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 so long as they are committed in good faith.2 In Harlow v. Fitzgerald,3 the Supreme Court stated that some immunity is necessary for officials to effectively discharge their duties,4 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 Since then, the Harlow test has proven to be a vexing standard for courts and plaintiffs alike.6 Recently, in Bryan v. United States,7 the Third Circuit held that a constitutional right is not clearly established in the days immediately following a circuit decision recognizing the right.8 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 which arose from the search of a cabin aboard the Adventure of the Seas cruise ship.10 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 Whitted was decided on September 4, 2008,12 as the plaintiffs in Bryan were sailing through the Caribbean aboard the very same ship.13
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 Because two passengers had TECS entries related to drug smuggling, the officer created “lookouts”15 for the two travelers and one of their companions.16 The lookouts recommended a full cabin search.17
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 The searches did not reveal any contraband.19 The travelers filed suit in the District Court of the Virgin Islands, alleging Fourth Amendment Bivens20 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 (FTCA).
The United States District Court of the Virgin Islands granted summary judgment for all defendants.22 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 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 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 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 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
The Third Circuit affirmed.28 Writing for a unanimous panel, Judge Roth29 held that a legal principle is not clearly established one or two days after a decision is announced.30 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 Though the Whitted court held that “unsubstantiated information from TECS can establish reasonable suspicion,”32 Judge Roth declined to determine whether there was an underlying Fourth Amendment violation and disposed of the claim via the “clearly established” prong.33 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 Additionally, the law must “be particularized to the facts of the case” and “not defined at a high level of generality.”35
The court then analyzed whether the right was clearly established for officers in the specific circumstances of the defendants.36 First, Judge Roth considered the situation of the San Juan–based CBP officer who entered the “lookouts” that triggered the cabin searches.37 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 Next, Judge Roth considered the position of the St. Thomas–based CBP officers who executed the searches.39 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 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 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 Finally, the court declined to create a strict rule delineating exactly when a newly decided legal principle does become clearly established.43
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 through the quick termination of “insubstantial lawsuits.”45 When the Supreme Court first articulated an objective and subjective qualified immunity test in Wood v. Strickland,46 four Justices objected to the objective component as unfairly requiring government officials to understand constitutional law.47 In Harlow, a mere seven years later, the Court abolished the subjective test entirely.48 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 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
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 which declared that plaintiffs cannot allege a violation of abstract rights.52 In the thirty-seven years since Harlow, the Supreme Court has only twice found that an official’s conduct violated clearly established law.53 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 These decisions no doubt send a clear message to lower courts.55 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
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 The court reacted to the unique circumstances by rejecting a bright-line rule.58 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 inevitably requires “nuanced, fact-sensitive, case-by-case determinations involving the application of general legal principles to a particular context.”60 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 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 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 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 Of course, few people expect officers to read appellate opinions,65 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 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
Second, the principle could become clearly established only when the mandate issues and the decision is “final.”68 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 Third, the rule could be somewhere in between: a grace period of one week, or one month, before a law becomes clearly established.70 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 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 Qualified immunity has consistently evolved in favor of defendants,73 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 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.