Channels, Fall 2017

Channels • 2017 • Volume 2 • Number 1 Page 65 means that, if the officer repeated the act, he would face liability for an act that was declared unconstitutional in an unappealable decision. 55 Furthermore, the mere fact of requiring briefing on complex constitutional issues threatens to undo the point of qualified immunity, which is to provide a quick dismissal for unsubstantial claims. 56 Because of these complaints, Saucier was unpopular in the lower courts, which sometimes ignored it. 57 Even at the Supreme Court, Justices turned against Saucier . Justice Breyer wrote in Morse v. Frederick , “I would end the failed Saucier experiment now,” and Justice Alito’s opinion for the Court in Pearson detailed many of the complaints about Saucier . 58 With just shy of eight years’ reign and a growing mountain of objections, mandatory Saucier Sequencing was struck down by Pearson v. Callahan . 59 Pearson Era Analyzing the considerations involved in stare decisis and court-made rules, as well as the complaints against Saucier , the Pearson Court concluded that “experience supports our present determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained” and announced that Saucier Sequencing “should no longer be regarded as mandatory.” 60 However, Pearson did not end the question of Saucier Sequencing by making it optional. The Court’s opinion stated that Saucier Sequencing is “often appropriate” and “often beneficial.” 61 The Court called on lower courts to use, “their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” 62 Consequently, this ruling failed to address many concerns about Saucier jurisprudence, leaving lower courts with a gargantuan field of discretion and parties with substantial legal uncertainty. This is far from the ideal, which would be a straightforward legal system in which no more than one plaintiff goes without remediation for a given rights violation for the sake of establishing the law and providing officers “fair notice.” 63 Instead, “[s]ubstantial uncertainty and unpredictability have become the norm in qualified immunity cases because of the inherent manipulability of the test.” 64 This uncertainty can waste time with unwanted briefs on the merits, or it can lead to litigant strategizing, such as neglecting to address a merits in order to convince a court to avoid the question altogether (although 55 Aaron Belzer, “The Audacity of Ignoring Hope : How the Existing Qualified Immunity Analysis Leads to Unremedied Rights,” Denver University Law Review 90, no. 3 (2013): 647-689. 56 Pearson v. Callahan at 818-821. 57 Ryan E. Meltzer, “Qualified Immunity and Constitutional-Norm Generation in the Post-Saucier Era: ‘Clearly Establishing’ the Law Through Civilian Oversight of Police,” Texas Law Review 92, no. 5 (2014): 1277-1315. 58 Morse v. Frederick at 2642 (Breyer, concurring in the judgment in part and dissenting in part); Pearson v. Callahan at 818-821. 59 Pearson v. Callahan. 60 Ibid., 817-18. 61 Ibid., 818. 62 Ibid., 818. 63 Belzer; Hope v. Pelzer, 536 US 730 (2002). 64 “Federal Courts. Qualified Immunity. Sixth Circuit Denies Qualified Immunity to Police Officer for Arrest for Speech at Public Meeting. Leonard v. Robinson, No. 05-1728, 2007 WL 283832 (6th Cir. Feb. 2, 2007).” Harvard Law Review 120, no. 8 (2007): 2238-245.