Opinion Recap: Pearson v Callahan
Los Angeles Akin Gump associate Scott Street discusses Wednesday’s decision in Pearson v. Callahan (No. 07-751).
On Wednesday, in an opinion authored by Justice Alito, the Supreme Court unanimously reversed the Tenth Circuit's decision in Pearson v. Callahan and discarded the rigid two-step process for analyzing a qualified immunity defense that it had developed in Saucier v. Katz. Under Saucier, lower courts had to determine, first, whether a constitutional violation had occurred in the case and then decide, second, whether the defendant's actions violated clearly established federal law. If the court answered either question in the negative, then qualified immunity shielded the defendant from liability.
To recap, in Pearson, an informant had identified Afton Callahan as a local drug dealer; law enforcement officers then sent him to visit Callahan to both ensure that Callahan had drugs and arrange a drug buy. The informant then came back to the officers. At that point, the officers almost certainly had probable cause to arrest Callahan and search his home, and they could have sought a warrant to do so. Instead, they waited two hours, provided the informant with a marked bill, wired him, and sent him back to Callahan's home to complete the purchase. When the informant completed the sale, he signaled the officers, who entered the home without a warrant and arrested Callahan.
Callahan was convicted of unlawful possession and distribution of methamphetamine, but the Utah Court of Appeals vacated that conviction. Callahan then sued the law enforcement officers under 42 U.S.C. § 1983 for violating his Fourth Amendment rights. The district court granted the officers' motion for summary judgment because it found, based on the "consent once-removed" doctrine that several courts had recognized, that the officers did not violate clearly established federal law in entering Callahan's home. The Tenth Circuit reversed that decision. Following the two-step Saucier process, the Tenth Circuit found, first, that the officers' conduct violated Callahan's Fourth Amendment rights (rejecting the "consent once-removed" doctrine) and, second, that the officers' conduct violated Callahan's clearly established right "to be free in one's home from unreasonable searches and seizures." Therefore, the Tenth Circuit concluded, qualified immunity did not bar Callahan's claim.
The Supreme Court's Decision on the Merits: Qualified Immunity Bars Callahan's Claim
The Supreme Court disagreed with that conclusion. It noted that "[w]hen the entry at issue here occurred in 2002, the "consent-once-removed' doctrine had gained acceptance in the lower courts." The Court held that the officers "were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on "consent-once-removed' entries."
And, although it did not say so explicitly, the Court rejected the Tenth Circuit's incredibly broad definition of the "law" that must be clearly established for purposes of the qualified immunity analysis. The Tenth Circuit described clearly established federal law here as the "right to be free in one's home from unreasonable searches and seizures." The Supreme Court, on the other hand, focused on the objective legal reasonableness of the officer's actions in light of the "consent-once-removed" doctrine.
The Court Rejects the Rigid Saucier Two-Step
The Court's decision on the merits of the qualified immunity defense was almost an afterthought. It disposed of that aspect of the case in less than two pages, while it spent nearly 13 pages explaining its decision to abandon the Saucier process.
The Court recognized that the Saucier process "is often beneficial" to help develop constitutional law. However, Justice Alito noted the price that it carries, including: the disdain that lower court judges have for the procedure; the "substantial expenditure of scarce judicial resources" that it involves, even when the difficult constitutional questions may have no bearing on the resolution of the case; the resulting waste of the parties' resources; and the risk of bad decision making that the process engenders, because qualified immunity is raised at the pleading stage of litigation, before discovery, where the factual basis of the plaintiff's claim may be unclear and the briefing inadequate. In addition, Justice Alito observed that Saucier "departs from the general rule of constitutional avoidance" and varies from the Court's usual reluctance to "mandate the order of decision that the lower courts must follow."
The Court emphasized that it was not telling lower courts to always address the "clearly established" prong of the qualified immunity defense first. It clarified that "[o]ur decision does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases."
But What Happened to the Fourth Amendment Merits Here?
Of course, anybody who has followed this case before today must wonder what happened to the Fourth Amendment aspect of Pearson. After all, that was the issue on which the parties sought "“ and the Court granted "“ certiorari. Much of the oral argument in the case focused on the Fourth Amendment merits, specifically whether the Court would recognize the consent-once-removed doctrine. That question seemed even more compelling because the Court has narrowed the consent exception to the Fourth Amendment's warrant requirement (see Georgia v. Randolph). Indeed, it consumed the majority of the oral argument because, while the justices seemed to agree that Saucier should be abandoned, they disagreed sharply on the Fourth Amendment question.
But the Court did not say a word about the Fourth Amendment merits, leaving us to wonder what the justices think of the consent-once-removed doctrine and when they might consider it again. Here's guessing that it will not arise in the form of a § 1983 claim.