Channels, Fall 2017

Channels • 2017 • Volume 2 • Number 1 Page 67 the case retains its adversarial nature, “which sharpens the presentation of issues.” 73 Based on this doctrine, the court found that the officer involved in the case had standing to appeal because he “regularly engages in that conduct as part of his job” that was ruled unconstitutional by the lower court and therefore “suffers injury caused by the adverse constitutional ruling.” 74 Thus, “So long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action.” 75 Although the majority developed this doctrine, they declined to use it in this case because the plaintiff, a child at the time of the alleged offense, was about to turn eighteen and had moved away to another state. 76 Therefore, the Court declared the case moot and voided the constitutional rulings from below. This demonstrates a main limitation on prevailing party review—all parties involved must remain in a position of potential harm. This construction of prevailing party review keeps appeals from slipping out of the context of legal adversity and into the realm of legal hypotheticals. However, this restriction could limit its application to areas such as excessive force cases (where officers would have a difficult time explaining why they expected to be in a similar situation again) or cases involving children (who may reach the age of eighteen before the case reaches the Supreme Court). 77 Nevertheless, this ruling addresses the concern of appellate insulation, even if imperfectly. On the issue of rights articulation, the majority considered the fact that leaving constitutional questions without answers because of qualified immunity can result in unarticulated rights. Taking immunity as a reason to avoid the merits “for another day” faces the problem that such a “day may never come—that our regular policy of avoidance sometimes does not fit the qualified immunity situation because it threatens to leave standards of official conduct permanently in limbo.” 78 Along these lines, the Court made clear that it does not consider constitutional rulings in cases where immunity is awarded to be unimportant for future cases. The majority wrote that, “The constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or ‘statements in opinions.’” 79 In other words, even though the constitutional rulings do not affect the outcome of the case, they should nonetheless be considered authoritative for the purpose of clearly establishing the law. In the eyes of those who emphasize the need to develop constitutional law through merits decisions, this case “brought badly needed clarity to the dicta/precedent boundary, tipping merits decisions issued alongside a finding of qualified immunity decisively toward the realm of ‘precedent.’” 80 However, not all the justices agreed on this point. Justice Kennedy wrote in his dissent (joined by Justice 73 Ibid., 2028 (quoting Los Angeles v. Lyons , 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). 74 Ibid., 2029. 75 Ibid., 2029. 76 Ibid., 2033-2034. 77 Kirkpatrick at 662 (application to excessive force). 78 Camreta v. Greene at 2031 (citing County of Sacramento v. Lewis , 523 U.S. 833, 841, n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). 79 Camreta v. Greene at 2030 (quoting California v. Rooney , 483 U.S. 307, 311, 107 S.Ct. 2852, 97 L.Ed.2d 258 (1987) (per curiam)). 80 Kirkpatrick at 669.