When the complaining party in a lawsuit must clear multiple hurdles in order to obtain relief, does the judge need to decide them in any particular order? The answer is “sometimes.” See pages 20-23 of CJLF’s brief in Brown v. Davenport, presently pending in the U.S. Supreme Court.
In cases where a public employee (very often a police officer) is claimed to have violated someone’s rights and asserts qualified immunity, there was for eight years a “rigid order of battle rule.” The Supreme Court decided in Saucier v. Katz (2001) that judges must decide whether the plaintiffs’ allegations, if true, would amount to a constitutional violation before deciding whether that rule was “clearly established” so as to defeat the claim of qualified immunity. In Pearson v. Callahan (2009), the Court decided unanimously that the rule was a bad idea and dumped it. See this post.
John Ketchum has this article in the City Journal calling for the return of the Saucier rule. Though I supported dumping the rule, Ketchum does make some interesting points. Continue reading . . .