order to make qualified immunity entirely objective in nature, so that district courts decide qualified immunity before discovery, is one example. Another is making denials of qualified immunity immediately appealable to the circuits on issues of law. The mandatory order of battle similarly  created more work for district courts, courts of appeals and litigants, work on the constitutional merits that could often have been avoided had the second part of the qualified immunity been addressed first. In short, Pearson restored a little common sense and flexibility to qualified immunity procedure.

Written by snahmod

September 17, 2009 at 10:42 pm

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