Channels, Fall 2017

Page 68 Minich • The Right Balance: Qualified Immunity and Section 1983 Thomas), “Dictum, though not precedent, may have its utility; but it ought not to be treated as a judgment standing on its own.” 81 The Court also took a step toward further defining the standards for reaching the merits. Referencing Pearson , they wrote that they had recently established, “a range of circumstances in which courts should address only the immunity question ” [emphasis added]. Michael Kirkpatrick and Joshua Matz argue that reading this statement in light of Pearson signals a standard that lower courts are not permitted to reach the merits in 1) fact-bound cases, 2) issues pending in a higher court, 3) questions muddled with state law, and 4) unclear claims. 82 If this interpretation is correct, this case is definitely an improvement in providing clear standards for lower courts. However, not every justice agreed with the majority opinion on this matter. Justice Kennedy’s dissent declares that the majority’s decision “results from what is emerging as a rather troubling consequence from the reasoning of our recent qualified immunity cases…the correct solution is not to override jurisdictional rules that are basic to the functioning of the Court and to the necessity of avoiding advisory opinions…So, while acknowledging the problem the Court confronts, my concern with the rule adopted for this case calls for this respectful dissent.” 83 Similarly, although Justice Scalia concurred with the Court’s decision, he suggested turning Saucier on its head by stopping “the extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity.” 84 These separate opinions illustrate qualified immunity’s ever-present tension between rights articulation and restraint based on common judicial rules. And given the varied views expressed by the justices, the Court clearly has not settled on a comfortable compromise. Scalia’s suggestion and Kennedy’s dissent are concerning to those who see merits rulings as valuable enough to override traditional constitutional avoidance, fearing the “worrisome possibility that several Justices are losing faith in the basic framework of qualified immunity doctrine.” 85 Occurring in tandem with Camreta , the case Ashcroft v. al-Kidd spoke to the Court’s standard for particularity. Here, the Court held that qualified immunity requires that “existing precedent must have placed the statutory or constitutional question beyond debate” in order to hold officers liable. 86 Scalia wrote for the Court, “A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ Anderson v. Creighton .” 87 By breaking up the sentence in this quotation from Anderson and replacing what used to be the word “a” 81 Camreta v. Greene at 2037 (Kennedy, dissenting). 82 Kirkpatrick at 677. 83 Camreta v. Greene at 2037 (Kennedy, dissenting). 84 Camreta v. Greene at 2036 (Scalia, concurring) (citing Saucier v. Katz ). 85 Kirkpatrick at 669. 86 Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, at 2083 (2011). 87 Ashcroft v. al-Kidd at 2083.