An Article III Defense of Merits-First Decisionmaking in Civil Rights Litigation: The Continued Viability of Saucier v. Katz
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AN ARTICLE III DEFENSE OF MERITS-FIRST
DECISIONMAKING IN CIVIL RIGHTS LITIGATION: THE
CONTINUED VIABILITY OF SAUCIER V. KATZ
Sam Kamin*
INTRODUCTION
On March 24, 2008, the United States Supreme Court granted certio-
rari in Pearson v. Callahan,' a search and seizure case from the Tenth Cir-
cuit.2 In granting certiorari on the Fourth Amendment question presented in
Pearson, the Court took the unusual step of asking the parties to submit
briefing on an issue that neither of them had raised: Whether the Court's
decision in Saucier v. Katz, 533 U. S. 194 (2001), should be overruled?3
Saucier was the culmination of a string of civil rights cases in which
the Supreme Court had first suggested,4 and then mandated,5 a particular
order of decisionmaking in suits brought under 42 U.S.C. § 1983.' In these
* Associate Professor, University of Denver Sturm College of Law. My thanks to Rebecca Aviel,
Alan Chen, John Greabe, Jeff Hurd, Justin Marceau, Viva Moffat, Thomas Healy, and Michael Wells
for their feedback. All errors and omissions are mine alone.
1 128 S. Ct. 1702 (2008).
2 Callahan v. Millard County, 494 F.3d 891 (10th Cit. 2007), cert. granted sub nom. Pearson v.
Callahan, 128 S. Ct. 1702 (2008).
3 Pearson, 128 S. Ct. at 1702-03.
4 See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).
The District Court granted summary judgment to Smith on the basis of qualified immunity,
assuming without deciding that a substantive due process violation took place but holding
that the law was not clearly established in 1990 so as to justify imposition of § 1983 liability.
We do not analyze this case in a similar fashion because, as we have held, the better ap-
proach to resolving cases in which the defense of qualified immunity is raised is to deter-
mine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Nor-
mally, it is only then that a court should ask whether the right allegedly implicated was clear-
ly established at the time of the events in question.
Id. (emphasis added).
5 See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999) (A court evaluating a claim of qualified
immunity 'must first determine whether the plaintiff has alleged the deprivation of an actual constitu-
tional right at all, and if so, proceed to determine whether that right was clearly established at the time of
the alleged violation.' (quoting Conn v. Gabbert, 526 U.S. 286, 291 (1999))).
6 42 U.S.C. § 1983.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress ....
Id. The rule also applies to actions brought under Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971). For example, both Saucier v. Katz, 533 U.S. 194 (2001), and Siegert v. Gilley, 500](ViewImageLocal?handle=hein.journals/gmlr16&div=5&collection=&method=preview&ext=.png&size=3)
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An Article III Defense of Merits-First Decisionmaking in Civil Rights Litigation: The Continued Viability of Saucier v. Katz
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