Coming and Going; the Going Part: Saucier Overruled

January 22, 2009 | | Comments Off on Coming and Going; the Going Part: Saucier Overruled

Yesterday, in Pearson v. Callahan, the Supreme Court overruled Saucier v. Katz. This is a really big deal. Section 1983 makes it a crime for anyone to violate the civil rights of another citizen ‘under color of law’. Given that expansive language (which is just as expansive as it sounds), and the availability of private damage awards, 1983 suits make up a significant proportion of the federal docket — over 40,000 per year as of 1999. The opposing principle to such a broad provision is that of ‘qualified immunity,’ under which the defendants in such cases (usually police and correctional officers) are not liable under section 1983 if at the time of the violation, it was not ‘clearly established’ that their conduct was unconstitutional. Under Saucier v. Katz, the courts were required to actually decide whether the conduct at issue was a violation of the plaintiff’s (ie. the criminal defendant’s) constitutional rights BEFORE the court decided whether or not the plaintiff was entitled to qualified immunity.

This two-step procedure, the Saucier Court reasoned, is necessary to support the Constitution’s ‘elaboration from case to case’ and to prevent constitutional stagnation. ‘The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.’

Naturally, courts didn’t want to do it; they would rather skip to the qualified immunity part by just assuming the conduct was unconstitutional. The problem is, when the standard is whether the unconstitutionality of the conduct was ‘clearly established,’ skipping the part of the decision that establishes it does not provide any guidance for police and correctional officials in the future (or any precedent on which to hold them accountable). That is what the Court in Saucier meant by “stagnation,” and why, under the Saucier “order of battle” rule, if a suit was brought, and the court thought the even if there had been a violation of the Fourth Amendment, the defendants were entitled to qualified immunity, it could not decline to decide the question of the constitutionality of what the police did before it completely dismissed the case. Today, that rule is overturned.

When the Pearson v. Callahan case was tried the lower courts used the Saucier ‘order-of-battle’ rules. Although other circuits had adopted the ‘consent once removed doctrine’ (which held that police entry into a private home, without a warrant, was constitutional if an undercover [officer] was invited) the appeals court ruled that the ‘consent once removed doctrine’ did not reasonably extend to non-officer undercover informants, and therefore, the officers involved were not entitled to have their case dismissed before it went to a jury. It so decided because of the, apparently controversial proposition, that

to allow police entry into a home, the only two exceptions to the warrant requirement are consent and exigent circumstances[, and since the police] knew (1) they had no warrant, (2) [respondent] had not consented to their entry; and (3) [respondent’s] consent to the entry of an informant could not reasonably be interpreted to extend to them, [it was not reasonable for them to believe that their entry was conducted pursuant to an exception to the warrant requirement]

In considering the precedential value of Saucier, the Court formulated the a new stare decisis standard

[P]recedent is particularly appropriate where, as here, a departure would not upset expectations, the precedent consists of a judge-made rule that was recently adopted to improve the operation of the courts, and experience has pointed up the precedent’s shortcomings[;] Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases . . . involving procedural and evidentiary rules that do not produce such reliance.

The Court also noted the “general presumption that legislative changes should be left to Congress.” This portion of analysis apparently relegates the old standard — ‘wrongly decided, badly reasoned, unworkable, or confusing in light of perceived changing circumstances or law’ (see, eg. Planned Parenthood v. Casey, Payne v. Tennessee) to statutory analysis, although it later returned to the old standard to consider the degree to which the Saucier rule had “been questioned by members of the Court, [or had] defied consistent application by the lower courts.”

The Court limited its overruling of the Saucier order-of-battle rule that that courts can still use it if doing so (a) would elucidate the reasoning of the qualified immunity question, (b) conserve judicial resources, (c) or if the court just feels like applying it. That is to say, the Saucier rule is now discretionary, and the Court has not set any criteria for the exercise of that discretion.

Ultimately, the Court gives its real reasons for overruling Saucier. The Court explains that lower courts find the idea of adjudicating constitutional questions not strictly necessary to the resolution of a dispute contrary to the doctrine of avoiding hard constitutional questions whenever possible. For that reason lower courts have in fact avoided the rule by following Saucier but limiting their decisions to the precise facts in the case before them and by creating rules that permit the courts not to apply Saucier at all (eg. when the question is definitely going to be appealed to a higher court). The Court also cites bald-faced fear that some cases do not present the facts as well as might have been done by other parties, and of downright bad faith on the part of the lower courts.* Finally, the Court is worried that Saucier’s order-of-battle prevents litigants who WIN IN LOWER COURTS from continuing to litigate their case — a strange suggestion, to say the least, in light of the court’s ‘standing’ jurisprudence, especially with regard to Fourth Amendment cases (a very complex subject for another day)

Finally, the Court analogizes its decision today to cases where it has similarly declined to set the order in which constitutional issues must be addressed, in areas such as effective assistance of counsel and the ‘good faith [reliance on a warrant]’ exception to the exclusionary rule — two areas where criminal defendants lose so often it is remarkable that anyone continues to pursue such claims. It also suggests that

[T]he two-step Saucier procedure is often, but not always, advantageous, [such that] the judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking will best facilitate the fair and efficient disposition of each case

The Court provides no further explanation for this odd proposition, which doesn’t make a single ounce of sense to me, since the whole point of Saucier, and one of the reasons it has proven difficult to administer, is that courts would almost always prefer NOT to reach the constitutional question, even though it is important to make them do so. Whatever other reasons might support the Court’s decision today, this supposed equipoise of lower courts’ predictions is not one of them.

And there is more to come. The Court is set to hear two other important criminal cases, and likely rule in favor of the government. The first (Corley v. United States) considers the extent to which Congress sought to overturn the “McNabb-Mallory” rule, which required courts to suppress statements made by criminal defendants when they are held longer than necessary before being presented to a magistrate. The second (Kansas v. Ventris) will consider whether the prosecutors are allowed to use statements collected in violation of a criminal defendant’s Sixth Amendment right to counsel, made to a fellow prisoner, in order to impeach the defendant.

* “Although the Saucier rule prescribes the sequence in which the issues must be discussed by a court in its opinion, the rule does not—and obviously cannot—specify the sequence in which judges reach their conclusions in their own internal thought processes.”

Photos courtesy of Flickr users turkeychik and dunechaser.

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