(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PEARSON ET AL. v. CALLAHAN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 07–751. Argued October 14, 2008—Decided January 21, 2009
After the Utah Court of Appeals vacated respondent’s conviction for
possession and distribution of drugs, which he sold to an undercover
informant he had voluntarily admitted into his house, he brought
this 42 U. S. C. §1983 damages action in federal court, alleging that
petitioners, the officers who supervised and conducted the war
rantless search of the premises that led to his arrest after the sale,
had violated the Fourth Amendment. The District Court granted
summary judgment in favor of the officers. Noting that other courts
had adopted the “consent-once-removed” doctrine—which permits a
warrantless police entry into a home when consent to enter has al
ready been granted to an undercover officer who has observed con
traband in plain view—the court concluded that the officers were en
titled to qualified immunity because they could reasonably have
believed that the doctrine authorized their conduct. Following the
procedure mandated in Saucier v. Katz, 533 U. S. 194, the Tenth Cir
cuit held that petitioners were not entitled to qualified immunity.
The court disapproved broadening the consent-once-removed doctrine
to situations in which the person granted initial consent was not an
undercover officer, but merely an informant. It further held that the
Fourth Amendment right to be free in one’s home from unreasonable
searches and arrests was clearly established at the time of respon
dent’s arrest, and determined that, under this Court’s clearly estab
lished precedents, warrantless entries into a home are per se unrea
sonable unless they satisfy one of the two established exceptions for
consent and exigent circumstances. The court concluded that peti
tioners could not reasonably have believed that their conduct was
lawful because they knew that (1) they had no warrant; (2) respon
dent had not consented to their entry; and (3) his consent to the entry
2 PEARSON v. CALLAHAN
Syllabus
of an informant could not reasonably be interpreted to extend to
them. In granting certiorari, this Court directed the parties to ad
dress whether Saucier should be overruled in light of widespread
criticism directed at it.
Held:
1. The Saucier procedure should not be regarded as an inflexible
requirement. Pp. 5–19.
(a) Saucier mandated, see 533 U. S., at 194, a two-step sequence
for resolving government officials’ qualified immunity claims: A court
must decide (1) whether the facts alleged or shown by the plaintiff
make out a violation of a constitutional right, and (2) if so, whether
that right was “clearly established” at the time of the defendant’s al
leged misconduct, id., at 201. Qualified immunity applies unless the
official's conduct violated such a right. Anderson v. Creighton, 483
U. S. 635, 640. Pp. 5–7.
(b) Stare decisis does not prevent this Court from determining
whether the Saucier procedure should be modified or abandoned.
Revisiting precedent is particularly appropriate where, as here, a de
parture would not upset settled expectations, see, e.g., United States
v. Gaudin, 515 U. S. 506, 521; the precedent consists of a rule that is
judge-made and adopted to improve court operations, not a statute
promulgated by Congress, see, e.g., State Oil Co. v. Khan, 522 U. S. 3,
20; and the precedent has “been questioned by Members of th[is]
Court in later decisions, and [has] defied consistent application by
the lower courts,” Payne v. Tennessee, 501 U. S. 808, 829–830. Re
spondent’s argument that Saucier should not be reconsidered unless
the Court concludes that it was “badly reasoned” or that its rule has
proved “unworkable,” see Payne, supra, at 827, is rejected. Those
standards are out of place in the present context, where a consider
able body of new experience supports a determination that a manda
tory, two-step rule for resolving all qualified immunity claims should
not be retained. Pp. 7–10.
(c) Reconsideration of the Saucier procedure demonstrates that,
while the sequence set forth therein is often appropriate, it should no
longer be regarded as mandatory in all cases. Pp. 10–19.
(i) The Court continues to recognize that the Saucier protocol is
often beneficial. In some cases, a discussion of why the relevant facts
do not violate clearly established law may make it apparent that in
fact the relevant facts do not make out a constitutional violation at
all. And Saucier was correct in noting that the two-step procedure
promotes the development of constitutional precedent and is espe
cially valuable for questions that do not frequently arise in cases in
which a qualified immunity defense is unavailable. See 533 U. S., at
194. Pp. 10–11.
Cite as: 555 U. S. ____ (2009) 3
Syllabus
(ii) Nevertheless, experience in this Court and the lower fed
eral courts has pointed out the rigid Saucier procedure’s shortcom
ings. For example, it may result in a substantial expenditure of
scarce judicial resources on difficult questions that have no effect on
the case’s outcome, and waste the parties’ resources by forcing them
to assume the costs of litigating constitutional questions and endure
delays attributable to resolving those questions when the suit other
wise could be disposed of more readily. Moreover, although the
procedure’s first prong is intended to further the development of
constitutional precedent, opinions following that procedure often fail
to make a meaningful contribution to such development. Further,
when qualified immunity is asserted at the pleading stage, the
answer to whether there was a violation may depend on a kalei
doscope of facts not yet fully developed. And the first step may create
a risk of bad decisionmaking, as where the briefing of constitutional
questions is woefully inadequate. Application of the Saucier rule also
may make it hard for affected parties to obtain appellate review of
constitutional decisions having a serious prospective effect on their
operations. For example, where a court holds that a defendant has
committed a constitutional violation, but then holds that the viola
tion was not clearly established, the defendant, as the winning party,
may have his right to appeal the adverse constitutional holding chal
lenged. Because rigid adherence to Saucier departs from the general
rule of constitutional avoidance, cf., e.g., Scott v. Harris, 550 U. S.
372, 388, the Court may appropriately decline to mandate the order
of decision that the lower courts must follow, see, e.g., Strickland v.
Washington, 466 U. S. 668, 697. This flexibility properly reflects the
Court’s respect for the lower federal courts. Because the two-step
Saucier procedure is often, but not always, advantageous, those
judges are in the best position to determine the order of decisionmak
ing that will best facilitate the fair and efficient disposition of each
case. Pp. 11–17.
(iii) Misgivings concerning today’s decision are unwarranted.
It does not prevent the lower courts from following Saucier; it simply
recognizes that they should have the discretion to decide whether
that procedure is worthwhile in particular cases. Moreover, it will
not retard the development of constitutional law, result in a prolif
eration of damages claims against local governments, or spawn new
litigation over the standards for deciding whether to reach the par
ticular case’s merits. Pp. 17–19.
2. Petitioners are entitled to qualified immunity because it was not
clearly established at the time of the search that their conduct was
unconstitutional. When the entry occurred, the consent-once
4 PEARSON v. CALLAHAN
Syllabus
removed doctrine had been accepted by two State Supreme Courts
and three Federal Courts of Appeals, and not one of the latter had is
sued a contrary decision. Petitioners were entitled to rely on these
cases, even though their own Federal Circuit had not yet ruled on
consent-once-removed entries. See Wilson v. Layne, 526 U. S. 603,
618. Pp. 19–20.
494 F. 3d 891, reversed.
ALITO, J., delivered the opinion for a unanimous Court.
Cite as: 555 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–751
_________________
CORDELL PEARSON, ET AL., PETITIONERS v. AFTON
CALLAHAN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[January 21, 2009]
JUSTICE ALITO delivered the opinion of the Court.
This is an action brought by respondent under Rev.
Stat. §1979, 42 U. S. C. §1983, against state law enforce
ment officers who conducted a warrantless search of his
house incident to his arrest for the sale of methampheta
mine to an undercover informant whom he had voluntarily
admitted to the premises. The Court of Appeals held that
petitioners were not entitled to summary judgment on
qualified immunity grounds. Following the procedure we
mandated in Saucier v. Katz, 533 U. S. 194 (2001), the
Court of Appeals held, first, that respondent adduced facts
sufficient to make out a violation of the Fourth Amend
ment and, second, that the unconstitutionality of the
officers’ conduct was clearly established. In granting
review, we required the parties to address the additional
question whether the mandatory procedure set out in
Saucier should be retained.
We now hold that the Saucier procedure should not be
regarded as an inflexible requirement and that petitioners
are entitled to qualified immunity on the ground that it
was not clearly established at the time of the search that
2 PEARSON v. CALLAHAN
Opinion of the Court
their conduct was unconstitutional. We therefore reverse.
I
A
The Central Utah Narcotics Task Force is charged with
investigating illegal drug use and sales. In 2002, Brian
Bartholomew, who became an informant for the task force
after having been charged with the unlawful possession of
methamphetamine, informed Officer Jeffrey Whatcott that
respondent Afton Callahan had arranged to sell Bar
tholomew methamphetamine later that day.
That evening, Bartholomew arrived at respondent’s
residence at about 8 p.m. Once there, Bartholomew went
inside and confirmed that respondent had methampheta
mine available for sale. Bartholomew then told respon
dent that he needed to obtain money to make his purchase
and left.
Bartholomew met with members of the task force at
about 9 p.m. and told them that he would be able to buy a
gram of methamphetamine for $100. After concluding
that Bartholomew was capable of completing the planned
purchase, the officers searched him, determined that he
had no controlled substances on his person, gave him a
marked $100 bill and a concealed electronic transmitter to
monitor his conversations, and agreed on a signal that he
would give after completing the purchase.
The officers drove Bartholomew to respondent’s trailer
home, and respondent’s daughter let him inside. Respon
dent then retrieved a large bag containing methampheta
mine from his freezer and sold Bartholomew a gram of
methamphetamine, which he put into a small plastic bag.
Bartholomew gave the arrest signal to the officers who
were monitoring the conversation, and they entered the
trailer through a porch door. In the enclosed porch, the
officers encountered Bartholomew, respondent, and two
other persons, and they saw respondent drop a plastic bag,
Cite as: 555 U. S. ____ (2009) 3
Opinion of the Court
which they later determined contained methampheta
mine. The officers then conducted a protective sweep
of the premises. In addition to the large bag of meth-
amphetamine, the officers recovered the marked bill
from respondent and a small bag containing meth-
amphetamine from Bartholomew, and they found drug
syringes in the residence. As a result, respondent was
charged with the unlawful possession and distribution of
methamphetamine.
B
The trial court held that the warrantless arrest and
search were supported by exigent circumstances. On
respondent’s appeal from his conviction, the Utah attorney
general conceded the absence of exigent circumstances,
but urged that the inevitable discovery doctrine justified
introduction of the fruits of the warrantless search. The
Utah Court of Appeals disagreed and vacated respondent’s
conviction. See State v. Callahan, 2004 LIT App. 164, 93
P. 3d 103. Respondent then brought this damages action
under 42 U. S. C. §1983 in the United States District
Court for the District of Utah, alleging that the officers
had violated the Fourth Amendment by entering his home
without a warrant. See Callahan v. Millard Cty., No.
2:04–CV–00952, 2006 WL 1409130 (2006).
In granting the officers’ motion for summary judgment,
the District Court noted that other courts had adopted the
“consent-once-removed” doctrine, which permits a war
rantless entry by police officers into a home when consent
to enter has already been granted to an undercover officer
or informant who has observed contraband in plain view.
Believing that this doctrine was in tension with our inter
vening decision in Georgia v. Randolph, 547 U. S. 103
(2006), the District Court concluded that “the simplest
approach is to assume that the Supreme Court will ulti
mately reject the [consent-once-removed] doctrine and find
4 PEARSON v. CALLAHAN
Opinion of the Court
that searches such as the one in this case are not reason
able under the Fourth Amendment.” 2006 WL 1409130,
at *8. The Court then held that the officers were entitled
to qualified immunity because they could reasonably have
believed that the consent-once-removed doctrine author
ized their conduct.
On appeal, a divided panel of the Tenth Circuit held
that petitioners’ conduct violated respondent’s Fourth
Amendment rights. Callahan v. Millard Cty., 494 F. 3d
891, 895–899 (2007). The panel majority stated that “[t]he
‘consent-once-removed’ doctrine applies when an under
cover officer enters a house at the express invitation of
someone with authority to consent, establishes probable
cause to arrest or search, and then immediately summons
other officers for assistance.” Id., at 896. The majority
took no issue with application of the doctrine when the
initial consent was granted to an undercover law enforce
ment officer, but the majority disagreed with decisions
that “broade[n] this doctrine to grant informants the same
capabilities as undercover officers.” Ibid.
The Tenth Circuit panel further held that the Fourth
Amendment right that it recognized was clearly estab
lished at the time of respondent’s arrest. Id., at 898–899.
“In this case,” the majority stated, “the relevant right is
the right to be free in one’s home from unreasonable
searches and arrests.” Id., at 898. The Court determined
that, under the clearly established precedents of this
Court and the Tenth Circuit, “warrantless entries into a
home are per se unreasonable unless they satisfy the
established exceptions.” Id., at 898–899. In the panel’s
words, “the Supreme Court and the Tenth Circuit have
clearly established that to allow police entry into a home,
the only two exceptions to the warrant requirement are
consent and exigent circumstances.” Id., at 899. Against
that backdrop, the panel concluded, petitioners could not
reasonably have believed that their conduct was lawful
Cite as: 555 U. S. ____ (2009) 5
Opinion of the Court
because petitioners “knew (1) they had no warrant; (2)
[respondent] had not consented to their entry; and (3)
[respondent’s] consent to the entry of an informant could
not reasonably be interpreted to extend to them.” Ibid.
In dissent, Judge Kelly argued that “no constitutional
violation occurred in this case” because, by inviting Bar
tholomew into his house and participating in a narcotics
transaction there, respondent had compromised the pri
vacy of the residence and had assumed the risk that Bar
tholomew would reveal their dealings to the police. Id., at
903. Judge Kelly further concluded that, even if petition
ers’ conduct had been unlawful, they were nevertheless
entitled to qualified immunity because the constitutional
right at issue—“the right to be free from the warrantless
entry of police officers into one’s home to effectuate an
arrest after one has granted voluntary, consensual entry
to a confidential informant and undertaken criminal
activity giving rise to probable cause”—was not “clearly
established” at the time of the events in question. Id., at
903–904.
As noted, the Court of Appeals followed the Saucier
procedure. The Saucier procedure has been criticized by
Members of this Court and by lower court judges, who
have been required to apply the procedure in a great
variety of cases and thus have much firsthand experience
bearing on its advantages and disadvantages. Accord
ingly, in granting certiorari, we directed the parties to
address the question whether Saucier should be overruled.
552 U. S. ___ (2008).
II
A
The doctrine of qualified immunity protects government
officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
6 PEARSON v. CALLAHAN
Opinion of the Court
have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818
(1982). Qualified immunity balances two important inter
ests—the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when
they perform their duties reasonably. The protection of
qualified immunity applies regardless of whether the
government official’s error is “a mistake of law, a mistake
of fact, or a mistake based on mixed questions of law and
fact.” Groh v. Ramirez, 540 U. S. 551, 567 (2004)
(KENNEDY, J., dissenting) (citing Butz v. Economou, 438
U. S. 478, 507 (1978) (noting that qualified immunity
covers “mere mistakes in judgment, whether the mistake
is one of fact or one of law”)).
Because qualified immunity is “an immunity from suit
rather than a mere defense to liability . . . it is effectively
lost if a case is erroneously permitted to go to trial.”
Mitchell v. Forsyth, 472 U. S. 511, 526 (1985) (emphasis
deleted). Indeed, we have made clear that the “driving
force” behind creation of the qualified immunity doctrine
was a desire to ensure that “ ‘insubstantial claims’ against
government officials [will] be resolved prior to discovery.”
Anderson v. Creighton, 483 U. S. 635, 640, n. 2 (1987).
Accordingly, “we repeatedly have stressed the importance
of resolving immunity questions at the earliest possible
stage in litigation.” Hunter v. Bryant, 502 U. S. 224, 227
(1991) (per curiam).
In Saucier, 533 U. S. 194, this Court mandated a two
step sequence for resolving government officials’ qualified
immunity claims. First, a court must decide whether the
facts that a plaintiff has alleged (see Fed. Rules Civ. Proc.
12(b)(6), (c)) or shown (see Rules 50, 56) make out a viola
tion of a constitutional right. 533 U. S., at 201. Second, if
the plaintiff has satisfied this first step, the court must
decide whether the right at issue was “clearly established”
at the time of defendant’s alleged misconduct. Ibid.
Cite as: 555 U. S. ____ (2009) 7
Opinion of the Court
Qualified immunity is applicable unless the official’s
conduct violated a clearly established constitutional right.
Anderson, supra, at 640.
Our decisions prior to Saucier had held that “the better
approach to resolving cases in which the defense of quali
fied immunity is raised is to determine first whether the
plaintiff has alleged a deprivation of a constitutional right
at all.” County of Sacramento v. Lewis, 523 U. S. 833, 841,
n. 5 (1998). Saucier made that suggestion a mandate. For
the first time, we held that whether “the facts alleged
show the officer’s conduct violated a constitutional right
. . . must be the initial inquiry” in every qualified immu
nity case. 533 U. S., at 20 (emphasis added). Only after
completing this first step, we said, may a court turn to
“the next, sequential step,” namely, “whether the right
was clearly established.” Ibid.
This two-step procedure, the Saucier Court reasoned, is
necessary to support the Constitution’s “elaboration from
case to case” and to prevent constitutional stagnation.
Ibid. “The law might be deprived of this explanation were
a court simply to skip ahead to the question whether the
law clearly established that the officer's conduct was
unlawful in the circumstances of the case.” Ibid.
B
In considering whether the Saucier procedure should be
modified or abandoned, we must begin with the doctrine of
stare decisis. Stare decisis “promotes the evenhanded,
predictable, and consistent development of legal princi
ples, fosters reliance on judicial decisions, and contributes
to the actual and perceived integrity of the judicial proc
ess.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). Al
though “[w]e approach the reconsideration of [our] deci
sions . . . with the utmost caution,” “[s]tare decisis is not
an inexorable command.” State Oil Co. v. Khan, 522 U. S.
3, 20 (1997) (internal quotation marks omitted). Revisit
8 PEARSON v. CALLAHAN
Opinion of the Court
ing precedent is particularly appropriate where, as here, a
departure would not upset expectations, the precedent
consists of a judge-made rule that was recently adopted to
improve the operation of the courts, and experience has
pointed up the precedent’s shortcomings.
“Considerations in favor of stare decisis are at their
acme in cases involving property and contract rights,
where reliance interests are involved; the opposite is true
in cases . . . involving procedural and evidentiary rules”
that do not produce such reliance. Payne, supra, at 828
(citations omitted). Like rules governing procedures and
the admission of evidence in the trial courts, Saucier’s
two-step protocol does not affect the way in which parties
order their affairs. Withdrawing from Saucier’s categori
cal rule would not upset settled expectations on anyone’s
part. See United States v. Gaudin, 515 U. S. 506, 521
(1995).
Nor does this matter implicate “the general presumption
that legislative changes should be left to Congress.” Khan,
supra, at 20. We recognize that “considerations of stare
decisis weigh heavily in the area of statutory construction,
where Congress is free to change this Court’s interpreta
tion of its legislation.” Illinois Brick Co. v. Illinois, 431
U. S. 720, 736 (1977). But the Saucier rule is judge made
and implicates an important matter involving internal
Judicial Branch operations. Any change should come from
this Court, not Congress.
Respondent argues that the Saucier procedure should
not be reconsidered unless we conclude that its justifica
tion was “badly reasoned” or that the rule has proved to be
“unworkable,” see Payne, supra, at 827, but those stan
dards, which are appropriate when a constitutional or
statutory precedent is challenged, are out of place in the
present context. Because of the basis and the nature of
the Saucier two-step protocol, it is sufficient that we now
have a considerable body of new experience to consider
Cite as: 555 U. S. ____ (2009) 9
Opinion of the Court
regarding the consequences of requiring adherence to this
inflexible procedure. This experience supports our present
determination that a mandatory, two-step rule for resolv
ing all qualified immunity claims should not be retained.
Lower court judges, who have had the task of applying
the Saucier rule on a regular basis for the past eight
years, have not been reticent in their criticism of Saucier’s
“rigid order of battle.” See, e.g., Purtell v. Mason, 527
F. 3d 615, 622 (CA7 2008) (“This ‘rigid order of battle’ has
been criticized on practical, procedural, and substantive
grounds”); Leval, Judging Under the Constitution: Dicta
About Dicta, 81 N. Y. U. L. Rev. 1249, 1275, 1277 (2006)
(referring to Saucier’s mandatory two-step framework as
“a new and mischievous rule” that amounts to “a puzzling
misadventure in constitutional dictum”). And application
of the rule has not always been enthusiastic. See Higazy
v. Templeton, 505 F. 3d 161, 179, n. 19 (CA2 2007) (“We do
not reach the issue of whether [plaintiff’s] Sixth Amend
ment rights were violated, because principles of judicial
restraint caution us to avoid reaching constitutional ques
tions when they are unnecessary to the disposition of a
case”); Cherrington v. Skeeter, 344 F. 3d 631, 640 (CA6
2003) (“[I]t ultimately is unnecessary for us to decide
whether the individual Defendants did or did not heed the
Fourth Amendment command . . . because they are enti
tled to qualified immunity in any event”); Pearson v.
Ramos, 237 F. 3d 881, 884 (CA7 2001) (“Whether [the
Saucier] rule is absolute may be doubted”).
Members of this Court have also voiced criticism of the
Saucier rule. See Morse v. Frederick, 551 U. S. ___, ___
(2007) (slip op., at 8) (BREYER, J., concurring in judgment
in part and dissenting in part) (“I would end the failed
Saucier experiment now”); Bunting v. Mellen, 541 U. S.
1019 (2004) (STEVENS, J., joined by GINSBURG and
BREYER, JJ., respecting denial of certiorari) (criticizing the
“unwise judge-made rule under which courts must decide
10 PEARSON v. CALLAHAN
Opinion of the Court
whether the plaintiff has alleged a constitutional violation
before addressing the question whether the defendant
state actor is entitled to qualified immunity”); Id., at 1025
(SCALIA, J., joined by Rehnquist, C. J., dissenting from
denial of certiorari) (“We should either make clear that
constitutional determinations are not insulated from our
review . . . or else drop any pretense at requiring the
ordering in every case” (emphasis in original)); Brosseau v.
Haugen, 543 U. S. 194, 201–202 (2004) (BREYER, J., joined
by SCALIA and GINSBURG, JJ., concurring) (urging Court
to reconsider Saucier’s “rigid ‘order of battle,’ ” which
“requires courts unnecessarily to decide difficult constitu
tional questions when there is available an easier basis for
the decision (e.g., qualified immunity) that will satisfacto
rily resolve the case before the court”); Saucier, 533 U. S.,
at 210 (GINSBURG, J., concurring in judgment) (“The two
part test today’s decision imposes holds large potential to
confuse”).
Where a decision has “been questioned by Members of
the Court in later decisions and [has] defied consistent
application by the lower courts,” these factors weigh in
favor of reconsideration. Payne, 501 U. S., at 829–830; see
also Crawford v. Washington, 541 U. S. 36, 60 (2004).
Collectively, the factors we have noted make our present
reevaluation of the Saucier two-step protocol appropriate.
III
On reconsidering the procedure required in Saucier, we
conclude that, while the sequence set forth there is often
appropriate, it should no longer be regarded as manda
tory. The judges of the district courts and the courts of
appeals should be permitted to exercise their sound discre
tion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.
Cite as: 555 U. S. ____ (2009)
11
Opinion of the Court
A
Although we now hold that the Saucier protocol should
not be regarded as mandatory in all cases, we continue to
recognize that it is often beneficial. For one thing, there
are cases in which there would be little if any conservation
of judicial resources to be had by beginning and ending
with a discussion of the “clearly established” prong. “[I]t
often may be difficult to decide whether a right is clearly
established without deciding precisely what the constitu
tional right happens to be.” Lyons v. Xenia, 417 F. 3d 565,
581 (CA6 2005) (Sutton, J., concurring). In some cases, a
discussion of why the relevant facts do not violate clearly
established law may make it apparent that in fact the
relevant facts do not make out a constitutional violation at
all. In addition, the Saucier Court was certainly correct in
noting that the two-step procedure promotes the develop
ment of constitutional precedent and is especially valu-
able with respect to questions that do not frequently
arise in cases in which a qualified immunity defense is
unavailable.
B
At the same time, however, the rigid Saucier procedure
comes with a price. The procedure sometimes results in a
substantial expenditure of scarce judicial resources on
difficult questions that have no effect on the outcome of
the case. There are cases in which it is plain that a consti
tutional right is not clearly established but far from obvi
ous whether in fact there is such a right. District courts
and courts of appeals with heavy caseloads are often
understandably unenthusiastic about what may seem to
be an essentially academic exercise.
Unnecessary litigation of constitutional issues also
wastes the parties’ resources. Qualified immunity is “an
immunity from suit rather than a mere defense to liabil
ity.” Mitchell, 472 U. S., at 526 (emphasis deleted). Sau
12 PEARSON v. CALLAHAN
Opinion of the Court
cier’s two-step protocol “disserve[s] the purpose of quali
fied immunity” when it “forces the parties to endure addi
tional burdens of suit—such as the costs of litigating
constitutional questions and delays attributable to resolv
ing them—when the suit otherwise could be disposed of
more readily.” Brief for Nat. Assn. of Criminal Defense
Lawyers as Amicus Curiae 30.
Although the first prong of the Saucier procedure is
intended to further the development of constitutional
precedent, opinions following that procedure often fail to
make a meaningful contribution to such development. For
one thing, there are cases in which the constitutional
question is so fact-bound that the decision provides little
guidance for future cases. See Scott v. Harris, 550 U. S.
372, 388 (2007) (BREYER, J., concurring) (counseling
against the Saucier two-step protocol where the question
is “so fact dependent that the result will be confusion
rather than clarity”); Buchanan v. Maine, 469 F. 3d 158,
168 (CA1 2006) (“We do not think the law elaboration
purpose will be well served here, where the Fourth
Amendment inquiry involves a reasonableness question
which is highly idiosyncratic and heavily dependent on the
facts”).
A decision on the underlying constitutional question in a
§1983 damages action or a Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388 (1971),1 action may have
scant value when it appears that the question will soon be
decided by a higher court. When presented with a consti
tutional question on which this Court had just granted
certiorari, the Ninth Circuit elected to “bypass Saucier’s
first step and decide only whether [the alleged right] was
——————
1 See Harlow v. Fitzgerald, 457 U. S. 800, 818, and n. 30 (1982) (not
ing that the Court’s decisions equate the qualified immunity of state
officials sued under 42 U. S. C. §1983 with the immunity of federal
officers sued directly under the Constitution).
Cite as: 555 U. S. ____ (2009) 13
Opinion of the Court
clearly established.” Motley v. Parks, 432 F. 3d 1072,
1078, and n. 5 (2005) (en banc). Similar considerations
may come into play when a court of appeals panel con
fronts a constitutional question that is pending before the
court en banc or when a district court encounters a consti
tutional question that is before the court of appeals.
A constitutional decision resting on an uncertain inter
pretation of state law is also of doubtful precedential
importance. As a result, several courts have identified an
“exception” to the Saucier rule for cases in which resolu
tion of the constitutional question requires clarification of
an ambiguous state statute. Egolf v. Witmer, 526 F. 3d
104, 109–111 (CA3 2008); accord, Tremblay v. McClellan,
350 F. 3d 195, 200 (CA1 2003); Ehrlich v. Glastonbury,
348 F. 3d 48, 57–60 (CA2 2003). Justifying the decision to
grant qualified immunity to the defendant without first
resolving, under Saucier’s first prong, whether the defen
dant’s conduct violated the Constitution, these courts have
observed that Saucier’s “underlying principle” of encourag
ing federal courts to decide unclear legal questions in
order to clarify the law for the future “is not meaningfully
advanced . . . when the definition of constitutional rights
depends on a federal court’s uncertain assumptions about
state law.” Egolf, supra, at 110; accord, Tremblay, supra,
at 200; Ehrlich, supra, at 58.
When qualified immunity is asserted at the pleading
stage, the precise factual basis for the plaintiff’s claim or
claims may be hard to identify. See Lyons, supra, at 582
(Sutton, J., concurring); Kwai Fun Wong v. United States,
373 F. 3d 952, 957 (CA9 2004); Mollica v. Volker, 229 F. 3d
366, 374 (CA2 2000). Accordingly, several courts have
recognized that the two-step inquiry “is an uncomfortable
exercise where . . . the answer [to] whether there was a
violation may depend on a kaleidoscope of facts not yet
fully developed” and have suggested that “[i]t may be that
Saucier was not strictly intended to cover” this situation.
14 PEARSON v. CALLAHAN
Opinion of the Court
Dirrane v. Brookline Police Dept., 315 F. 3d 65, 69–70
(CA1 2002); see also Robinette v. Jones, 476 F. 3d 585, 592,
n. 8 (CA8 2007) (declining to follow Saucier because “the
parties have provided very few facts to define and limit
any holding” on the constitutional question).
There are circumstances in which the first step of the
Saucier procedure may create a risk of bad decisionmak
ing. The lower courts sometimes encounter cases in which
the briefing of constitutional questions is woefully inade
quate. See Lyons, 417 F. 3d, at 582 (Sutton, J., concur
ring) (noting the “risk that constitutional questions may
be prematurely and incorrectly decided in cases where
they are not well presented”); Mollica, supra, at 374.
Although the Saucier rule prescribes the sequence in
which the issues must be discussed by a court in its opin
ion, the rule does not—and obviously cannot—specify the
sequence in which judges reach their conclusions in their
own internal thought processes. Thus, there will be cases
in which a court will rather quickly and easily decide that
there was no violation of clearly established law before
turning to the more difficult question whether the relevant
facts make out a constitutional question at all. In such
situations, there is a risk that a court may not devote as
much care as it would in other circumstances to the deci
sion of the constitutional issue. See Horne v. Coughlin,
191 F. 3d, 244, 247 (CA2 1999) (“Judges risk being insuffi
ciently thoughtful and cautious in uttering pronounce
ments that play no role in their adjudication”); Leval
1278–1279.
Rigid adherence to the Saucier rule may make it hard
for affected parties to obtain appellate review of constitu
tional decisions that may have a serious prospective effect
on their operations. Where a court holds that a defendant
committed a constitutional violation but that the violation
was not clearly established, the defendant may face a
difficult situation. As the winning party, the defendant’s
Cite as: 555 U. S. ____ (2009) 15
Opinion of the Court
right to appeal the adverse holding on the constitutional
question may be contested. See Bunting, 541 U. S., at
1025 (SCALIA, J., dissenting from denial of certiorari)
(“The perception of unreviewability undermines adherence
to the sequencing rule we . . . created” in Saucier);2 see
also Kalka v. Hawk, 215 F. 3d 90, 96, n. 9 (CADC 2000)
(noting that “[n]ormally, a party may not appeal from a
favorable judgment” and that the Supreme Court “has
apparently never granted the certiorari petition of a party
who prevailed in the appellate court”). In cases like Bun
ting, the “prevailing” defendant faces an unenviable
choice: “compl[y] with the lower court’s advisory dictum
without opportunity to seek appellate [or certiorari] re
view,” or “def[y] the views of the lower court, adher[e] to
practices that have been declared illegal, and thus invit[e]
new suits” and potential “punitive damages.” Horne,
supra, at 247–248.
Adherence to Saucier’s two-step protocol departs from
the general rule of constitutional avoidance and runs
counter to the “older, wiser judicial counsel ‘not to pass on
questions of constitutionality . . . unless such adjudication
is unavoidable.’ ” Scott, 550 U. S., at 388 (BREYER, J.,
——————
2 In Bunting, the Court of Appeals followed the Saucier two-step pro
tocol and first held that the Virginia Military Institute’s use of the word
“God” in a “supper roll call” ceremony violated the Establishment
Clause, but then granted the defendants qualified immunity because
the law was not clearly established at the relevant time. Mellen v.
Bunting, 327 F. 3d 355, 365–376 (CA4 2003), cert. denied, 541 U. S.
1019 (2004). Although they had a judgment in their favor below, the
defendants asked this Court to review the adverse constitutional
ruling. Dissenting from the denial of certiorari, JUSTICE SCALIA, joined
by Chief Justice Rehnquist, criticized “a perceived procedural tangle of
the Court’s own making.” 541 U. S., at 1022. The “tangle” arose from
the Court’s “ ‘settled refusal’ to entertain an appeal by a party on an
issue as to which he prevailed” below, a practice that insulates from
review adverse merits decisions that are “locked inside” favorable
qualified immunity rulings. Id., at 1023, 1024.
16 PEARSON v. CALLAHAN
Opinion of the Court
concurring) (quoting Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101, 105 (1944)); see Ashwander v.
TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring)
(“The Court will not pass upon a constitutional question
although properly presented by the record, if there is also
present some other ground upon which the case may be
disposed of ”).
In other analogous contexts, we have appropriately
declined to mandate the order of decision that the lower
courts must follow. For example, in Strickland v. Wash
ington, 466 U. S. 668 (1984), we recognized a two-part test
for determining whether a criminal defendant was denied
the effective assistance of counsel: The defendant must
demonstrate (1) that his counsel’s performance fell below
what could be expected of a reasonably competent practi
tioner; and (2) that he was prejudiced by that substandard
performance. Id., at 687. After setting forth and applying
the analytical framework that courts must use in evaluat
ing claims of ineffective assistance of counsel, we left it to
the sound discretion of lower courts to determine the order
of decision. Id., at 697 (“Although we have discussed the
performance component of an ineffectiveness claim prior
to the prejudice component, there is no reason for a court
deciding an ineffective assistance claim to approach the
inquiry in the same order or even to address both compo
nents of the inquiry if the defendant makes an insufficient
showing on one”).
In United States v. Leon, 468 U. S. 897 (1984), we cre
ated an exception to the exclusionary rule when officers
reasonably rely on a facially valid search warrant. Id., at
913. In that context, we recognized that a defendant
challenging a search will lose if either: (1) the warrant
issued was supported by probable cause; or (2) it was not,
but the officers executing it reasonably believed that it
was. Again, after setting forth and applying the analytical
framework that courts must use in evaluating the good
Cite as: 555 U. S. ____ (2009) 17
Opinion of the Court
faith exception to the Fourth Amendment warrant re
quirement, we left it to the sound discretion of the lower
courts to determine the order of decision. Id., at 924, 925
(“There is no need for courts to adopt the inflexible prac
tice of always deciding whether the officers’ conduct mani
fested objective good faith before turning to the question
whether the Fourth Amendment has been violated”).
This flexibility properly reflects our respect for the lower
federal courts that bear the brunt of adjudicating these
cases. Because the two-step Saucier procedure is often,
but not always, advantageous, the judges of the district
courts and the courts of appeals are in the best position to
determine the order of decisionmaking will best facilitate
the fair and efficient disposition of each case.
C
Any misgivings concerning our decision to withdraw
from the mandate set forth in Saucier are unwarranted.
Our decision does not prevent the lower courts from fol
lowing the Saucier procedure; it simply recognizes that
those courts should have the discretion to decide whether
that procedure is worthwhile in particular cases. More
over, the development of constitutional law is by no means
entirely dependent on cases in which the defendant may
seek qualified immunity. Most of the constitutional issues
that are presented in §1983 damages actions and Bivens
cases also arise in cases in which that defense is not avail
able, such as criminal cases and §1983 cases against a
municipality, as well as §1983 cases against individuals
where injunctive relief is sought instead of or in addition
to damages. See Lewis, 523 U. S., at 841, n. 5 (noting that
qualified immunity is unavailable “in a suit to enjoin
future conduct, in an action against a municipality, or in
litigating a suppression motion”).
We also do not think that relaxation of Saucier’s man
date is likely to result in a proliferation of damages claims
18 PEARSON v. CALLAHAN
Opinion of the Court
against local governments. Compare Brief for Nat. Assn.
of Counties et al., as Amici Curiae 29, 30 (“[T]o the extent
that a rule permitting courts to bypass the merits makes it
more difficult for civil rights plaintiffs to pursue novel
claims, they will have greater reason to press custom,
policy, or practice [damages] claims against local govern
ments”). It is hard to see how the Saucier procedure could
have a significant effect on a civil rights plaintiff’s decision
whether to seek damages only from a municipal employee
or also from the municipality. Whether the Saucier proce
dure is mandatory or discretionary, the plaintiff will pre
sumably take into account the possibility that the individ
ual defendant will be held to have qualified immunity, and
presumably the plaintiff will seek damages from the mu
nicipality as well as the individual employee if the benefits
of doing so (any increase in the likelihood of recovery or
collection of damages) outweigh the litigation costs.
Nor do we think that allowing the lower courts to exer
cise their discretion with respect to the Saucier procedure
will spawn “a new cottage industry of litigation . . . over
the standards for deciding whether to reach the merits in
a given case.” Brief for Nat. Assn. of Counties et al. as
Amici Curiae 29, 30. It does not appear that such a “cot
tage industry” developed prior to Saucier, and we see no
reason why our decision today should produce such a
result.
IV
Turning to the conduct of the officers here, we hold that
petitioners are entitled to qualified immunity because the
entry did not violate clearly established law. An officer
conducting a search is entitled to qualified immunity
where clearly established law does not show that the
search violated the Fourth Amendment. See Anderson,
483 U. S., at 641. This inquiry turns on the “objective
legal reasonableness of the action, assessed in light of the
Cite as: 555 U. S. ____ (2009) 19
Opinion of the Court
legal rules that were clearly established at the time it was
taken.” Wilson v. Layne, 526 U. S. 603, 614 (1999) (inter
nal quotation marks omitted); see Hope v. Pelzer, 536 U. S.
730, 739 (2002) (“[Q]ualified immunity operates to ensure
that before they are subjected to suit, officers are on notice
their conduct is unlawful” (internal quotation marks
omitted)).
When the entry at issue here occurred in 2002, the
“consent-once-removed” doctrine had gained acceptance in
the lower courts. This doctrine had been considered by
three Federal Courts of Appeals and two State Supreme
Courts starting in the early 1980’s. See, e.g., United
States v. Diaz, 814 F. 2d 454, 459 (CA7), cert. denied, 484
U. S. 857 (1987); United States v. Bramble, 103 F. 3d 1475
(CA9 1996); United States v. Pollard, 215 F. 3d 643, 648–
649 (CA6), cert. denied, 531 U. S. 999 (2000); State v.
Henry, 133 N. J. 104, 627 A. 2d 125 (1993); State v. Johns
ton, 184 Wis. 2d 794, 518 N. W. 2d 759 (1994). It had been
accepted by every one of those courts. Moreover, the
Seventh Circuit had approved the doctrine’s application to
cases involving consensual entries by private citizens
acting as confidential informants. See United States v.
Paul, 808 F. 2d, 645, 648 (1986). The Sixth Circuit
reached the same conclusion after the events that gave
rise to respondent’s suit, see United States v. Yoon, 398
F. 3d 802, 806–808, cert. denied, 546 U. S. 977 (2005), and
prior to the Tenth Circuit’s decision in the present case, no
court of appeals had issued a contrary decision.
The officers here were entitled to rely on these cases,
even though their own Federal Circuit had not yet ruled
on “consent-once-removed” entries. The principles of
qualified immunity shield an officer from personal liability
when an officer reasonably believes that his or her conduct
complies with the law. Police officers are entitled to rely
on existing lower court cases without facing personal
liability for their actions. In Wilson, we explained that a
20 PEARSON v. CALLAHAN
Opinion of the Court
Circuit split on the relevant issue had developed after the
events that gave rise to suit and concluded that “[i]f judges
thus disagree on a constitutional question, it is unfair to
subject police to money damages for picking the losing side
of the controversy.” 526 U. S., at 618. Likewise, here,
where the divergence of views on the consent-once
removed doctrine was created by the decision of the Court
of Appeals in this case, it is improper to subject petitioners
to money damages for their conduct.
Because the unlawfulness of the officers’ conduct in this
case was not clearly established, petitioners are entitled to
qualified immunity. We therefore reverse the judgment of
the Court of Appeals.
It is so ordered.