Channels, Fall 2017

Channels • 2017 • Volume 2 • Number 1 Page 63 require plaintiffs to review case law and prove that courts have already recognized the right allegedly violated in a specific enough way to uphold the § 1983 lawsuit. As the Court rephrased this standard later, particularity requires that “various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand” 41 [emphasis mine]. Saucier Era In the 1990s, the Supreme Court hinted that the two prongs drawn from Harlow (actual violation and clearly established) ought to be addressed in order. In the case Siegert v. Gilley , the Court referred to the first Harlow prong as the “first inquiry” and stated that, “A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.” 42 However, the Court was not unanimous on this point. Kennedy wrote in his concurrence, “If it is plain that a plaintiff's required [] allegations are insufficient but there is some doubt as to the constitutional right asserted, it seems to reverse the usual ordering of issues to tell the trial and appellate courts that they should resolve the constitutional question first.” 43 In the 2001 case Saucier v. Katz , the Court made the ordering of the Harlow prongs mandatory, establishing what is commonly referred to as “ Saucier Sequencing.” 44 The Court stated that qualified immunity analysis must start with the question: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?” 45 Not only is this the logical “threshold question” for allowing the case to proceed, it also “permits courts in appropriate cases to elaborate the constitutional right with greater degrees of specificity.” 46 In other words, heeding Saucier Sequencing allows courts to contribute to the development of constitutional law in a way that they could not if they routinely skipped straight to the second prong of clear establishment. However, this ruling led to intense debate on several issues, including both principles and practical concerns. Saucier arguably trespasses on the jurisprudential norms concerning dicta and constitutional avoidance. Some argue that reaching the merits question at all in light of a finding of immunity promotes an authoritative view of dicta (verbiage in a court’s opinion that does not affect the outcome of that particular case). While dicta is not inherently harmful, treating it as binding precedent may be considered essentially legislative rather than judicial in nature. 47 However, under Saucier Sequencing, courts are required to make judgments about constitutional law issues that have no effect on the outcome of the case 41 Saucier v. Katz at 202. 42 Siegert v. Gilley at 231-232. 43 Ibid., 235. 44 Saucier v. Katz. 45 Ibid., 201. 46 Ibid., 201, 207. 47 Pierre N. Leval, “Judging Under the Constitution: Dicta about Dicta,” New York University 81, no. 4 (2006): 1249-1282.