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Clearly Not Clearly Established

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Pearson v. Callahan, decided today by the U.S. Supreme Court, shares a common element with Waddington v. Sarausad, also decided today and discussed here. Both cases involve a rule of law that makes the outcome depend on the clarity with which the law was established at the time of the act in question. There are a number of such rules in or related to the criminal law that protect against fuzzy rules that are only clarified after the fact. The rule of Bouie v. City of Columbia, 378 U.S. 347, 351 (1964) provides that "no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." See also, United States v. Lanier, 520 U.S. 259 (1997). The rule of Teague v. Lane, 489 U.S. 288 (1989) protects final judgments from collateral attack based on new rules created after the direct appeal. The statutory rule of 28 U.S.C. § 2254(d) protects reasonable applications of Supreme Court precedent by state courts from second-guessing by lower federal courts.

The Pearson case involves the rule of qualified immunity under which police officers can be sued individually only if it was clearly established at the time that their acts violated a right of the plaintiff. Today's decision though, is mostly about the process for deciding the cases; the actual decision on the immunity question was easy.
In Teague, the Supreme Court decided that the question of whether a habeas petitioner's argument would make a new rule if accepted should be decided before deciding whether the argument is correct. This order of decision is in accordance with the usual practice of not deciding constitutional questions unnecessarily. If the party seeking relief from a supposedly unconstitutional practice would not get that relief even if he is right, there is no need to decide whether he is right. The judicial power is to decide "cases" and "controversies," see U.S. Const. Art. III § 2, not to answer academic questions that have no effect on the outcome.

Oddly, the Supreme Court mandated the opposite order in Saucier v. Katz, 533 U.S. 194 (2001). [CJLF filed a brief in that case, but not on this point.] The concern was that some constitutional questions would only arise in cases where qualified immunity applies, and if the decision was always that no rule was clearly established, period, there would be no way to establish the rule.

That concern was overblown, and the rigid "order of battle" rule was the subject of considerable grousing. Today the Court dumped it in a unanimous opinion by Justice Alito.

The case involved a dubious Fourth Amendment theory of "consent once removed." If the suspect, generally a drug dealer, invited an informant into his house, he has consented to entry and the police can come in, too. The Tenth Circuit rejected the theory, and I have no quarrel with that. Then they went on to hold that the law was clearly established and the officers could be held personally liable, despite the fact that there was no authority on point in the federal circuit or the state courts and multiple other jurisdictions had upheld the "consent once removed" theory. Baloney. After taking 13 pages to slough off the Saucier order-of-battle rule, the Supreme Court needed only 2 pages to dispatch the "clearly established" question.

In this case, as in Sarausad, the message is clear. When the merits question is difficult, and particularly when there is a substantial split among the courts that have considered it, the "clearly established" question is easy. So while you are griping about the unmanageable size of your docket, federal judges, stop grappling with hard questions when easy ones will dispose of the case. If the habeas respondent's or immunity defendant's position doesn't smack you as obviously wrong right off the bat, then the law is probably not "clearly established" and you can and should get rid of the issue quickly on that basis.

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We all first heard the phrase "a government of laws, not men" in middle school civics class. Some judges may do well with no more than a dictionary and a refresher course in middle school civics.

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