After a constitutional or statutory right is established, how long does it take for the right to be clearly established? For the purpose of the qualified immunity doctrine, the answer is not entirely clear. Qualified immunity protects most state and federal officials engaging in executive functions from liability for unconstitutional acts,1×1. See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). so long as they are committed in good faith.2×2. See Pierson v. Ray, 386 U.S. 547, 557 (1967). In Harlow v. Fitzgerald,3×3. 457 U.S. 800. the Supreme Court stated that some immunity is necessary for officials to effectively discharge their duties,4×4. See id. at 806. and implemented an objective qualified immunity inquiry that asks only whether the official’s conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.”5×5. Id. at 818. Thus, to defeat qualified immunity plaintiffs must show both that the right was violated and that it was clearly established at the time of the incident. See id. Since then, the Harlow test has proven to be a vexing standard for courts and plaintiffs alike.6×6. See Alan K. Chen, The Intractability of Qualified Immunity, 93 Notre Dame L. Rev. 1937, 1951 (2018) (explaining that qualified immunity “has been a nightmare for litigators and judges”); Charles R. Wilson, “Location, Location, Location”: Recent Developments in the Qualified Immunity Defense, 57 N.Y.U. Ann. Surv. Am. L. 445, 447 (2000) (“Wading through the doctrine of qualified immunity is one of the most morally and conceptually challenging tasks federal appellate court judges routinely face.”). Recently, in Bryan v. United States,7×7. 913 F.3d 356 (3d Cir. 2019). the Third Circuit held that a constitutional right is not clearly established in the days immediately following a circuit decision recognizing the right.8×8. Id. at 363. In Bryan, the court reached an outcome consistent with qualified immunity’s aim to protect officials from the burdens of litigation but engaged in a fact-sensitive analysis that is in tension with this goal. A bright-line rule declaring when a legal principle becomes clearly established would be more consistent with the motivating principles behind the qualified immunity doctrine.
The story of Bryan begins with another Third Circuit case, United States v. Whitted,9×9. 541 F.3d 480 (3d Cir. 2008). which arose from the search of a cabin aboard the Adventure of the Seas cruise ship.10×10. Id. at 482–83. In Whitted, the circuit held for the first time that border searches of cruise ship cabins are nonroutine and therefore require reasonable suspicion under the Fourth Amendment.11×11. Id. at 489. Whitted was decided on September 4, 2008,12×12. Id. at 480. as the plaintiffs in Bryan were sailing through the Caribbean aboard the very same ship.13×13. See Bryan, 913 F.3d at 358.
On September 5, 2008, a Customs and Border Protection (CBP) officer based in San Juan, Puerto Rico, ran the Adventure of the Seas passenger list through the TECS electronic database as part of routine drug-smuggling enforcement.14×14. Id. at 358–59. “TECS is a database maintained by the Department of Homeland Security . . . [that] contains information about individuals and businesses suspected of, or involved in, violations of federal law.” IRS, Internal Revenue Manual § 188.8.131.52(1) (2018), https://www.irs.gov/irm/part5/irm_05-001-018r [https://perma.cc/D38Q-R9TG]. Because two passengers had TECS entries related to drug smuggling, the officer created “lookouts”15×15. A lookout entry “alerts CBP officers to specific passengers and recommends certain investigative steps when they are encountered.” Bryan, 913 F.3d at 359. for the two travelers and one of their companions.16×16. See id. The lookouts recommended a full cabin search.17×17. See id. The TECS report directed that the exam “would include body cavity searches.” Bryan v. United States, Civil Action No. 2010-0066, 2017 WL 781244, at *23 n.31 (D.V.I. Feb. 28, 2017). However, no such searches were conducted. Id.
On September 6, 2008, after the ship had docked in St. Thomas, U.S. Virgin Islands, a group of CBP officers knocked on the doors of the travelers’ two cabins, ordered them to get dressed in partial view of the officers, and searched the cabins with a drug-sniffing dog.18×18. Bryan, 913 F.3d at 360. The searches did not reveal any contraband.19×19. Id. The next day when the ship docked at San Juan, a different group of CBP officers initiated a search of the cabins but stopped upon learning of the earlier search. Id. at 360 n.9. The travelers filed suit in the District Court of the Virgin Islands, alleging Fourth Amendment Bivens20×20. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), provides a cause of action against federal officials for certain constitutional violations. See id. at 395–97. Federal officials sued under Bivens may be entitled to qualified immunity. Butz v. Economou, 438 U.S. 478, 507 (1978). claims against the CBP officer who input the lookout entry and the officers who conducted the searches as well as tort claims against the United States under the Federal Tort Claims Act21×21. 28 U.S.C. § 1346(b) (2012); Bryan, 913 F.3d at 360. The plaintiffs lodged three tort claims: “invasion of privacy/intrusion on seclusion . . . ; false imprisonment . . . ; and intentional infliction of emotional distress.” Bryan, 2017 WL 781244, at *26. Under the FTCA, the United States waived sovereign immunity for tort liability stemming from the actions of its employees, subject to several exceptions, including where the claim is “based upon the . . . performance [of] . . . a discretionary function,” even if that discretion is “abused.” Id. at *27 (quoting 28 U.S.C. § 2680(a)). (FTCA).
The United States District Court of the Virgin Islands granted summary judgment for all defendants.22×22. Bryan, 2017 WL 781244, at *1. Chief Judge Lewis acknowledged that the Bivens claim against the individual officers presented the court with a difficult, “seemingly unresolved” qualified immunity question due to the temporal proximity of the Whitted decision, the input of the lookout entries, and the cabin searches.23×23. Id. at *13. The FTCA issue was simpler: because the CBP officers were not obligated to search every passenger on the ship and their actions were “susceptible to policy analysis,” they were covered by the discretionary function exception and thus immune from suit. See id. at *30–31. The court began by analyzing whether the right was clearly established. First, Chief Judge Lewis explained that a “‘robust consensus of cases of persuasive authority’ in the Court of Appeals” was required to clearly establish a constitutional right and that Whitted could not provide the required “robust consensus.”24×24. Id. at *15 (quoting Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir. 2016)). Second, assuming Whitted alone could clearly establish a constitutional standard, the court determined that one to two days was not enough time to clearly establish “a completely new legal standard for conducting searches.”25×25. Id. at *17. Third, the court noted the obstacle presented by the question of the opinion’s finality: though the Whitted opinion was issued on September 4, 2008, a mandate was not issued until March 25, 2009.26×26. Id. at *18. In the Third Circuit, “[a]n appellate court’s decision is not final until its mandate issues.” Id. (quoting Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 97 (3d Cir. 1988)). “The mandate of the appellate court is the order directing the action to be taken or disposition to be made of the cause by the lower court, returning the proceedings to the lower court, and reinvesting it with jurisdiction thereof.” 5 C.J.S. Appeal and Error § 1140 (2019); see also Fed. R. App. P. 41. For all of these reasons, the court granted qualified immunity to the officers, dismissed the Bivens claims, and noted that, even if the law had been clearly established, the officers satisfied the reasonable suspicion requirement and the search was conducted in a reasonable manner.27×27. Bryan, 2017 WL 781244, at *19, *23.
The Third Circuit affirmed.28×28. Bryan, 913 F.3d at 358. Writing for a unanimous panel, Judge Roth29×29. Judge Roth was joined by Judges Krause and Fisher. held that a legal principle is not clearly established one or two days after a decision is announced.30×30. Bryan, 913 F.3d at 363. At the outset, the court noted that it could either “determine whether a constitutional right was violated or in the alternative, whether that right was clearly established.”31×31. Id. at 362 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). Though the Whitted court held that “unsubstantiated information from TECS can establish reasonable suspicion,”32×32. Id. (citing United States v. Whitted, 541 F.3d 480, 490 (3d Cir. 2008)). Judge Roth declined to determine whether there was an underlying Fourth Amendment violation and disposed of the claim via the “clearly established” prong.33×33. See id. The court began its analysis by explaining that, to be clearly established, a right must be “sufficiently definite” such that “any reasonable official in the defendant’s shoes” would have known he was violating it, and existing precedent must have put the constitutional issue “beyond debate.”34×34. Id. (quoting Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)). Additionally, the law must “be particularized to the facts of the case” and “not defined at a high level of generality.”35×35. Id. (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)).
The court then analyzed whether the right was clearly established for officers in the specific circumstances of the defendants.36×36. Id. at 362–63. First, Judge Roth considered the situation of the San Juan–based CBP officer who entered the “lookouts” that triggered the cabin searches.37×37. Id. at 363. The court determined that the September 5 lookout entries did not violate clearly established law because Puerto Rico is located in the First Circuit, where Whitted is not binding, and the First Circuit had not made a similar holding.38×38. See id. Next, Judge Roth considered the position of the St. Thomas–based CBP officers who executed the searches.39×39. Id. The court held that the law was also not clearly established for these officers because it was “beyond belief” that two days was enough time for the government to determine what was “reasonable suspicion” in the context of border searches, form a new policy to “conform to the [court’s] ruling,” and disseminate that policy to its border officials.40×40. Id. Moreover, Judge Roth noted that, had the St. Thomas–based officers been aware of Whitted, they would have understood that otherwise unsubstantiated TECS reports are sufficient to establish reasonable suspicion.41×41. Id. Judge Roth concluded by holding that a legal principle is not clearly established when a decision is announced, nor one or two days later.42×42. Id. Finally, the court declined to create a strict rule delineating exactly when a newly decided legal principle does become clearly established.43×43. See id. The court also disposed of the claims against the United States under the FTCA, affirming the district court’s conclusion that the entry of the “lookouts” and the cabin searches were discretionary acts that fell under the discretionary function exception to the FTCA. See id. at 364. The plaintiffs did not dispute that the CBP actions were discretionary, arguing instead that the United States was nonetheless liable because the officers violated their clearly established constitutional rights; given its qualified immunity ruling, the court quickly rejected this argument. See id.
One of the primary purposes of qualified immunity is to protect officials from the burdens of litigation. On its face, Bryan is consistent with this goal. However, by determining whether the law was clearly established for reasonable officers in the position of the particular defendants, the Third Circuit illuminated a tension between the doctrine’s goal of early case resolution and the fact-sensitive analysis that the objective reasonableness test requires. This tension could partially be resolved through a bright-line rule for how long it takes a right to become clearly established.
A principal goal of qualified immunity is to protect government officials from “undue interference with their duties”44×44. Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). through the quick termination of “insubstantial lawsuits.”45×45. Id. at 808 (quoting Butz v. Economou, 438 U.S. 478, 507 (1978)). When the Supreme Court first articulated an objective and subjective qualified immunity test in Wood v. Strickland,46×46. 420 U.S. 308 (1975) (holding that the relevant inquiry is whether the defendant “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury,” id. at 322). four Justices objected to the objective component as unfairly requiring government officials to understand constitutional law.47×47. Id. at 329 (Powell, J., concurring in part and dissenting in part). In Harlow, a mere seven years later, the Court abolished the subjective test entirely.48×48. See Harlow, 457 U.S. at 817–18. The change of heart was motivated by a realization that the subjective test allowed plaintiffs to avoid summary judgment based on “bare allegations of malice” and then subject government officials to the burdens of discovery and trial.49×49. Id. The Court determined that an objective test based on clearly established law would better avoid these burdens by permitting quick dismissal of claims on summary judgment, and instructed courts to allow discovery only after resolving the immunity question.50×50. Id. at 816–18.
The objective qualified immunity test presents a significant barrier to reaching discovery or trial. In particular, qualified immunity defeats many claims because of the exacting standard announced in Anderson v. Creighton,51×51. 483 U.S. 635 (1987). which declared that plaintiffs cannot allege a violation of abstract rights.52×52. Id. at 640 (explaining that the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right”). In the thirty-seven years since Harlow, the Supreme Court has only twice found that an official’s conduct violated clearly established law.53×53. William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 82 (2018); see also Groh v. Ramirez, 540 U.S. 551, 564 (2004); Hope v. Peltzer, 536 U.S. 730, 744 (2002). Recently, the Court has also made a number of summary reversals of qualified immunity denials, a practice that arguably “transforms the doctrine into an absolute shield for law enforcement officers.”54×54. Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting); see also White v. Pauly, 137 S. Ct. 548, 552–53 (2017) (per curiam); Mullenix v. Luna, 136 S. Ct. 305, 312 (2015) (per curiam); Taylor v. Barkes, 135 S. Ct. 2042, 2045 (2015) (per curiam); Carroll v. Carman, 135 S. Ct. 348, 352 (2014) (per curiam); Stanton v. Sims, 134 S. Ct. 3, 7 (2013) (per curiam). These decisions no doubt send a clear message to lower courts.55×55. Baude, supra note 53, at 84. Bryan’s resolution was commensurate with this trend and the goal of early termination of litigation: the case was dismissed on a motion for summary judgment.56×56. See Bryan v. United States, Civil Action No. 2010-0066, 2017 WL 781244, at *32 (D.V.I. Feb. 28, 2017). In this case, however, qualified immunity did not successfully shield the officers from discovery. Id. at *8. As a recent study demonstrates, qualified immunity rarely results in dismissal of cases before discovery, in part because — as here — suits against individual officers are often combined with other claims. See Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 55–56 (2017).
But the ease with which the Third Circuit dispatched this appeal belies the tension between the court’s fact-sensitive reasoning and qualified immunity’s goal of early dismissal of lawsuits. Compared to most qualified immunity cases, Bryan is atypical because there was no dispute that the Third Circuit had, in a case with nearly identical facts, established the right allegedly violated.57×57. Compare United States v. Whitted, 541 F.3d 480, 483–84 (3d Cir. 2008), with Bryan, 913 F.3d at 359–60. As the district court noted, the Supreme Court has never clarified whether “a right can be ‘clearly established’ by circuit precedent despite disagreement in the courts of appeals.” Bryan, 2017 WL 781244, at *14 (quoting Barkes, 135 S. Ct. at 2045). The court reacted to the unique circumstances by rejecting a bright-line rule.58×58. Bryan, 913 F.3d at 361–62. This maneuver demonstrates the tension inherent in the objective test: though qualified immunity is designed to quickly resolve insubstantial cases prior to discovery or trial, any inquiry involving a “reasonable official in the defendant’s shoes”59×59. Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). inevitably requires “nuanced, fact-sensitive, case-by-case determinations involving the application of general legal principles to a particular context.”60×60. Alan K. Chen, The Facts About Qualified Immunity, 55 Emory L.J. 229, 230 (2006). Though the facts of the officers’ situations were uncontested here, it is not difficult to imagine how plaintiffs could defeat summary judgment in an analogous situation. For example, there could be a dispute over whether the agency had a policy of circulating bulletins reporting developments in the law that affected their policies and practices, or whether the case involved officers who worked in the jurisdictions of multiple appellate circuits.61×61. The possibility of factual disputes likely depends on the nature of the case. For example, a material factual dispute is probably more likely to arise in a case like Bryan, a Bivens suit against federal officers where the plaintiffs argued that the right was clearly established in a suit the Department of Justice litigated, see Whitted, 541 F.3d at 482, than in a suit against a municipal police force where the plaintiffs argued that the right was clearly established in a case that a different local or state agency litigated. In the former situation, it is not beyond the realm of possibility, despite Judge Roth’s suggestion, that the Department of Justice could disseminate a bulletin to a relevant federal agency within one to two days — or even a few hours — of a decision that significantly affects the agency’s practice. See, e.g., Nicholas Kulishet et al., Court Temporarily Blocks Trump’s Travel Ban, and Airlines Are Told to Allow Passengers, N.Y. Times (Feb. 3, 2017), https://nyti.ms/2kxyLit [https://perma.cc/NL62-E8AT] (describing swift federal action in response to a nationwide injunction announced by a district court). Where the facts are disputed in similar cases, plaintiffs will have a strong argument that they are entitled to a trial to determine whether the circumstances of the individual officers made it unreasonable not to know of a recent relevant precedent.62×62. See Chen, supra note 6, at 1952–54; cf. Scheuer v. Rhodes, 416 U.S. 232, 242–43 (1974) (“If the immunity is qualified, not absolute, the scope of that immunity will necessarily be related to facts as yet not established either by affidavits, admissions, or a trial record.”). In cases like Bryan, a bright-line rule might be more consistent with Harlow’s goal by allowing courts to resolve cases on summary judgment based on the temporal gap between the decision establishing a right and the alleged violation, rather than on the individual circumstances of the officers involved.
Whether a bright-line rule would strengthen qualified immunity protections depends on its form, and this comment does not aim to determine exactly where the line should be drawn. However, Bryan suggests a few possibilities. First, a legal principle could become clearly established immediately upon the release of an opinion.63×63. Cf. Ware v. Heyne, 575 F.2d 593, 595 (7th Cir. 1978) (finding that a Seventh Circuit decision clearly established a law despite not having been published in West’s advance sheets until two months after the event in question). Such a rule would be easily administrable and could encourage government agencies to develop procedures to keep employees abreast of developments in the law.64×64. Cf. Doby v. Hickerson, 120 F.3d 111, 113–14 (8th Cir. 1997) (denying qualified immunity for a prison physician’s conduct that occurred after the date of a Supreme Court decision establishing prisoners’ due process right to avoid the involuntary administration of antipsychotic drugs, in part because the state attorney general’s office amended its policies in anticipation of the ruling). Of course, few people expect officers to read appellate opinions,65×65. See John F. Preis, Qualified Immunity and Fault, 93 Notre Dame L. Rev. 1969, 1971 (2018). but concerns about unfairly requiring public officials to track developments in constitutional law may be assuaged by widespread indemnification that protects law enforcement officers from nearly all personal liability.66×66. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 890 (2014). Additionally, the “instant-establishment” rule could potentially be tempered by the exception in Harlow that allows qualified immunity where extraordinary circumstances prevent an official from knowing the relevant legal standard.67×67. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).
Second, the principle could become clearly established only when the mandate issues and the decision is “final.”68×68. Cf. Withers v. Levine, 615 F.2d 158, 163 (4th Cir. 1980) (granting qualified immunity for violation of a constitutional right announced but not yet published). This rule would also be easily administrable and would give officials ample time to learn of and adapt to changes in the law. However, it would likely overimmunize officials given the length of time that can elapse between the release of an opinion and the issuance of a mandate.69×69. See, e.g., Bryan v. United States, Civil Action No. 2010-0066, 2017 WL 781244, at *18 (D.V.I. 2017). Third, the rule could be somewhere in between: a grace period of one week, or one month, before a law becomes clearly established.70×70. Other courts of appeals faced with this question have hinted at different length requirements. See Robinson v. Bibb, 840 F.2d 349, 350 (6th Cir. 1988) (noting without deciding that a Supreme Court decision might not have been clearly established four days after it was issued); Schlothauer v. Robinson, 757 F.2d 196, 197–98 (8th Cir. 1985) (granting immunity notwithstanding on-point Eighth Circuit precedent handed down eleven days prior to an alleged Fourth Amendment violation). This rule would provide a compromise between instant-establishment and a lengthier mandate-establishment rule. However, it would be more arbitrary than a rule tied to the release of an opinion or mandate.
The “remarkable coincidence”71×71. Bryan, 913 F.3d at 361. of Bryan is unlikely to reoccur often, but when it does the court should apply a rule that favors immediate or very quick establishment of the law. A bright-line rule would be consonant with Harlow’s purpose of protecting government officials from the burdens of discovery in unmeritorious lawsuits and would also aid prospective plaintiffs in avoiding futile litigation. And a rule that swiftly establishes a law would be consistent with Harlow’s other goals of “deterr[ing] unlawful conduct and . . . compensat[ing] . . . victims.”72×72. Harlow, 457 U.S. at 819. Qualified immunity has consistently evolved in favor of defendants,73×73. Scott Michelman, The Branch Best Qualified to Abolish Immunity, 93 Notre Dame L. Rev. 1999, 2004 (2018). and the interval between a legal principle’s establishment and its clear establishment presents an opportunity — albeit a minor one — for courts to correct the imbalance by encouraging quick compliance with new constitutional mandates and holding public officials accountable for unconstitutional conduct.
No matter the future resolution of the Bryan conundrum, qualified immunity will remain a significant barrier to civil rights plaintiffs absent a dramatic reexamination of the doctrine by the Supreme Court.74×74. There are signs that some members of the Court are prepared to reconsider its qualified immunity jurisprudence. See Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting) (criticizing the “alarming signal” sent by the Court’s “one-sided approach to qualified immunity”); Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part and concurring in the judgment) (“In an appropriate case, we should reconsider our qualified immunity jurisprudence.”). At the very least, clarity as to the proper sources of clearly established law and the length of time required for a law to become clearly established would assist individuals in their evaluation of potential litigation and courts in their adjudication of suits to enforce constitutional and statutory rights.