dissenting:
The defense of qualified immunity must fail when, accepting the facts in the light most favorable to the plaintiff, a reasonable public official would have been aware that his conduct violated clearly established constitutional norms. Mena v. City of Simi Valley, 332 F.3d 1255, 1261 (9th Cir.2003). However, although “officials can still be on notice that their conduct violates established law even in novel factual circumstances,” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), courts presented with qualified immunity claims have a responsibility to “determine whether the law was clearly established at the time of the alleged constitutional violation.” Mena, 332 F.3d at 1261.
Whether or not the majority’s disposition with regard to the issue of characterizing “placement of stigmatizing information in an employee’s personnel file ... when the governing state law classifies an employee’s personnel file as a public record” is sensible, its decision to charge a reasonable public official with notice of its inclination to so decide is disquieting. A reasonable public official can not be expected to contemplate a significant shift in precedent, such as this Circuit choosing sides on an issue upon which other circuits have manifestly disagreed, and we have explicitly refrained from addressing, based on one line of dictum.
Given the context in which this appeal is presented, I am firmly convinced that the district court’s denial of qualified immunity to the individual Defendants-Appellants was incorrect. I respectfully dissent.
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*1114As the majority appropriately recognizes, the decision of whether to credit a qualified immunity defense is a two step inquiry. First, we determine whether the conduct of the government official violated a constitutional right of the plaintiff. Second, if a violation has occurred, we decide whether the contours of that right were clearly established at the time of the purported violation. Mena, 332 F.3d at 1261.
The majority’s determination that the first element of the qualified immunity examination has been satisfied, while not compelled by our precedent, is reasonable. Although we have previously declined to “address the current circuit split as to whether an employer can satisfy the publication prong by maintaining stigmatizing information in its personnel files,” Llamas v. Butte Community Coll. Dist., 238 F.3d 1123, 1130 (9th Cir.2001), the majority’s decision to analogize the facts of this case to those confronted by the Eleventh Circuit in Buxton v. City of Plant City, 871 F.2d 1037 (11th Cir.1989) is not objectionable. Had we confronted precisely that issue in another context, I might very well be persuaded, along with my learned colleagues, that the Buxton case “properly analyzes an employee’s liberty interest in remaining free from the public dissemination of stigmatizing information by his employer.” In the context of a qualified immunity defense, however, whether we believe that a particular rule should be adopted is irrelevant. The “relevant, dis-positive inquiry” is whether a particular right was clearly established at the time of an alleged violation of that right, inasmuch as “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Mena, 332 F.3d at 1261.
The language of our holdings in both Llamas and Mustafa v. Clark County Sch. Dist., 157 F.3d 1169 (9th Cir.1998) make astonishingly clear how inequitable it is to charge Defendants-Appellants with being on notice of the unconstitutionality of their actions. In Llamas, we “acknowledged that it remains an open question in this Circuit whether, in order to trigger due process protections, the stigmatizing charges must be publicized by the employer,” or rather “retention of stigmatizing information in [the employee’s] personnel file can constitute ‘disclosure.’ ” Llamas, 238 F.3d at 1129-30. Given our Circuit’s lack of a definitive statement regarding that “open question,” we averred that “[i]t is not well established, and the unlawfulness would not be apparent to a reasonable ... official, that filing derogatory material and/or expunging Llamas’s employment file constituted a violation of his constitutional rights. There is no ‘clearly established’ right implicated.... ” Id. at 1231. Although the publication at issue in Llamas was not precisely equivalent to the derogatory information involved in the instant case, since in Llamas the allegedly stigmatizing material had been purged from the plaintiffs file, our admonition was rather apparent. We could not identify in any previously decided cases,1 nor would we then promulgate *1115any “clearly established” law regarding the propriety of placing stigmatizing information in an employee’s personnel file without affording that employee “timely notice and a meaningful opportunity to be heard.” Id.
Moreover, our language in Mustafa, the very language upon which the majority relies for its conclusion that public officials had “ ‘fair warning’ that placement of stigmatizing charges in an employee’s personnel file may constitute publication,” does not support the majority’s position. Although we opined in Mustafa that the district court’s conclusion that the mere placement of stigmatizing information in a personnel file did not constitute publication “may [have been] problematical,” we cautioned that “this Circuit has yet to decide whether, in order for due process protections to be triggered, the charges must be made public by the employer itself, nor has this Circuit decided whether the charges must be made public in an official or intentional manner.” Mustafa, 157 F.3d at 1179 & n. 10 (emphasis added). We pointed out that “[o]ther circuits which have considered this and related issues have disagreed on whether dissemination by the defendant is required in all cases.” Id. at 1179 n.10.2 However, we chose not to confront the issue directly since the plaintiff in Mustafa had been transferred rather than terminated. Nonetheless, our language made it all too clear that the issue presented by this case had yet to be resolved. Nor have we definitively resolved the issue since our decisions in Mustafa and Llamas.
A reasonable public official is charged with notice of “sufficiently developed” law even though the situation the official confronts is neither “identical” nor even “materially similar” to the facts of the seminal cases of that area of law. Mena, 332 F.3d at 1266-67. However, the “clearly established” prong of the qualified immunity inquiry should not be written out of existence entirely. At some level, there must be a distinction between cases which give public officials “fair warning” of the potential wrongfulness of their conduct, and those which merely hint at a possible shift in position at some unspecified future date. Unfortunately, the majority has chosen to essentially eviscerate any such distinction. It is unfathomable that a reasonable public official should be aware of the unlawfulness of his conduct based on a three-word aside, which was expressly qualified by an *1116accompanying footnote, cautioning that a lower court’s decision concluding to the contrary “may be problematical.” We should not equate “clearly established” law with rules which are arrived at through extremely intuitive and analytical parsing of the dicta of two of our own cases, and the similar fact pattern of one case from a sister circuit, which stands in direct opposition to the decisions rendered by other circuits. To do so unfairly collapses the qualified immunity inquiry beyond recognition.
For the foregoing reasons, I would reverse the district court, and grant qualified immunity to the Defendants-Appellants.
. The majority deigns to consider the reasoning articulated in Llamas in spite of the fact that it was not decided until after the purported constitutional violation at issue here occurred. However, while Llamas does not “control [the] analysis,” as the majority rightfully recognizes, its import should be starkly clear. If this court could not identify, in 2001, any "clearly established law" regarding the constitutionality of placing stigmatizing information in an employee's personnel file without affording the employee a name-clearing hearing, then it is incomprehensible to expect a "reasonable public official” to have inferred the unlawfulness of his conduct in December 1998. See McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, *1115278 (2d Cir.1999) ("The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in the defendant's position should know about the constitutionality of the conduct. The unlawfulness must be apparent.”).
. The majority concludes that Buxton was not merely fair warning of the potential unconstitutionality of placing stigmatizing information in an employee's personnel file, but was in fact a "clarion call to government officials.” Alas, in adopting the rationale of the Eleventh Circuit, the majority apparently glosses over contrary decisions rendered by other circuits. As we cautioned in Mustafa, other circuits considering substantially similar issues had reached diametrically different conclusions. The Seventh Circuit, for example, requires the actual dissemination of damaging information in order to satisfy the requirement of publication, even if it is highly likely that the information will ultimately be distributed. Johnson v. Martin, 943 F.2d 15, 16-17 (7th Cir.1991) ("[T]he mere existence of damaging information in Johnson's personnel file cannot give rise to a due process challenge.”). See also Ratliff v. Milwaukee, 795 F.2d 612, 617 (7th Cir.1986) ("Absent proof that ... defendants disseminated the stigmatizing information ... [plaintiff] can not show that the defendants' actions impinged on her liberty interest ....”) (emphasis added). Similarly, the First Circuit found that the publication prong had not been satisfied where a stigmatizing memorandum had been placed in an employee's personnel file, but "was not otherwise publicized.” Ortega-Rosario v. Alvarado-Ortiz, 917 F.2d 71, 74 (1st Cir.1990).