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Wednesday, June 03, 2015

What hath Pearson wrought?

Michael Dorf and Scott Michelman comment on Monday's summary grant-and-reverse in Taylor v. Barkes, another qualified immunity case. The Court held unanimously that the right at issue (to have jails create and implement sufficient suicide screenings) was not clearly established; no SCOTUS precedent established such a right, the lower courts were divided, and Third Circuit precedent, even if it could clearly establish, was not on point. The analysis sounded very much like San Francisco v. Sheehan, which Richard discussed at the time.

I want to pull on a small thread that both Michael and Scott raise--how 2009's Pearson v. Callahan makes Taylor (and other cases) possible. Pearson overruled Saucier v. Katz, rejecting the rigid "order of battle" in which a court must first decide whether the plaintiff's right was violated on the facts at hand (on summary judgment or in the complaint) before considering whether that right was clearly established. Pearson unanimously held that, while this order of battle is typically appropriate, it is not required. A court may save judicial resources and time by deciding that a right is obviously not clearly established without getting into the weeds of a possibly difficult constitutional question. It is not surprising that lower courts have taken Pearson at its word and regularly assume a violation and reject the right as not clearly established (I discuss two examples from the Fifth Circuit, although with a focus on summary judgment analysis, here).

What is perhaps unexpected (I certainly did not anticipate it) is how the Justices themselves have used Pearson. It offers a simple, cheap, and powerful tool for protecting law enforcement officers and other government officials from judgments* the Justices regard as erroneous, without expending the time and resources on plenary review, necessitating substantive constitutional lawmaking (which Michelman discusses as something that can cut for or against civil rights plaintiffs), or violating the Court's self-imposed limit against granting plenary certiorari review solely for error correction. Pearson enabled the summary reversal in Taylor; the Court could get the defendants out from under the adverse decision in six pages, with little work and no need to engage in substantive Fourth or Fifth Amendment analysis. It similarly enabled Sheehan; the Court could hang onto and quickly resolve the "clearly established" issue, even while DIGing or avoiding the substantive issues and without having to really address the cert.-worthiness of that issue standing alone.

[*] Actually, not even judgments in most of these cases, but the erroneous denial of summary judgment or 12(b)(6) and the burden of having to litigate any longer.

Posted by Howard Wasserman on June 3, 2015 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

I don't think this is right, as the Justices did the same thing when Saucier was the law. Consider Brosseau v. Haugen, 543 U.S. 194 (2004) (per curiam), where the Justices summarily reversed on QI grounds without reaching the Fourth Amendment merits. In explaining why the Court ignored Saucier, footnote 3 states: "We exercise our summary reversal procedure here simply to correct a clear misapprehension of the qualified immunity standard."

Given that, I'm not sure Pearson enabled the cases as you suggest.

Posted by: Orin Kerr | Jun 3, 2015 3:34:05 PM

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