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Comments
CARYN J. ACKERMAN*
Fairness or Fiction:  Striking a
Balance Between the Goals of
? 1983 and the Policy Concerns
Motivating Qualified Immunity
Qualified immunity inspires an assortment of metaphors asscholars and judges strive to capture its effect on civil
rights in the United States.  Some commentators envision quali-
fied immunity as a necessary evil, while others identify the doc-
trine as a vice suffocating the protection of civil rights.
Regardless of how one views qualified immunity, it can hardly be
denied that if left unfettered, the doctrine persistently threatens
the promise of 42 U.S.C. ? 1983?that all persons have a remedy
by law when public officials deprive them of rights secured by the
Constitution and laws of this country.1  As a result, the impor-
tance of maintaining a careful watch over this judicially created
doctrine cannot be overstated.  However, the Supreme Court has
consistently left unanswered the question of which precedent is
relevant to the clearly established law inquiry?the second step
in the qualified immunity analysis; consequently, the lower courts
have developed their own standards in regard to whether they
will consider extracircuit precedent.  Leaving this aspect of the
doctrine ill-defined weakens ? 1983 and its ability to deter civil
rights infringements.  This Comment argues that a categorical ex-
* J.D. Candidate, University of Oregon School of Law, 2007.  Managing Editor,
Oregon Law Review, 2006-2007.  I am grateful to my parents, Jack and Connie Ack-
erman, and my grandparents, Bob and Nelda Williams, for their unwavering love
and support.  I would also like to thank Laura Althouse for her helpful comments
and encouragement on this Comment.
1 See  42 U.S.C. ? 1983 (2000).
[1027]
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clusion of extracircuit precedent alters the delicate balance be-
tween the goals of ? 1983 and the policy concerns motivating
qualified immunity.
Qualified immunity is arguably one of the most significant ob-
stacles for ? 1983 plaintiffs.2  It provides a shield from litigation
and civil damages for government officials performing discretion-
ary functions so long as they could have reasonably believed that
their conduct was consistent with the alleged victim?s clearly es-
tablished rights.3  The question that plagues all who encounter
qualified immunity has become:  what makes a right clearly es-
tablished?  The first answer to that question came with Anderson
v. Creighton, in which the Court defined clearly established law
as follows:
The contours of the right must be sufficiently clear that a rea-
sonable official would understand that what he is doing vio-
lates that right.  This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say that
in light of pre-existing law the unlawfulness must be
apparent.4
Thus, on a most basic level, requiring that the law be clearly es-
tablished on the date of the official?s conduct functions as a no-
tice requirement?the issue is whether a reasonable official
would have understood, based on preexisting case law, that what
he was doing was wrong.
However, the test for whether a right is clearly established has
continued to take on many forms, especially in regard to the req-
uisite preexisting law.  Among the aspects of the test that have
changed are the relevance of state decisional law,5 the necessary
level of factual similarity between the relevant precedent and the
present issue,6 and whether federal circuit courts should look to
all available decisional law in the absence of binding intracircuit
2 See infra text accompanying notes 17-21. R
3 See Anderson v. Creighton, 483 U.S. 635, 638-39 (1987).  The Court in Anderson
vacated a judgment denying qualified immunity to a federal law enforcement officer
who had carried out an unlawful search because the officer could have reasonably
believed that the search was lawful. Id. at 641, 646.
4 Id. at 640 (citation omitted).
5 See generally Richard B. Saphire, Qualified Immunity in Section 1983 Cases and
the Role of State Decisional Law, 35 ARIZ. L. REV. 621 (1993).
6 See, e.g., Saucier v. Katz, 533 U.S. 194, 201 (2001) (emphasizing that the inquiry
as to whether the law was clearly established ?must be undertaken in light of the
specific context of the case, not as a broad general proposition?) (emphasis added).
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precedent.7  This Comment focuses on the last of these consider-
ations:  more precisely, on whether extracircuit precedent should
be capable of clearly establishing the law such that qualified im-
munity could be denied.  However, because the requisite level of
factual similarity and the relevance of nonbinding precedent are
often substantially related, this Comment takes into account re-
cent Supreme Court cases regarding the requirements of factual
similarity.8  This Comment argues that although these cases clari-
fied the law on one aspect of qualified immunity in a manner that
seemed to favor plaintiffs, the balance is still tilted strongly in
favor of defendants.
Thus, Part I provides a brief overview of the background of
qualified immunity, including its development and the motiva-
tions behind its creation.  Part II examines the narrowest ap-
proach9 taken by any of the circuits in regard to the relevance of
extracircuit precedent by analyzing a case from the Eleventh Cir-
cuit.  This Part seeks to demonstrate how the Eleventh Circuit?s
rule excluding extracircuit precedent skews the qualified immu-
nity analysis too far in favor of defendants.  Part III examines
another case from the Eleventh Circuit, one that, in contrast to
the previous case, was decided after three significant Supreme
Court cases that forced courts of appeals to make significant
changes to their qualified immunity analyses.  Essentially, Parts
7 See, e.g., Michael S. Catlett, Note, Clearly Not Established:  Decisional Law and
the Qualified Immunity Doctrine, 47 ARIZ. L. REV. 1031 (2005) (providing an over-
view of the circuit courts? various approaches regarding extracircuit precedent);
Amanda K. Eaton, Note, Optical Illusions:  The Hazy Contours of the Clearly Estab-
lished Law and the Effects of Hope v. Pelzer on the Qualified Immunity Doctrine, 38
GA. L. REV. 661, 667, 681-90 (2004) (discussing whether case precedent from other
circuits can clearly establish the law, while arguing that the Supreme Court?s deci-
sion in Hope v. Pelzer restored the balance between ? 1983 plaintiffs and defendants
in the Eleventh Circuit); Jonathan M. Stemerman, Case Brief, Unclearly Establish-
ing Qualified Immunity:  What Sources of Authority May Be Used to Determine
Whether the Law Is ?Clearly Established? in the Third Circuit?, 47 VILL. L. REV.
1221 (2002) (examining the Third Circuit?s inability to articulate a clear standard for
consideration of extracircuit precedent).
8 See Saucier, 533 U.S. 194; Wilson v. Layne, 526 U.S. 603 (1999); infra Part III.A
(discussing Hope v. Pelzer, 536 U.S. 730 (2002)).
9 Under the narrowest approach, for the purposes of deciding whether the law was
clearly established at the time the deprivation occurred, the Eleventh Circuit consid-
ers only the decisions of the U.S. Supreme Court, the Eleventh Circuit, and the
highest court of the pertinent state.  Vinyard v. Wilson, 311 F.3d 1340, 1351-52 &
n.22 (11th Cir. 2002) (citing Marsh v. Butler County, 268 F.3d 1014, 1032 n.10 (11th
Cir. 2001)).  The Sixth Circuit employs a slightly broader standard, looking as well to
extracircuit precedent where there is extremely precise factual similarity.  Ohio Civil
Serv. Employees Ass?n v. Seiter, 858 F.2d 1171, 1177 (1988).
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1030 OREGON LAW REVIEW [Vol. 85, 1027
II and III seek to answer two primary questions:  First, does al-
lowing some circuits to narrowly define relevant precedent that
may clearly establish the law detrimentally affect plaintiffs to the
extent that the Supreme Court should itself articulate a binding
standard with more breadth?  And second, even if such a stan-
dard was at one time needed, did the Court?s recent decisions
render such a standard unnecessary?  This Comment argues that
a narrow standard creates an unwarranted disadvantage for
plaintiffs such that a uniform standard regarding the relevance of
extracircuit precedent is still vitally necessary.
Part IV argues that a standard approach among all circuits re-
quiring consideration of extracircuit precedent in the absence of
binding intracircuit precedent is crucial to the development of
civil rights jurisprudence.  Federal circuit courts that deny the rel-
evance of extracircuit precedent in determining clearly estab-
lished law significantly undercut not only plaintiffs? potential
successes on the merits, but also the core purposes of ? 1983:
vindicating and preventing constitutional deprivations that are
caused with the state?s imprimatur.  Finally, Part IV also briefly
considers the wisdom of the qualified immunity doctrine, gener-
ally, and its seeming inability to adequately balance the compet-
ing policy concerns backing plaintiffs and defendants,
respectively.
I
UNDERSTANDING QUALIFIED IMMUNITY AND
ITS IMPLICATIONS
Section 1983 provides a civil remedy for deprivations of consti-
tutional rights as a result of conduct under color of state law.
The statute provides in pertinent part:
Every person who, under color of any statute, ordinance, regu-
lation, custom, or usage, of any State or Territory or the Dis-
trict of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdic-
tion thereof to the deprivation of any rights, privileges, or im-
munities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .10
Originally enacted as the civil section of the Ku Klux Act,11 the
10 42 U.S.C. ? 1983 (2000).
11 Marshall S. Shapo, Constitutional Tort: Monroe v. Pape, and the Frontiers Be-
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statute was envisioned as one of great scope by both its propo-
nents and opponents.12  However, until Monroe v. Pape, the stat-
ute provided little redress for persons who had been deprived of
their rights at the hands of public officials.13 Monroe was essen-
tial because it was the case in which the Court resolved an impor-
tant question regarding the meaning of ?under color of,?
concluding that the phrase included actions taken by public offi-
cials in contravention of the law as well as pursuant to the law.14
However, despite this broadening of the statute?s scope, persons
deprived of their rights by public officials have continued to face
substantial hurdles in the path to achieving redress for those dep-
rivations.  The hurdles have included, though are not limited to,
sovereign immunity,15 absolute immunity,16 and qualified
immunity.
yond, 60 NW. U. L. REV. 277, 277 (1965).  The Ku Klux Act was debated against the
backdrop of the Reconstruction Era, following the Civil War Amendments, and en-
acted pursuant to the enforcement powers granted by the Fourteenth Amendment.
Id. at 279 & n.12.  An inextricable part of the Act?s background was ?the presence
of vigilante committees in a large section of the nation, defying laws, perhaps even
acting effectively as the law, and piling senseless brutality on lawless outrage.? Id. at
282.  The proponents of the Act cited numerous stories concerning the conduct of
the Ku Klux Klan and the exacerbation of the situation by the ?relative inaction of
state and local governments.? Id. at 280.  The Act was described as a means ?to
protect all persons in the United States in their civil rights, and to furnish the means
of their vindication.?  H.R. Con. Res., 42d Cong., 17 Stat. 13, 14 (1871).
12 Shapo, supra note 11, at 282 (?It is obvious from the words spoken on both
sides that the framers contemplated a bill of great scope.  They wished to expand
federal jurisdiction significantly as to offenses which generally had been considered
?local? ones.?).
13 Id. at 278 (pointing out that the Court?s decision in Monroe resulted in an ?ex-
plosion? of civil actions seeking a federal remedy pursuant to ? 1983); see Monroe v.
Pape, 365 U.S. 167 (1961), overruled in part by Monell v. Dep?t. of Soc. Servs., 436
U.S. 658 (1978).
14 Shapo, supra  note 11, at 295.
15 Sovereign immunity prohibits suits for damages against the states.  See Hans v.
Louisiana, 134 U.S. 1, 15-16 (1890) (holding that the Eleventh Amendment bars
suits brought against the state).  However, suits can be brought against state officials
in their individual capacities. See Ex parte Young, 209 U.S. 123, 159-60 (1908) (nar-
rowing the breadth of Hans  by holding that an official is stripped of his official
capacity when acting unconstitutionally).
16 See, e.g., Bogan v. Scott-Harris, 523 U.S. 44, 53-54 (1998) (holding that legisla-
tors have absolute immunity for actions taken in the sphere of legislative activity);
Briscoe v. LaHue, 460 U.S. 325, 344-46 (1983) (determining that police officer wit-
nesses have absolute immunity); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)
(holding that judges have absolute immunity unless there is a clear absence of all
jurisdiction); Imbler v. Pachtman, 424 U.S. 409, 427 (1976) (determining that prose-
cutors have absolute immunity for activities intimately associated with judicial
proceedings).
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1032 OREGON LAW REVIEW [Vol. 85, 1027
Absolute and qualified immunity are not distinguishable as to
the scope of immunity they each provide; when they are applica-
ble, both forms of immunity provide a complete shield against
litigation.17  The two immunities are better understood in terms
of the level of immunity they provide.18  Thus, although the exact
standard may differ depending on the type of public official, ab-
solute immunity generally provides immunity so long as the offi-
cial acted within the confines of his or her official duties.19  For
example, if a legislator is performing a legislative function or act,
he or she has absolute immunity from suit for those official ac-
tions.20  In contrast, public officials who are entitled to qualified
immunity will be denied immunity when they have violated the
plaintiff?s clearly established rights, even if they were acting in
their official capacity.  Therefore, the range of protected activity
is narrower for public officials who are entitled to qualified im-
munity than for those entitled to absolute immunity.
While sovereign immunity and absolute immunity are consid-
ered the most significant barriers to plaintiffs under ? 1983, quali-
fied immunity buttresses the stark landscape faced by plaintiffs.
At times, qualified immunity may seem more daunting than both
sovereign immunity and absolute immunity, both because of its
effectiveness and its pervasive availability in civil rights litigation.
That is, whereas sovereign and absolute immunity are likely to be
identified as barriers at the onset of a plaintiff?s investigation into
filing suit, determining whether a public official shall receive
qualified immunity may require extensive litigation. Thus, a
plaintiff must invest a tremendous amount of time and money
just to determine whether he or she can even pursue a claim.  As
a result, qualified immunity has expanded into one of the most
litigated and debated doctrines within this area of law.21
The Court?s first articulation of qualified immunity came in
Scheuer v. Rhodes, in which the Court explained that for some
officials, immunity would be qualified by the specific circum-
17 JOHN C. JEFFRIES, JR. ET AL., CIVIL RIGHTS ACTIONS: ENFORCING THE CON-
STITUTION 57, 68-69 (2000).
18 Id.
19 See  cases cited supra  note 16.
20 Bogan, 523 U.S. at 54 (holding that legislators have absolute immunity for ac-
tions taken in the sphere of legislative activity).
21 Karen M. Blum, Qualified Immunity:  A User?s Manual, 26 IND. L. REV. 187,
187 (1993).
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stances of the case.22  Granting absolute immunity to public offi-
cials in all circumstances would have been illogical and unfair in
light of Monroe; extending liability to include official conduct
that is contrary to the law necessarily implies that public officials
will be liable for their official conduct in at least some circum-
stances.23  However, the question today is whether the strength
with which the qualified immunity doctrine is applied results in
de facto exemption from liability for public officials,24 yet again
deteriorating the goals of ? 1983 to little more than rhetoric.
Qualified immunity is meant to balance ? 1983?s concerns of
prevention, compensation, and punishment with the competing
concerns of overdeterrence, conservation of government funds,
and fairness to defendants.25  Therefore, implementation of this
judicial doctrine requires courts to balance the goals of ? 1983
with the goals of qualified immunity.  However, it remains to be
seen whether such a balance can truly be achieved.  The difficulty
of this precarious balancing act lies in the imposing power of
qualified immunity.  The key to the power of qualified immunity
is that it acts as a complete shield against litigation for the public
official.26  Once a court establishes that qualified immunity ap-
22 416 U.S. 232, 243 (1974).
23 Id. (quoting Justice Douglas in Monroe v. Pape, 365 U.S. 167, 184 (1961))
(?Since [? 1983] included within its scope the ?misuse of power, possessed by virtue
of state law and made possible only because the wrongdoer is clothed with the au-
thority of state law,? government officials, as a class, could not be totally exempt, by
virtue of some absolute immunity, from liability under its terms.?).
24 See 2 SHELDON H. NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION:
THE LAW O F  SECTION 1983 ? 8:5, at 8-20 (4th ed. 2002) (arguing that the frequency
of summary judgment in favor of defendants on the basis of qualified immunity ren-
ders ?qualified immunity . . . the functional equivalent of absolute immunity?).
25 See Anderson v. Creighton, 483 U.S. 635, 638 (1987) (?When government offi-
cials abuse their offices, ?action[s] for damages may offer the only realistic avenue
for vindication of constitutional guarantees.?  On the other hand, permitting dam-
ages suits against government officials can entail substantial social costs, including
the risk that fear of personal monetary liability and harassing litigation will unduly
inhibit officials in the discharge of their duties.? (quoting Harlow v. Fitzgerald, 457
U.S. 800, 814 (1982))); Wood v. Strickland, 420 U.S. 308, 319-20 (1975) (?The impo-
sition of monetary costs for mistakes which were not unreasonable in the light of all
the circumstances would undoubtedly deter even the most conscientious school deci-
sionmaker from exercising his judgment independently, forcefully, and in a manner
best serving the long-term interest of the school and the students.?); see also 2
NAHMOD, supra note 24, ? 8:1, at 8-4; Craig T. Jones, Hope for Civil Rights:  Plain-
tiffs Are Starting to Feel the Effects of the Supreme Court?s Ruling in Hope v. Pelzer
as Courts Reexamine Qualified Immunity, TRIAL, Apr. 2004, at 38, 38.
26 Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (holding that denial of summary
judgment based on qualified immunity is subject to interlocutory appeal because
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1034 OREGON LAW REVIEW [Vol. 85, 1027
plies, the claim is dismissed.  As a result, qualified immunity not
only makes it more difficult for plaintiffs to achieve success on
the merits, but also denies them the opportunity to verify the
sufficiency of their allegations through procedures such as
discovery.27
Efforts by the Court to strike the right balance can be seen in
the cases that followed Scheuer.  For example, in Wood v. Strick-
land,28 the Court attempted to carve out a more defined test for
establishing qualified immunity.  In Wood, school board mem-
bers and school administrators faced ? 1983 claims by three fe-
male students who were expelled for the remainder of a
semester, a three-month period, after admitting to spiking punch
at a school event.29  In holding that qualified immunity as op-
posed to absolute immunity, should have been extended to the
defendants, the Court stated:
To be entitled to a special exemption from the categorical re-
medial language of ? 1983 . . . a school board member . . . must
be held to a standard of conduct based not only on permissible
intentions, but also on knowledge of the basic, unquestioned
constitutional rights of his charges.  Such a standard imposes
neither an unfair burden upon a person assuming a responsi-
ble public office requiring a high degree of intelligence and
judgment for the proper fulfillment of its duties, nor an unwar-
ranted burden in light of the value which civil rights have in
our legal system. Any lesser standard would deny much of the
promise of ? 1983.30
The Court?s attempt to balance the competing policy concerns
inherent in claims brought under ? 1983 resulted in its first signif-
icant framework for analyzing qualified immunity.  The test for
qualified immunity initially developed in Wood required two
parts, a subjective, or good faith, prong, and an objective prong
that called for a determination of whether a reasonable official
would have known that his or her conduct violated the plaintiff?s
rights.31
In Harlow v. Fitzgerald,32 the Court further refined the test for
qualified immunity provides ?immunity from suit rather than a mere defense to
liability?).
27 See id.
28 420 U.S. 308 (1975), overruled in part by Harlow v. Fitzgerald, 457 U.S. 800
(1982).
29 Id. at 311-12.
30 Id.  at 322.
31 Id.; 2 NAHMOD, supra  note 24, ? 8:1, at 8-5.
32 457 U.S. 800 (1982).
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qualified immunity.  Specifically, the Court eliminated the sub-
jective prong of the test.33  Pro-defendant sentiment seemed to
motivate the decision to eliminate the good faith prong of the
analysis34?the Court noted that litigation costs for public offi-
cials were substantially increased by the inclusion of the good
faith prong.35  Furthermore, the Court also sought to minimize
?disruption of government? and encourage the ?resolution of
many insubstantial claims.?36  In conclusion, the Court held that
public officials would be ?shielded from liability for civil dam-
ages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.?37  Although the current test for qualified
immunity primarily revolves around whether the law was clearly
established, the test again has two requirements:  (1) that the
plaintiff suffered a constitutional violation, and (2) that there was
a violation of a clearly established right.38
Federal courts of appeals apply a variety of approaches in de-
termining the relevance of extracircuit precedent to the question
of whether the right was clearly established.  The Eighth and
Ninth Circuits take the broadest approach.  These circuits look to
all available decisional law in the absence of binding precedent.39
33 Id.  at 819.  The Court stated:
By defining the limits of qualified immunity essentially in objective
terms, we provide no license to lawless conduct.  The public interest in
deterrence of unlawful conduct and in compensation of victims remains
protected by a test that focuses on the objective legal reasonableness of an
official?s acts.  Where an official could be expected to know that certain
conduct would violate statutory or constitutional rights, he should be made
to hesitate; and a person who suffers injury caused by such conduct may
have a cause of action.  But where an official?s duties legitimately require
action in which clearly established rights are not implicated, the public in-
terest may be better served by action taken ?with independence and with-
out fear of consequences.?
Id. (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)) (footnotes omitted).
34 See 2NAHMOD, supra  note 24, ? 8:5, at 8-16.
35 Harlow, 457 U.S. at 816.
36 Id.  at 818.
37 Id.
38 E.g., Wilson v. Layne, 526 U.S. 603, 609 (1999) (explaining that framing the
analysis in this order saves defendants from litigation in baseless claims and ?pro-
motes clarity in the legal standards for official conduct, to the benefit of both the
officers and the general public?).
39 See  Karen M. Blum, Section 1983:  Qualified Immunity, 714 PRACTISING L.
INST.LITIG. & ADMIN. PRAC. COURSE HANDBOOK SERIES 115, 357, 360 (2004) (cit-
ing Boyd v. Benton County, 374 F.3d 773, 781-83 (9th Cir. 2004), and Vaughn v.
Ruoff, 253 F.3d 1124, 1129, 1130 (8th Cir. 2001)).
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1036 OREGON LAW REVIEW [Vol. 85, 1027
The Ninth Circuit adds a further nuance to the rule, however,
where there are relatively few cases on point and none of them
are binding.40  In that instance, to ascertain whether the law is
clearly established, the court will make a determination as to the
likelihood that the Supreme Court or the Ninth Circuit would
have reached the same result in those cases.41  Taking a similarly
broad tact, the test in the Seventh Circuit asks whether the offi-
cial could have believed that his conduct was proper in light of
?all relevant sources of guidance to the law.?42  In contrast, the
Eleventh Circuit has continually taken the narrowest approach,
even with slight variations in response to the Supreme Court?s
decision in Hope.43  The Eleventh Circuit considers only binding
precedent in determining whether the right was clearly estab-
lished, taking into account only decisions of the Supreme Court,
the Eleventh Circuit, and the highest court in the state in which
the case arose.44
The Fourth and Sixth Circuits take approaches that are only
slightly varied from (and slightly less narrow than) that of the
Eleventh Circuit.  The Fourth Circuit employs a similar approach
to that of the Eleventh Circuit, ordinarily looking to decisions of
the Supreme Court, the Fourth Circuit, and the highest court in
the state in which the issue arose; however, unlike the Eleventh
Circuit, the Fourth Circuit will also look to a ?consensus of
cases? from other circuits, if such a consensus exists.45  The Sixth
Circuit employs a slightly different standard, looking to the deci-
sions of other courts when they ?point unmistakably to the un-
constitutionality of the conduct complained of and [are] so
clearly foreshadowed by applicable direct authority as to leave
no doubt in the mind of a reasonable officer that his conduct, if
challenged on constitutional grounds, would be found
40 See  Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985).
41 Id.
42 See  Blum, supra  note 39, at 356-57 (quoting Burgess v. Lowery, 201 F.3d 942,
944-46 (7th Cir. 2000)).
43 See infra Part III.C (discussing how the Eleventh Circuit standard regarding
nonbinding precedent has remained substantially unchanged for a large segment of
cases, in spite of the new framework articulated by the Eleventh Circuit in response
to Hope v. Pelzer, 536 U.S. 730 (2002), and Vinyard v. Wilson, 311 F.3d 1340 (11th
Cir. 2002)).
44 Vinyard, 311 F.3d at 1351 & n.22 (citing Marsh v. Butler County, 268 F.3d 1014,
1032 n.10 (11th Cir. 2001)).
45 See  Owens v. Lott, 372 F.3d 267, 279-80 (4th Cir. 2004), cert. denied, 543 U.S.
1050 (2005).
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wanting.?46
II
GIVING DEFENDANTS A HEAD START IN THE
ELEVENTH CIRCUIT
A. An Examination of Courson v. McMillian:  Adhering to a
Narrow Standard
This Part seeks to examine the effects of the narrow approach
taken by the Eleventh Circuit in regard to the relevance of ex-
tracircuit precedent in determining whether a public official?s
conduct violated clearly established law.  In 1991, the Eleventh
Circuit decided Courson v. McMillian47 and articulated its un-
willingness to consider nonbinding, extracircuit precedent. In
Courson, the court reversed the district court?s denial of sum-
mary judgment, holding that Lieutenant Jim Roy was entitled to
qualified immunity.48  The facts in Courson  were not extraordi-
nary or particularly egregious; instead, the case presented a fac-
tual scenario with a high likelihood of repetition.  The plaintiff,
Sharon Courson, was riding in a vehicle with two intoxicated
male companions at around 10:00 p.m. one evening.49  One of the
intoxicated men was driving when Roy pulled over the car for
speeding; Roy also suspected that the vehicle had been seen in
the vicinity of nearby marijuana fields.50  Because one of the men
became verbally abusive and belligerent to Roy, he requested
backup.51  As a result, by the time Courson?s companions were
arrested for resisting arrest, disorderly intoxication, obstruction
of justice, assault on law enforcement officers, and battery on a
police officer, three or four patrol cars were present at the
scene.52
After being arrested, Courson?s male companions were taken
away in a patrol car, but not before they refused to allow Cour-
son to use the car to return home.53  The car was then towed
away, leaving Courson without means to get home.54  Courson
46 Ohio Civil Serv. Employees Ass?n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988).
47 939 F.2d 1479 (11th Cir. 1991).
48 Id. at 1482.
49 Id.
50 Id.  at 1483.
51 Id.
52 Id. at 1483-84.
53 Id. at 1484 & n.7.
54 Id. at 1484.
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did not ask for a ride home, nor did Roy offer to give her one or
arrange for another patrol car to do so.55  Instead, Courson
walked to the guard house of a nearby resort and called a friend
to pick her up at about midnight.56  Courson brought a complaint
against Roy and the sheriff, alleging, in pertinent part, that Roy?s
conduct had violated her Fourth, Fifth, and Fourteenth Amend-
ment rights due to use of excessive force57 and abandonment.58
The court explained that in order to avoid summary judgment,
Courson must show that the defendant was ?not entitled to quali-
fied immunity legally or that there is a genuine issue of material
fact regarding the defendant?s conduct as being violative of the
clearly established law governing the case.?59  The framework ap-
plied by the Eleventh Circuit called for a determination of
whether the public official acted within his scope of authority,
and if so, the burden shifted to the plaintiff to demonstrate that
the defendant?s conduct violated clearly established law.60  The
court would then evaluate the second part of the framework us-
ing two analytical subparts:  (1) ?whether the applicable law was
clearly established when the governmental action in question oc-
curred,? and (2) ?whether there is a genuine issue of fact con-
cerning [whether] the government official?s conduct [was] in
violation of [that] clearly established law.?61
After evaluating Courson?s other claims, the court reached the
issue of whether she had made the requisite showing to defeat
Roy?s claim to qualified immunity as to the abandonment claim.
The court stated simply:
No Supreme Court or Eleventh Circuit precedent existed in
May, 1985, concerning a law enforcement officer?s abandoning
a passenger in a vehicle which was impounded and the other
occupants arrested.  Under qualified immunity analysis in this
circuit, Roy is entitled to qualified immunity because a law en-
forcement officer cannot be held to a standard of conduct
55 Id. at 1484 n.7.
56 Id. at 1484-85.
57 This analysis will focus only on the court?s discussion of the abandonment
claim.
58 Courson, 939 F.2d at 1485.
59 Id. at 1487.
60 Id.
61 Id. at 1487-88.  This framework appears in reverse order to the order estab-
lished by the Supreme Court in Wilson v. Layne, 526 U.S. 603 (1999), in which the
Court mandated that courts first determine whether a violation occurred, and then
determine if that violation was of clearly established law. See infra text accompany-
ing notes 79-89.
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which is unsettled by the Supreme Court or this circuit . . . .62
The court conceded that its ?analytical result may be viewed as
harsh from a humanitarian perspective,?63 but before making this
concession, the court acknowledged extracircuit decisional law
on the same subject in an extensive footnote.64  This acknowledg-
ment is perplexing considering the court?s standpoint on extracir-
cuit precedent.  One can surmise that the court?s willingness to
identify contrary decisions from the Ninth and Seventh Circuits65
stemmed in part from its desire to point to a Tenth Circuit deci-
sion,66 based on far more egregious facts,67 with a conclusion sim-
ilar to its own.68
Another possibility for the inclusion of this analysis of extracir-
cuit precedent can be found in the court?s paraphrasing of the
holding from the Tenth Circuit?s decision in Hilliard v. City &
County of Denver:  ?The Hilliard court found that the fact that
[the Seventh and Ninth Circuits] had found a constitutional duty
on the part of officers who abandoned passengers in cars when
the driver was arrested and the car impounded represents the
essence of a legal question whose answer is not clearly estab-
lished.?69  Here, the court seems to imply that the existence of
differing opinions among the courts of appeals as to whether the
law is clearly established settles the question.  That is, the diver-
gence of outcomes necessarily renders the law not  clearly estab-
62 Courson, 939 F.2d at 1497-98 (footnote omitted).  Note that this excerpt from
the court?s analysis also identifies the required factual similarity for clearly establish-
ing the law. See id.  To clearly establish the law so that the court could reasonably
expect that a reasonable officer in Roy?s position would have understood that what
he was doing violated Courson?s rights, the precedent had to identify nearly the
same factual scenario as that experienced by Courson. See id.  Thus, a case decided
prior to May 1985 must have demonstrated the unlawfulness of abandoning a pas-
senger where the vehicle was impounded and the other occupants arrested. See id.
at 1497.
63 Id. at 1498.
64 Id. at 1497 n.31.
65 The court discusses Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), and White
v. Rochford, 592 F.2d 381 (7th Cir. 1979).
66 See Hilliard v. City & County of Denver, 930 F.2d 1516 (10th Cir. 1991).
67 The court in Courson paraphrased the experience of the plaintiff in Hilliard as
follows:  ?After the determination that the female passenger was too intoxicated to
drive, the car in which she and her arrested companion were riding was impounded,
and she was left in a high crime area.  She subsequently was sexually assaulted and
found the next morning naked, bleeding and barely conscious.?  939 F.2d at 1497
n.31.
68 See id. at 1497 n.31.
69 Id. (internal quotation marks omitted) (quoting Hilliard, 930 F.2d at 1520).
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1040 OREGON LAW REVIEW [Vol. 85, 1027
lished.  Furthermore, at least in the Eleventh Circuit, even a
consensus of cases on one side would not be able to overcome
the presumption presented by the divergence.  Does such a stan-
dard promote the goals of either ? 1983 or qualified immunity?
It seems clear that anything short of compensation and vindica-
tion for violations of constitutional rights does not serve the goals
of ? 1983.  However, the more difficult question is whether this
standard truly promotes the goals of qualified immunity.  If the
Eleventh Circuit?s rule fails to serve the goals of qualified immu-
nity, while simultaneously undermining the goals of ? 1983, such
a rule should not be tolerated.
B. The Eleventh Circuit?s Rule Does Little to Fulfill the
Purposes of Qualified Immunity
If qualified immunity has the dual purposes of ensuring that
defendants had constructive notice and weeding out frivolous
claims, we might expect that a state actor would only be immune
from litigation when one or both of these purposes is served.
Thus, applying these themes to Courson, we may ask whether it
makes sense to extend qualified immunity to a defendant like
Lieutenant Roy.  Roy?s conduct was not particularly egregious?
he did not hurt the plaintiff, or even deny a request for a ride
home.  Very simply, he failed to offer Courson a ride or ensure
that she got home safely.  As a result, the outcome in this case
may seem fair.70  Courson endured little actual harm from her
encounter with the police.71  In fact, she may have had difficulty
demonstrating any damages, assuming she could win on the mer-
its.  That is, even in the absence of the Eleventh Circuit?s rule,
Courson still would have faced a significant challenge in attempt-
70 However, the fairness of finding Roy liable for damages and the fairness of
granting him immunity from litigation are distinct issues.
71 One should note that the actual harm endured by the plaintiff as a result of the
defendant?s conduct should not matter at this stage in the litigation.  The resulting
harm should only be considered as to establishing damages.  Under ? 1983, the in-
jury is the violation itself; to establish a prima facie case the plaintiff need only
demonstrate that the defendant caused the deprivation of a legally cognizable right.
Yet, one cannot ignore the court?s insinuation as it calmly noted:
Courson lost no time from work as a result of this incident.  She testified
that she was not physically injured during her detention by Roy, that she
suffered no physical consequences, and that she had no medical treatment
and received no medication for any condition resulting from this incident.
Courson?s only residual effect from the experience is her claimed mistrust
of police officers.
Courson, 939 F.2d at 1485 (footnotes omitted).
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ing to defeat qualified immunity.  As a result, excluding extracir-
cuit precedent contributes minimally to the doctrine?s ability to
serve its purposes because they are already adequately served by
the requirements of factual similarity and the actual occurrence
of a deprivation.
First, Courson probably would have had great difficulty meet-
ing the factual similarity requirement.  She would have had to
establish that her facts and those of White v. Rochford,72 from
the Seventh Circuit, were similar enough to allow White  to
clearly establish the law.73  Yet White may have been distinguish-
able from Courson?s case because it involved minor children.74
In addition, Courson would have had to persuade the court to
follow the Ninth Circuit?s decision in Wood v. Ostrander75 as op-
posed to the Tenth Circuit?s decision in Hilliard.76  Although
neither case could have been used to clearly establish the law
because both were decided after Courson?s encounter with
Roy,77 the two cases present contrasting interpretations of
whether  White  could clearly establish the law in Courson?s
circumstances.
Second, even if Courson could have demonstrated a clearly es-
tablished right not to be abandoned by police, she would have
had to persuade the court that Roy?s conduct violated that
clearly established right.  The court could have held that even if
there is a right not to be abandoned by the police, that right does
not place on patrol officers an affirmative duty to offer and pro-
vide a ride home when a ride is not requested.  Therefore, Cour-
72 592 F.2d 381 (7th Cir. 1979).
73 See supra note 65 and accompanying text (noting the court?s discussion of
White).
74 592 F.2d at 382 (denying qualified immunity to police officer defendants after
they left three minor children in a vehicle along a Chicago freeway upon arresting
their uncle for drag racing, despite the uncle?s pleas that the police give the children
a ride home).
75 879 F.2d 583 (9th Cir. 1989); see also supra note 65 and accompanying text.
76 Compare  Hilliard v. City & County of Denver, 930 F.2d 1516, 1518 (10th Cir.
1991) (granting qualified immunity because the law was not clearly established
where the plaintiff?s companion was arrested for driving under the influence of in-
toxicants and the plaintiff was ordered not to drive due to her own intoxication and
left by police in a high crime area where she was found in the morning after being
raped), with Wood, 879 F.2d at 586, 591 (denying qualified immunity because the
law was clearly settled where a woman was left without mode of transportation in a
high-crime area after police arrested her companion for driving under the influence
and impounded the car).
77 See Hilliard, 930 F.2d 1516 (decided in 1991); Wood, 879 F.2d 583 (decided in
1989).
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1042 OREGON LAW REVIEW [Vol. 85, 1027
son may not have seen the balance tip momentously in her favor
with a change of the Eleventh Circuit?s rule.
However, this is not to say that the Eleventh Circuit?s rule is of
no import.  Instead, because Courson?s case probably would have
had the same result regardless of whether the court?s analysis in-
cluded extracircuit precedent, one can infer that the goals of
qualified immunity are adequately served by its other doctrinal
elements.  Because the rule lacks both the intent and effect of
serving the goals of qualified immunity, it distorts the precarious
balance the Supreme Court has attempted to strike between the
goals of ? 1983 and the goals of qualified immunity.
III
SHIFTS IN THE LANDSCAPE OF QUALIFIED
IMMUNITY JURISPRUDENCE
A. Have the Supreme Court?s Recent Cases Modified the
Qualified Immunity Analysis to the Extent That a Sufficient
Equilibrium Has Been Reached?
The Supreme Court has decided three significant qualified im-
munity cases since the Eleventh Circuit made its ruling in Cour-
son.78  First, in Wilson v. Layne, the Court made clear that
qualified immunity analysis requires a particular procedural or-
der.79  In evaluating a claim for qualified immunity, a court must
first decide whether the plaintiff has suffered a deprivation of a
constitutional right, and then determine whether the right in
question was clearly established.80  The Court noted that this
framework spared defendants from drawn-out litigation when a
deprivation had not occurred and ?promote[d] clarity in the legal
standards for official conduct, to the benefit of both the officers
and the general public.?81  On first glance, framing the analysis in
this order may seem odd.  However, as the Court would later
emphasize more fervently in Saucier v. Katz,82 the framework?s
order was intended to underscore the increased level of difficulty
faced by one who progressed to the second step of demonstrating
78 See Hope v. Pelzer, 536 U.S. 730 (2002); Saucier v. Katz, 533 U.S. 194 (2001);
Wilson v. Layne, 526 U.S. 603 (1999).
79 Wilson, 526 U.S. at 609.
80 Id. (citing Conn v. Gabbert, 526 U.S. 286, 290 (1999)).
81 Id.
82 Saucier, 533 U.S. 194.
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2006] Fairness or Fiction 1043
that the law was clearly established.83  Furthermore, in the ab-
sence of such an order, courts could grant qualified immunity by
determining that the right was not clearly established without
ever answering the question of whether the defendant?s conduct
amounted to a deprivation.84  Thus, prior to Wilson, courts were
able to avoid making decisional law that created a clearly estab-
lished right.85
For example, in Wilson, the Supreme Court pointed out that
the Fourth Circuit had avoided the issue of whether the defen-
dant?s conduct86 had violated the Fourth Amendment.87  Instead,
the court had affirmed summary judgment based on qualified im-
munity because the defendant?s conduct allegedly violated a right
that was not clearly established.88  As a result, if the Supreme
Court had not granted certiorari, not only would the plaintiffs
have lost on summary judgment,89 but also the law would have
remained unsettled as to whether the actions of police in this cir-
cumstance violated the Fourth Amendment.  Therefore, although
the reasoning behind framing the analysis in this order was moti-
vated primarily by the desire to keep government officials from
enduring unwarranted litigation, the framework also benefits fu-
ture plaintiffs.
In 2001, the Supreme Court decided Saucier v. Katz, which re-
iterated the importance of deciding the issue of qualified immu-
83 See infra notes 90-95 and accompanying text.
84 See, e.g., Courson v. McMillian, 939 F.2d 1479 (11th Cir. 1991) (granting quali-
fied immunity without determining whether the defendant?s conduct constituted a
violation).
85 The Court noted in Saucier that one of the purposes of framing the analysis in
this order was to allow for the development of clearly established law. See 533 U.S.
at 201 (?The law might be deprived of this explanation [of whether defendant?s con-
duct constituted a violation] 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.?).
86 Wilson, 526 U.S. at 607-08 (noting that defendants were federal law enforce-
ment officers who had brought members of the media into the plaintiffs? home while
attempting to execute an arrest warrant for the plaintiffs? son).
87 Id. at 608.
88 Id.
89 Note that the plaintiffs in Wilson  still lost on the basis of qualified immunity.
Id. (affirming the judgment of the Fourth Circuit based on different reasoning).  Al-
though the Court determined that the defendant?s actions amounted to a Fourth
Amendment violation, id. at 614, the Court further held that ?it was not unreasona-
ble for a police officer in April 1992 to have believed that bringing media observers
along during the execution of an arrest warrant (even in a home) was lawful,? id. at
615.
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1044 OREGON LAW REVIEW [Vol. 85, 1027
nity using two distinct analytical steps.90  The Ninth Circuit had
conflated the two steps in this particular excessive force case.91
The court had erroneously determined that because both the
question of whether the officers used excessive force and the
question of whether the law was clearly established required a
determination of the objective reasonableness of the officers? ac-
tions, it was unnecessary to address the questions separately.92
However, the Ninth Circuit erred in more than just a procedural
way; according to the Supreme Court, the Ninth Circuit?s analysis
failed to distinguish the different levels of factual specificity re-
quired for each step in the qualified immunity framework.93  The
two steps in the analysis could not be collapsed into one because
?the question whether the right was clearly established must be
considered on a more specific level? than the question whether a
constitutional right was violated.94  In effect, this decision rein-
forced the factual specificity required for precedent to clearly es-
tablish the law; that is, the second step in the analysis must be
evaluated ?in light of the specific context of the case, not as a
broad general proposition.?95  Like Wilson, Saucier seemed to be
motivated by conservatism; however, in contrast to Wilson, Sau-
cier can be seen as nothing other than a detriment to plaintiffs.
The case seemed to substantially heighten the standard required
for plaintiffs to defeat qualified immunity?not only did the
framework consist of two distinct steps, but the Supreme Court
made clear that it intended the second step to be much more
difficult than the first.96  Thus, although plaintiffs would continue
to benefit from the framework?s contribution to the development
of clearly established law, the requisite factual similarity for the
90 533 U.S. at 200.
91 Id.
92 Id. at 199-200.
93 Id. at 200.
94 Id.
95 Id. at 201.
96 The Supreme Court stated:
In this litigation, for instance, there is no doubt that Graham v. Connor
clearly establishes the general proposition that use of force is contrary to
the Fourth Amendment if it is excessive under objective standards of rea-
sonableness.  Yet that is not enough. . . . The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation
he confronted.
Id. at 201-02 (emphasis added) (citations omitted).
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second step would be a considerable task for plaintiffs to
surmount.
The next year, in 2002, the Court slightly reined in the factual
specificity requirement with its decision in Hope v. Pelzer.97  The
Court faced an egregious set of facts that clearly stood in contrast
to the Eighth Amendment, applicable state law, and state prison
policies, yet the defendants had been granted qualified immunity
by the lower courts.98  Larry Hope, an inmate in the Alabama
prison system, had engaged in an altercation with a guard while
on a work squad in the summer of 1995.99  To punish Hope, the
guards handcuffed him, shirtless, to a hitching post100 for seven
hours.101  They gave him water only one or two times, and al-
lowed him no bathroom breaks.102  Additionally, to taunt Hope
about his thirst, one of the guards gave water to some dogs, and
then kicked over a water cooler near Hope.103  The Eleventh Cir-
cuit held that the first inquiry of the qualified immunity analysis
had been met:  the plaintiff had demonstrated that using the
hitching post to punish inmates violated the Eighth Amend-
ment.104  However, on the second inquiry, the court determined
that the precedent establishing a violation lacked the requisite
material similarity to clearly establish the law.105  Material simi-
larity was the standard used by the Eleventh Circuit for examin-
ing the factual similarity of preexisting law.  The court required
that ?the federal law by which the government official?s conduct
should be evaluated must be preexisting, obvious and mandatory,
and established, not by abstractions, but by cases that are materi-
ally similar to the facts in the case in front of us.?106
97 536 U.S. 730 (2002).
98 See id.
99 Id. at 734-35.
100 The Court noted that in 1995, Alabama was the only state that used hitching
posts to punish inmates for refusing to work or disrupting work squads. Id. at 733.
101 Id. at 734-35.  The Supreme Court found that because inmates placed on the
hitching post were forced to remain standing with their arms raised, being hand-
cuffed to the hitching post caused significant strain on the body. Id. at 735 n.2 (cit-
ing Austin v. Hopper, 15 F. Supp. 2d 1210, 1248 (M.D. Ala. 1998)).  In addition,
inmates tended to suffer substantial pain from burns when shackled to the hitching
post because the handcuffs and the post became hot from the sun. Id.  (citing Aus-
tin, 15 F. Supp. 2d at 1248).
102 Id.  at 735.
103 Id.
104 Id. at 736.
105 Id.
106 Id. (internal quotation marks omitted) (quoting Hope v. Pelzer, 240 F.3d 975,
981 (11th Cir. 2001)).
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1046 OREGON LAW REVIEW [Vol. 85, 1027
In response, the Supreme Court held that the ?materially simi-
lar? standard employed by the Eleventh Circuit placed a ?rigid
gloss on the qualified immunity standard? that was inconsistent
with Supreme Court precedent.107  The Court pointed to United
States v. Lanier,108 a case that involved 42 U.S.C. ? 242,109 the
criminal law counterpart to ? 1983.110  The Court in Lanier  had
determined that the defendants were entitled to ?fair warning?
that their conduct violated a constitutional right of the victim,
and that this standard was identical to the notice requirement for
qualified immunity.111  In Hope, the Court reemphasized the
identical nature of the notice requirements for the two stat-
utes.112  Because the notice requirements are identical, Lanier
establishes that material similarity is not always necessary:  even
in novel factual circumstances, officials can be on notice that
their conduct violates clearly established law.113  Furthermore,
analogous cases can clearly establish the law, even if the facts
differ somewhat between the prior case law and the circum-
stances at issue in the present case.
Although the Court struck down the Eleventh Circuit?s stan-
dard of material similarity because it interpreted the factual simi-
larity requirement too strictly, it did not address the Eleventh
Circuit?s rule regarding applicable precedent.114  Nevertheless,
some writers have argued, in effect, that Hope  mandated a
change not only in the Eleventh Circuit?s materially similar stan-
dard, but also in its rule excluding extracircuit precedent.115
107 Id. at 739.
108 520 U.S. 259 (1997).
109 Now codified at 18 U.S.C. ? 242 (2000), the criminal statute provides:  ?Who-
ever, under color of any law . . . willfully subjects any person . . . to the deprivation
of any rights, privileges, or immunities secured or protected by the Constitution or
laws of the United States . . . shall be fined under this title or imprisoned not more
than one year, or both . . . .?
110 Hope, 536 U.S. at 739-40.
111 Id. (citing Lanier, 520 U.S. at 270-71).
112 Id. at 740.
113 Id.  at 740-41.
114 See Hope, 536 U.S. 730; Christopher D. Balch, Is There Hope After Hope?
Qualified Immunity in the Eleventh Circuit, 54 MERCER L. REV. 1305, 1309 & n.36
(2003) (noting that the Eleventh Circuit?s standard restricting the relevant case law
was ?accepted without discussion? in Hope).
115 See, e.g., Eaton, supra  note 7, at 689-90 (arguing that the Court?s holding in
Hope ?created a broader, more flexible interpretation of clearly established law and
the jurisdictions from which it can be derived,? which, paired with the ruling that the
materially similar requirement was improper, corrected the pro-defendant imbal-
ance in the Eleventh Circuit).  Eaton bases her conclusion on the assertion that the
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However, it seems clear that the Court?s primary motivation in
Hope was to soften an analysis that had become far too strict.  In
fact, the outcome of Hope may actually be tied to one phrase in
the opinion, a phrase that relies more on common sense and hu-
manity than precedent:  ?The obvious cruelty inherent in this
practice should have provided respondents with some notice that
their alleged conduct violated Hope?s constitutional protection
against cruel and unusual punishment.?116  Thus, the Court seems
willing, at least, to caution courts against using the analysis so
strictly that defendants can be granted qualified immunity even
where their conduct is obviously wrong.
B. The Aftermath:  Evaluating the Eleventh Circuit?s Response
The focal point of the Eleventh Circuit?s response to the pre-
ceding cases is Vinyard v. Wilson, in which it unveiled a new
qualified immunity framework.117  As is required by Saucier, the
Eleventh Circuit evaluated a qualified immunity claim by first
looking to see whether the conduct alleged constituted a viola-
tion of the plaintiff?s rights, then proceeded to determine
whether the right was clearly established.118  After determining
holding in Hope relied on ?binding Eleventh Circuit precedent . . . and a consensus
of all other Circuits concerning the use of hitching posts as prison punishment.? Id.
at 688.  In support of this assertion, Eaton cites Hope  at pages 741-42. Id.  at 688
n.164.  However, the case law (excluding Supreme Court cases) relied on by the
Court in those pages of Hope  is limited to Gates v. Collier, 501 F.2d 1291 (5th Cir.
1974), which the Court notes is binding on the Eleventh Circuit because it was de-
cided prior to 1981. Hope, 536 U.S. at 742.  Eaton further states that the Court?s
holding was also based, in part, on ?the fact that no other circuit permitted the use
of the device,? citing pages 743-45 of Hope.  Eaton, supra note 7, at 688 & n.165.
However, although the Court acknowledges that Alabama was the only state using
hitching posts against inmates as of 1995, Hope, 536 U.S. at 733, the Court never
asserts that it is relying on this fact to support its holding, see Hope, 536 U.S. at 743-
46.  Instead, the Court states:
Even if there might once have been a question regarding the constitutional-
ity of this practice, the Eleventh Circuit precedent of Gates  and  Ort, as
well as the DOJ report condemning the practice, put a reasonable officer
on notice that the use of the hitching post under the circumstances alleged
by Hope was unlawful.
Id. at 745-46.  However, this analysis should not be taken as an assertion that Hope
and other Supreme Court cases do not point to a problem with the Eleventh Cir-
cuit?s approach.  Instead, it is simply an effort to point out that the Supreme Court
has not mandated a different approach.
116 Id. at 745; see also Balch,  supra  note 114, at 1310 (speculating briefly on
whether the decision is attributable to the egregiousness of the facts).
117 See  Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002).
118 Id. at 1346.
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1048 OREGON LAW REVIEW [Vol. 85, 1027
that the defendant?s conduct violated the plaintiff?s rights, the
court laid the groundwork for evaluating the second inquiry of
whether the right was clearly established.119  The court identified
three types of situations in which a court can say that a defendant
had notice or ?fair warning.?120
First, the court described a category of cases it labeled as ?ob-
vious clarity? cases, in which ?the words of a federal statute or
federal constitutional provision may be so clear and the conduct
so bad that case law is not needed to establish that the conduct
cannot be lawful.?121  Second, the court identified another type
of obvious clarity case that, in contrast to the first type, relies on
case law.122  Here, although the conduct does not, for example,
violate a constitutional provision on its face, the case law may
have articulated a broad legal principle that is not tied to the
particular set of facts and thus clearly establishes the law in the
current instance, such that the defendant had notice.123  Lastly,
when case law fails to provide a broad legal principle that can be
applied to the present facts, the court will look to case law that is
tied to the particular facts.124  Therefore, plaintiffs who cannot
put themselves into one of the first two categories find them-
selves in much the same place as the majority of plaintiffs before
Saucier and Hope. For these plaintiffs to demonstrate that the
defendant?s conduct violated a clearly established right, or that
he or she had notice, they must still be able to point to cases with
sufficient factual similarity to their own.125
119 Id. at 1350-52.
120 Id.
121 Id. at 1350.
122 Id. at 1351.
123 Id.  The court provides the following example:
[I]f some authoritative judicial decision decides a case by determining that
?X Conduct? is unconstitutional without tying that determination to a par-
ticularized set of facts, the decision on ?X Conduct? can be read as having
clearly established a constitutional principle:  put differently, the precise
facts surrounding ?X Conduct? are immaterial to the violation.
Id.
124 Id.
125 See id. at 1351-52 & n.22 (?[W]hen case law is needed to clearly establish the
law applicable to the pertinent circumstances, we look to decisions of the U.S. Su-
preme Court, . . . the Eleventh Circuit, and the highest court of the pertinent state.?
(internal quotation marks omitted) (quoting Marsh v. Butler County, 268 F.3d 1014,
1032 n.10 (11th Cir. 2001))).  It is important to note that because Marsh was decided
in 2001, it preceded the Supreme Court?s decision in Hope, which was decided in
2002.  Thus, the Eleventh Circuit did not interpret Hope  as mandating a change in
its rule.
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Thus, for most plaintiffs, Vinyard had no effect on the Elev-
enth Circuit?s rule.  Essentially, by carving qualified immunity
cases into three categories in which the law can be clearly estab-
lished, the court only slightly dwindled the number of cases that
will be affected by the rule.  The court noted that it believed that
most case law would fall into the third category because most
judicial precedent is tied to a particular set of facts.126  Further-
more, the court stated that there is a presumption against broad
legal principles; for case law of this type to clearly establish the
law, it must do so with such obvious clarity that ?every objec-
tively reasonable government official facing the circumstances
would know that the official?s conduct did violate federal law
when the official acted.?127  Thus, realistically, it seems that most
qualified immunity cases will fall into the first or the third
categories.
However, only rarely will cases fall into the first category; for a
case to fall into the first category, the facts must truly alarm the
court and clearly stand in contrast to a constitutional or statutory
right.  Thus, although Hope ensured that defendants whose con-
duct is clearly wrong and results in serious harm will likely not be
granted qualified immunity, most plaintiffs will still be left
searching for a factually similar case to establish that an objec-
tively reasonable officer would have known his or her conduct
was wrong.128  As a result, most plaintiffs will be in the same po-
sition they were in before Wilson, Saucier, and Hope: they will
still be bound to the Eleventh Circuit?s rule excluding extracir-
cuit precedent and will face a significant burden in proving that
the defendant had notice.
C. An Analysis of Grayden v. Rhodes:  Demonstrating the
Effects of the Eleventh Circuit?s Rule
In contrast to Sharon Courson?s case, which likely reached the
proper result regardless of the rule?s unfairness, Grayden v.
Rhodes129 clearly demonstrates the harsh consequences of the
Eleventh Circuit?s rule.  The Grayden plaintiffs brought due pro-
cess claims against the Chief of the City of Orlando?s Code En-
126 Id. at 1351-52.
127 Id. at 1351 (emphasis added).
128 Balch, supra note 114, at 1315-16 (arguing that Hope did not signal the demise
of qualified immunity as some, such as Justice Thomas, had speculated because most
litigants will find themselves in much the same position as litigants before Hope).
129 345 F.3d 1225 (11th Cir. 2003).
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1050 OREGON LAW REVIEW [Vol. 85, 1027
forcement Bureau for his failure to provide them with
contemporaneous notice of their right, as tenants, to appeal his
condemnation and eviction decisions.130  As a threshold matter,
the court determined that the plaintiffs were entitled to contem-
poraneous notice.131  Even if exigent circumstances justified evic-
tion without pre-deprivation notice, they did not justify eviction
without post-deprivation notice.132  The court reasoned that the
significant interests of the tenants in knowing immediately of
their right to appeal outweighed the interests of the govern-
ment.133  Specifically, knowing immediately of that right could
have had a considerable effect on the alternative housing ar-
rangements that the evicted tenants made.134  For example, some
tenants may have chosen to forgo making permanent, long-term
alternative plans with the hope that they would succeed in ap-
pealing the condemnation and eviction.135  The defendant argued
that the city ordinance granting a right to appeal constituted suf-
ficient statutory notice;136 however, the court held that based on
the exigent circumstances of the eviction, affirmative, contempo-
raneous notice was necessary to satisfy the plaintiffs? due process
rights.137
In making its determination on the first inquiry, the court re-
lied ?on the standard for notice established by the Supreme
Court in Mullane v. Central Hanover Bank & Trust Co., as well
as [its] practical understanding of statutory notice.?138  In doing
so, the court also rejected the applicability of Memphis Light,
Gas & Water Division v. Craft,139 which, according to the plain-
tiffs and the dissent,140 placed an affirmative duty on the defen-
dant to provide contemporaneous notice of the right to appeal.141
Rejecting Memphis Light as controlling precedent was important
because it laid the groundwork for the court?s willingness to
130 Id. at 1227.
131 Id. at 1237.
132 Id.  at 1237-38.
133 Id. at 1237.
134 Id.
135 Id.
136 Id. at 1238 n.18.
137 Id. at 1244.
138 Id. at 1242 (citation omitted).
139 436 U.S. 1 (1978).
140 See Grayden, 345 F.3d at 1250-51 (Birch, J., concurring in part and dissenting
in part).
141 See id. at 1240-42 (majority opinion).
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2006] Fairness or Fiction 1051
grant qualified immunity to the defendant.  Although the court
came to the same conclusion regarding contemporaneous notice
as the Court in Memphis Light, doing so while rejecting Memphis
Light  allowed the court to hold that the right was not clearly
established, and, therefore, that the defendant did not have fair
warning.142  In contrast, had the court deemed Memphis Light
the controlling case, it would have been hard-pressed to then
hold that Memphis Light did not clearly establish the law and
give fair warning to a reasonable code enforcement officer that
his conduct was unlawful.
Thus, although statutory notice was technically insufficient,
and relying on it constituted a deprivation of the plaintiffs? rights,
the court held that a reasonable code enforcement officer would
have believed that failing to post contemporaneous notice of the
tenants? right to appeal was lawful; therefore, the right was not
clearly established at the time of eviction.143  In reaching this sec-
ond conclusion, the court relied primarily on City of West Covina
v. Perkins, in which the Supreme Court upheld the sufficiency of
statutory notice.144  The court asserted that despite Supreme
Court cases pointing to a right to immediate post-deprivation no-
tice,145 one cannot deny that West Covina could have given a rea-
sonable code enforcement officer the impression that statutory
notice was sufficient.146  Lastly, the court disposed of a Sixth Cir-
cuit case on point, Flatford v. City of Monroe,147 noting that it
could not clearly establish the law.148  The plaintiffs argued that
although Flatford  could not clearly establish the law, it was par-
ticularly persuasive because it relied exclusively on Supreme
Court cases149 to determine that failure to provide post-depriva-
142 Id. at 1250-51 (Birch, J., concurring in part and dissenting in part).
143 Id. at 1244-45 (majority opinion).
144 Id. at 1240, 1245 (citing City of W. Covina v. Perkins, 525 U.S. 234 (1999)).
According to the Grayden court, in West Covina the Court upheld the sufficiency of
statutory notice in a case in which police officers had seized the plaintiffs? property
pursuant to a valid search warrant. Id.  at 1240.  The plaintiffs had unsuccessfully
attempted to retrieve their seized property, and they filed suit alleging that West
Covina had failed to provide adequate notice of the available remedies. Id.
145 The plaintiffs argued that Barry v. Barchi, 443 U.S. 55 (1979), and Fuentes v.
Shevin, 407 U.S. 67 (1972), require ?immediate post-deprivation notice of their right
to contest the condemnation.? Id. at 1245.  Note that at this point in the analysis,
the court also reiterated its rejection of Memphis Light.  Id.
146 Id.
147 17 F.3d 162 (6th Cir. 1994).
148 Grayden, 345 F.3d at 1245.
149 See  cases cited supra  note 145.
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1052 OREGON LAW REVIEW [Vol. 85, 1027
tion due process to emergency evictees had violated the plain-
tiffs? clearly established rights.150  The court rejected this
argument, distinguishing Flatford because that case did not con-
sider the effects of statutory notice as recognized by West Covina
and, further, it predated West Covina.151
The court?s disregard of Flatford?s importance is striking be-
cause the court?s analysis regarding the sufficiency of statutory
notice is entirely illogical, and it demonstrates that there remains
a substantial need for a rule mandating the consideration of ex-
tracircuit precedent.  First, in Flatford, the statutory notice was
inadequate under the circumstances and it was unreasonable for
the code enforcement officer to believe otherwise.152  Thus, per-
haps the Sixth Circuit never addressed statutory notice in that
case because it was not relevant due to its inherent inadequacy.
If a person has a right to contemporaneous  notice, statutory no-
tice could never be sufficient.153  Determining that the evictees
were due contemporaneous notice, the court necessarily had to
recognize that, under the circumstances, the plaintiffs could not
have been expected to suddenly become aware that a city ordi-
nance provided them with a right to appeal their emergency evic-
150 Grayden, 345 F.3d at 1245.
151 Id.
152 The Eleventh Circuit?s willingness to ignore Flatford is even more remarkable
when one examines the factual similarity of the two cases.  In Flatford, the city
building inspector had ordered an emergency eviction of the apartment building in-
habited by the plaintiffs after condemning the building as hazardous. Flatford, 17
F.3d at 165.  In contrast to the Eleventh Circuit, the Sixth Circuit held:
It is too plain for argument that the Flatfords, who were barred from enter-
ing their home, have at least a clearly-established right to process of the
sort . . . afforded to their landlord.  We hold that [the defendant]?s actions
were objectively unreasonable, and therefore affirm the district court?s de-
nial of qualified immunity . . . .
Id. at 169.
153 See Grayden, 345 F.3d at 1256 (Birch, J., concurring in part and dissenting in
part).  In particular, Judge Birch stated:
As my colleagues express so effectively, ?[t]he law does not entertain the
legal fiction that every individual has achieved a state of legal omnis-
cience,? or that every citizen ?know[s] all of the law all of the time.?  In-
deed, low-income tenants evicted from their homes without prior notice
cannot be charged with knowledge of narrow statutory procedures buried
deep within city ordinances . . . .
Id. (alterations in original) (quoting the majority opinion in Grayden, 345 F.3d at
1243).  According to the dissent, the majority answers this question by distinguishing
?the questions [of] whether and when such notice must be provided from the method
of delivering that notice, whether it be statutory or personal.? Id. at 1251.
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2006] Fairness or Fiction 1053
tion.154  Furthermore, because West Covina did not address
contemporaneous notice, the fact that Flatford  predated  West
Covina  should not have been dispositive.155  Nevertheless, the
court held that although the plaintiffs had a right to contempora-
neous notice of their right to appeal, the defendant would have
been reasonable in believing that statutory notice was sufficient.
Second, although the court touted its procedural bar mandat-
ing exclusion of Flatford, it also purported to give substantive
reasons for excluding the case.  Like the court in Courson,156 it
seemed unwilling to altogether ignore nonbinding precedent that
was on point.  In contrast to Courson, however, the court?s dis-
posal of the extracircuit case was not relegated to an extensive
footnote.157  Instead, the court distinguished the case in-text on
the two bases discussed above:  that it did not address statutory
notice and that it predated West Covina.158  But if Flatford sim-
ply could not clearly establish the law, distinguishing it away
seems unnecessary; that is, unless Flatford  clearly demonstrates
that the plaintiffs? interpretation of Memphis Light was well-
founded, the court had little reason for attempting to reinforce
the irrelevance of the case.159  Here, unlike the situation in Cour-
son, inclusion of extracircuit precedent may have compelled a
different result.160  Specifically, Flatford has the requisite factual
similarity to clearly establish the law?thus, giving fair warning
to the defendant?and it is consistent with Memphis Light, a
binding Supreme Court case.161  Therefore, the court?s dismissal
154 See id. at 1256 (distinguishing West Covina and arguing against the adequacy
of statutory notice).
155 See supra note 144 (explaining that West Covina addressed seizure of property
pursuant to a valid search warrant).  In attacking the majority?s reliance on West
Covina, Judge Birch highlighted the stark distinctions between the ?condemnation
order of an administrative officer in the context of a civil code violation and the
seizure of property by police grappling with the inherent exigencies of a criminal
homicide investigation.? Grayden, 345 F.3d at 1256 (Birch, J., concurring in part
and dissenting in part).  Judge Birch further noted that the situation in West Covina
lacked ?the sense of urgency and confusion associated with the permanent and irre-
trievable loss of a person?s home, land or other basic necessity.? Id.
156 See supra notes 63-69 and accompanying text.
157 See supra note 64 and accompanying text.
158 See Grayden, 345 F.3d at 1245.
159 See id. at 1251-52 & n.4 (Birch, J., concurring in part and dissenting in part).
160 See supra Part I.
161 See Grayden, 345 F.3d at 1251 n.4 (Birch, J., concurring in part and dissenting
in part) (?Under ?current American law,? the rule in Memphis Light is unmistakable.
Sister courts have held that those summarily evicted through condemnation proce-
dures are entitled to contemporaneous notice of their right to appeal.?) (citing
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1054 OREGON LAW REVIEW [Vol. 85, 1027
of Flatford  seems more than just thorough; it seems defensive.
The court?s desire to defend its dismissal of Flatford may have
been motivated, in part, by the dissent?s attack on the Eleventh
Circuit?s rule of exclusion.  In addition to finding error in the ma-
jority?s reliance on West Covina and its dismissal of Memphis
Light, as explained above, the dissent questioned the wisdom
and validity of the Eleventh Circuit?s rule.162  In summary, not
only can it be argued that Memphis Light should have controlled
in  Grayden, but also that Flatford convincingly supported the
plaintiffs? assertion that the right to contemporaneous notice
under these circumstances was clearly established.  Therefore,
qualified immunity should have been denied in Grayden.
IV
MAKING THE CASE FOR A UNIFORM APPROACH
This Comment acknowledges that qualified immunity furthers
important objectives of the judiciary.  Absent some type of quali-
fied immunity, ? 1983 would likely open the courts up to an on-
slaught of frivolous claims.  Qualified immunity also seeks to
shield public officials from litigation when a court determines
that they were not on notice that what they were doing was
wrong.  The wisdom of this approach is subject to many different
interpretations; however, one can hardly deny that federal courts
would find difficulty in managing dockets that could not be nar-
rowed in some way.  Furthermore, the costs of litigating every
claim brought against public officials would likely have a drastic
effect on already strained municipal and state budgets.  These
concerns should not be overlooked.  However, these concerns
should also not be allowed to override the purposes of ? 1983
itself.  Allowing federal circuit courts to implement an absolute
Flatford v. City of Monroe, 17 F.3d 162, 169 (6th Cir. 1994); McGee v. Bauer, 956
F.2d 730, 737-38 (7th Cir. 1992); and Wilson v. Health & Hosp. Corp., 620 F.2d 1201,
1214-15 (7th Cir. 1980)).
162 See id. Judge Birch stated the following in a footnote:
It is true that, thus far, we look only to our own precedent and the deci-
sions of the United States Supreme Court and the supreme court of the
relevant state in this circuit to determine whether law is clearly established.
Language in a number of fairly recent Supreme Court opinions, however,
has signaled a different approach.
Id. (citing Hope v. Pelzer, 536 U.S. 730, 747 n.13 (2002); Wilson v. Layne, 526 U.S.
603, 617 (1999); United States v. Lanier, 520 U.S. 259, 269 (1997); Elder v. Holloway,
510 U.S. 510, 516 (1994); Anderson v. Creighton, 483 U.S. 635, 646 (1987); and
Marsh v. Butler County, 268 F.3d 1014, 1031 n.9 (11th Cir. 2001)).
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2006] Fairness or Fiction 1055
rule excluding extracircuit precedent privileges the availability of
qualified immunity over the vindication of valid ? 1983 claims.
Excluding extracircuit precedent goes beyond that which is nec-
essary to weed out frivolous claims and ensure fairness to
defendants.
First, as demonstrated in Courson, the Eleventh Circuit?s rule
adds an unnecessarily harsh slant to the qualified immunity anal-
ysis.  Requiring close factual similarity to clearly settle the law, in
all but the most obviously unlawful circumstances, substantially
burdens most plaintiffs while also ensuring that defendants have
fair warning.  If factual similarity were insufficient as a means of
ensuring the goals of qualified immunity, it seems that the use of
the defense would have waned considerably in circuits that apply
a less stringent rule.  Furthermore, expanding the breadth of the
sources the courts may consider is not necessarily a detriment to
all defendants.  Specifically, the more cases a court considers, the
greater the chance that defendants will be able to point to cases
in contrast to the precedent proffered by plaintiffs.163
Second, few defendants ever have actual notice that they are
violating someone?s clearly established rights. Instead, the
clearly established law inquiry creates a fiction in which we ex-
pect that a reasonable official would have known that preexisting
case law prohibited his or her conduct.  In effect, the law assumes
that he or she had fair warning because the case law exists.  Such
an expectation is not unfamiliar; similarly, as to criminal defend-
ants, there is the oft-stated rule that ignorance of the law is no
excuse.164  This fiction can hardly be considered less fair simply
because it derives from extracircuit precedent that must still meet
the demands of factual similarity.  However, some people may
argue that it is unfair?questioning whether we should expect po-
163 R. George Wright, Qualified and Civic Immunity in Section 1983 Actions:
What Do Justice and Efficiency Require?, 49 SYRACUSE L. REV. 1, 19 (1998).  Ac-
cording to Professor Wright:
It may be tempting for courts to assume that the greater the number of
courts that may be looked to, the greater the protection of basic rights.
After all, the more courts that may be drawn upon, the more likely a factu-
ally and legally similar prior case has arisen.  Similar prior cases, of course,
are a primary way of clearly establishing the law.
A larger number of prior cases, from a wider range of separate jurisdic-
tions, is, however, a mixed blessing for civil rights plaintiffs.
Id.
164 For a brief comparison of notice in the criminal arena and under qualified
immunity, see Catlett, supra  note 7, at 1031-32.
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1056 OREGON LAW REVIEW [Vol. 85, 1027
lice officers, for example, to know about cases from all across the
country.  But again, this doctrine is not motivated merely by
practical expectations of fairness to defendants.  In reality, no-
tions of fairness and practicality compete under ? 1983.
For example, consider again the implication of Monroe v.
Pape.  This pivotal case opened up the breadth of the statute,
making public officials liable for deprivations of constitutional
rights so long as the deprivations occurred under color of state
law.  For the first time, the Court adhered to the plain language
of ? 1983, which mandates such breadth.165  However, Monroe
put public officials and public entities at great risk of financial
liability and put federal courts at great risk of being bogged down
by lawsuits.  Furthermore, the Court was greatly concerned by
the risk of overdeterrence, fearing that few people would risk
such liability to pursue a public service career.  The Court re-
sponded to these concerns with qualified immunity.  The Court
attempted to limit the number of suits that could achieve success
while simultaneously taking the risk that some meritorious claims
would fall to summary judgment.  Thus, practicality, more than
fairness, has motivated the Court?s effort to balance vindication
of plaintiffs? rights against its serious policy concerns.  Moreover,
if the Court is to trouble itself with fairness, perhaps it should
first think of what is fair to the people who have had their rights
deprived by public officials.  After all, the statute asks the Court
to do no less.  The statute itself provides no immunity; its plain
directive is that victims of such deprivations have a remedy by
law.166
However, qualified immunity does hinge, in part, on the fact
that we do not want to punish state actors whose duties require
them to make highly discretionary decisions unless they were on
notice that their conduct violated a person?s rights.167  In theory,
165 See supra notes 13-14 and accompanying text.
166 See  42 U.S.C. ? 1983 (2000).  The statute states in pertinent part:
Every person who, under color of [state law] subjects, or causes to be
subjected, any citizen of the United States or other person within the juris-
diction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress . . . .
Id.
167 See Hope v. Pelzer, 536 U.S. 730, 739 (2002) (?As we have explained, qualified
immunity operates to ensure that before they are subjected to suit, officers are on
notice their conduct is unlawful.? (internal quotation marks omitted) (quoting Sau-
cier v. Katz, 533 U.S. 194, 206 (2001))); Harlow v. Fitzgerald, 457 U.S. 800, 807
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2006] Fairness or Fiction 1057
the applicability of the defense comes down to a question of fair-
ness:  whether it is fair to hold X official accountable for violating
Y?s rights.  Accordingly, the articulation of the test has come to
revolve around the settled nature of Y?s rights rather than X?s
conduct.  We ask whether the law was clearly settled to the ex-
tent that we can reasonably expect X to have known that what he
or she was about to do was wrong, regardless of whether he or
she actually knew.168  Therefore, realistically, the geographic ori-
gin of the available decisional law is unlikely to relate to whether
the defendant can truly and fairly be expected to have known
that what he or she was doing violated someone?s rights.
Furthermore, as the Supreme Court has made clear by cutting
out the good faith prong of the analysis, qualified immunity is not
just about fairness; qualified immunity also serves the goals of
weeding out frivolous claims and minimizing disruption of gov-
ernment due to litigation.169  While these goals are certainly im-
portant arguments for the necessity of qualified immunity, they
should not be allowed to motivate the circumvention of liability
in meritorious claims.  Plaintiffs face a severe and unwarranted
disadvantage as a consequence of the Eleventh Circuit?s rule.
The result of this standard is nothing short of a deck stacked
against plaintiffs who have suffered verifiable injuries at the
hands of state actors.  Such a high standard for defeating quali-
fied immunity causes the doctrine itself to resemble the type of
systemic problem that ? 1983 was devised to combat.  As the
Court stated in Monroe, one of the aims of ? 1983 ?was to pro-
vide a federal remedy where the state remedy, though adequate
in theory, was not available in practice.?170  Yet for many plain-
tiffs in the Eleventh Circuit, it seems that qualified immunity
(1982) (noting that recognition of qualified immunity reflects an attempt to balance
the importance of a damages remedy to protect the rights of citizens with ?the need
to protect officials who are required to exercise their discretion and the related pub-
lic interest in encouraging the vigorous exercise of official authority?) (quoting Butz
v. Economou, 438 U.S. 478, 506 (1978)).
168 However, some judges draw a fine line, expecting state actors to be on notice
that their conduct is unlawful based on case law, yet not expecting them to analyze
the cases and make necessary distinctions. See  Wood v. Ostrander, 879 F.2d 583,
604 (9th Cir. 1989) (Carroll, J., dissenting) (?Just as the police officers are not held
to the standards of legal scholars, neither should they be expected to analyze and
parse an opinion (that they never heard of) utilizing the legal skills and reasoning of
an appellate judge.?) (emphasis added).
169 See supra notes 34-38 and accompanying text.
170 Monroe v. Pape, 365 U.S. 167, 174 (1961), overruled in part by Monell v.
Dep?t. of Soc. Servs., 436 U.S. 658 (1978).
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1058 OREGON LAW REVIEW [Vol. 85, 1027
transforms ? 1983 into a remedy that is itself available in theory,
but unavailable in practice.171  Therefore, a uniform standard
mandating the breadth of the clearly established law inquiry is
necessary to ensure that a judicially created doctrine does not
eviscerate ? 1983.
If the Supreme Court is to turn qualified immunity in a new
direction, it has two main options.  First, the Court could adopt a
standard already in place in one of the circuits.  For example, it
could adopt a relatively broad standard, like that of the Eighth
and Ninth Circuits, looking to all available decisional law in the
absence of binding precedent;172 the Sixth Circuit?s narrower
standard, considering nonbinding precedent only when it points
?unmistakably to the unconstitutionality of the conduct com-
plained of and [the decision was] so clearly foreshadowed by ap-
plicable direct authority as to leave no doubt in the mind of a
reasonable officer that his conduct, if challenged on constitu-
tional grounds, would be found wanting;?173 or the Fourth Cir-
cuit?s approach of looking to a consensus of cases from other
circuits, if one exists, in the absence of binding precedent.174
Second, the Court could modify or combine these approaches
to find the best balance.  For instance, pieces from the Fourth,
Sixth, and Ninth Circuits? approaches taken together may pro-
vide an ideal approach.  The Ninth Circuit?s rule includes a meth-
odology for approaching situations in which there is no binding
precedent and there are very few extracircuit cases on point.175
Where there are relatively few cases on point, and none of them
are binding, the Ninth Circuit makes a determination as to the
171 See Wright, supra note 163, at 32 (?The cost, in the broadest sense, to plaintiffs
of currently having no practical recourse for many violations of important federal
rights can rightly be said to be enormous.  This single striking fact should no longer
be minimized.?).
172 See, e.g., Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985).
173 Ohio Civil Serv. Employees Ass?n v. Seiter, 858 F.2d 1171, 1177 (6th Cir.
1988).  Note, however, that the Sixth Circuit could be considered narrower than the
Eleventh Circuit for reasons other than its relative openness to extracircuit prece-
dent. See  Stemerman, supra  note 7, at 1228 (?The strictest approach is that of the
Sixth Circuit . . . .?).  Specifically, the Sixth Circuit considers cases from the Supreme
Court, the Sixth Circuit, and the relevant district court. See Ohio Civil Serv. Em-
ployees Ass?n, 858 F.2d at 1177.  Therefore, in notable contrast to the Eleventh Cir-
cuit, it will not consider the decisions of the highest court of the state in which the
case arose. See id.
174 See Owens v. Lott, 372 F.3d 267, 279-80 (4th Cir. 2004), cert. denied, 543 U.S.
1050 (2005).
175 Capoeman, 754 F.2d at 1514.
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likelihood that it or the Supreme Court would have reached the
same result in the extracircuit case.176  Using this approach, the
Ninth Circuit is able to ensure that one or two anomalous cases
do not lead to a determination that the law was clearly estab-
lished when it may still be unsettled.  Such a result seems to be
one of the main motivations behind limiting extracircuit prece-
dent?s effect on the outcome of the clearly established law in-
quiry.177  Although the Sixth Circuit?s approach is narrower than
the Ninth Circuit?s approach, precisely defining the type of ex-
tracircuit precedent capable of clearly establishing the law, it at-
tempts to quell the fear that one atypical decision could clearly
establish the law.178  By combining these approaches, the Court
could develop a standard that diminishes this concern while al-
lowing extracircuit precedent that is on point to clearly establish
the law in the appropriate circumstances.
A combined approach could provide a framework that mirrors
the authoritative weight that should be given to the precedent.
Courts would first look to binding precedent from the Supreme
Court, the appropriate circuit court, decisions from the district
court in which the case arose, and the highest state court in the
state in which the case arose.  In the absence of binding prece-
dent, the courts would look to all available decisional law, taking
into account certain factors, including: whether a consensus of
cases points to a particular conclusion, the extent of the factual
similarity of the available decisional law, and the likelihood that
the Supreme Court or the pertinent circuit court would have
come to the same decision as that found in the prior cases.
176 See id.  Professor R. George Wright of the Cumberland School of Law at Sam-
ford University has noted the risks of such an approach.  Wright, supra note 163, at
20-22.  For example, the court could find cases that are on point upholding the right,
yet still hold that the right was not clearly established by stating that the Ninth Cir-
cuit or the Supreme Court would have come to a different conclusion as to those
prior decisions. Id. at 21.  Furthermore, the court could also conclude that although
the Ninth Circuit would have come to the same result, the Supreme Court would
have come to a contrary conclusion, and thus the right was not clearly established.
Id.   By combining the Ninth Circuit?s approach to the approaches of the Sixth and
Fourth Circuits, the goal is to alleviate some of these risks.
177 See Ohio Civil Serv. Employees Ass?n, 858 F.2d at 1176 (?A single idiosyn-
cratic opinion from the court of appeals for another circuit was hardly sufficient to
put the defendants on notice of where this circuit or the Supreme Court might come
out on the issue in question.?) (quoting Davis v. Holly, 835 F.2d 1175, 1182 (6th Cir.
1987)).  The Fourth Circuit?s approach, looking to extracircuit precedent only when
there is an existing consensus of cases on point, seems to be motivated by a similar
concern. See Owens, 372 F.3d at 279-80 (emphasis added).
178 See Ohio Civil Serv. Employees Ass?n, 858 F.2d at 1176.
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When a consensus of cases cannot be found, one or two novel
cases may clearly establish the law only to the extent that they
point unmistakably to the unconstitutionality of the conduct
complained of and to the extent that the decision was clearly
foreshadowed by applicable direct authority. Furthermore,
where a clear consensus of cases points in one direction, only
binding precedent, or a determination that the Supreme Court or
the applicable circuit court would have come to a contrary con-
clusion based on binding precedent, may establish that such a
consensus is misdirected.  Allowing a clear consensus of cases to
clearly establish the law seems entirely consistent with the
Court?s directive to determine on an essential level whether the
public official had fair warning that his or her conduct violated
someone?s rights.  If courts across the country have determined
that certain conduct violates a constitutional right, then it seems
illogical to argue that it would be unfair to reasonably expect the
official to be aware that his or her conduct was wrong.179
CONCLUSION
Although the approach described above is complex and mul-
tifaceted, its core principle is the abolishment of a bright-line rule
excluding extracircuit precedent from the clearly established law
inquiry.  Any new approach must diminish the ability of qualified
immunity to undercut the protection of constitutional rights pro-
vided by ? 1983.180  Therefore, even if the Court hesitates to pro-
vide an entire framework for evaluating the weight of the
available case law, which would, of course, be subject to varied
interpretations, the Court can take a rather simple step toward
179 See supra text accompanying note 164 and contiguous discussion (acknowl-
edging the argument that it is unfair to reasonably expect public officials to know of
cases that are decided in other jurisdictions).  Michael S. Catlett also suggests an
alternative approach that considers whether a consensus of cases exists. See Catlett,
supra  note 7, at 1055-62.
180 If the standard cannot be redefined to achieve a better balance, a more drastic
change may be necessary.  For example, Professor Wright has argued that qualified
immunity should be abolished, acknowledging the issue of applicable sources of au-
thority as one of qualified immunity?s many problems.  Wright, supra  note 163, at
29-33.  Professor Wright?s proposed alternative would involve expanding liability for
municipalities, while abolishing not only qualified immunity, but also all civil suits
against individual employee actors in their personal capacities. Id. at 29.  Instead,
such suits would be brought against the employing municipality. Id.  He asserts that
by revising the current law of municipal liability and abolishing qualified immunity,
fairness to all parties can be achieved without the inefficiencies and injustices of
qualified immunity. Id. at 30.
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2006] Fairness or Fiction 1061
softening another rigid gloss on the qualified immunity doc-
trine.181  This step may simply be a decision that states that the
Eleventh Circuit?s rule is too harsh, making clear that the Court
does not interpret the qualified immunity precedent to permit a
categorical exclusion of nonbinding precedent.182  While such a
decision would still leave lower courts to develop their own ana-
lytical standard and determine the weight to be given to extracir-
cuit precedent, it would be more consistent with the Court?s
efforts to achieve the appropriate balance in ? 1983 jurispru-
dence.183  Until the Court takes such action, lower courts are left
181 See  Hope v. Pelzer, 536 U.S. 730, 739 (2002) (labeling the Eleventh Circuit?s
previous standard of ?material similarity? a ?rigid gloss on the qualified immunity
standard?).
182 Such an argument is not implausible.  For example, the Fourth Circuit?s rule
derives from Wilson v. Layne, 526 U.S. 603, 617 (1999). Owens, 372 F.3d at 279.
Wilson  arguably supports the contention that the Court supports consideration of
extracircuit precedent.  526 U.S. at 617 (affirming the lower court?s order granting
qualified immunity to the defendants).  The Court in Wilson stated:
Petitioners have not brought to our attention any cases of controlling au-
thority in their jurisdiction at the time of the incident that clearly estab-
lished the rule on which they seek to rely, nor have they identified a
consensus of cases of persuasive authority such that a reasonable officer
could not have believed that his actions were lawful.
Id. (emphasis added).  Similarly, Judge Birch, dissenting in Grayden, cited several
Supreme Court cases addressing qualified immunity for the proposition that the
Eleventh Circuit?s rule is inconsistent with Supreme Court precedent.  Grayden v.
Rhodes, 345 F.3d 1225, 1251 n.4 (11th Cir. 2003) (Birch, J., concurring in part and
dissenting in part).  Among the cases cited by Judge Birch are:
Hope, 536 U.S. at 747 n.13 (noting in its qualified-immunity analysis that
there were ?apparently no decisions on similar facts from other Circuits?);
Wilson v. Layne, 526 U.S. 603, 617 (1999) (refusing to find that ?the law on
third-party entry into homes? was clearly established, in part because no
cases either in the relevant jurisdiction or  from ?a consensus of cases of
persuasive authority? had been presented); United States v. Lanier, 520
U.S. 259, 269 (1997) (observing that, although ?disparate decisions in vari-
ous Circuits might leave the law insufficiently certain even on a point
widely considered, such a circumstance may be taken into account in decid-
ing whether the warning [to government officials] is fair enough?); Id.  at
269 (stating that when ?applying the rule of qualified immunity,? the Court
has ?referred to decisions of the Courts  of Appeals when enquiring
whether a right was ?clearly established??) (emphasis added); Elder v. Hol-
loway, 510 U.S. 510, 516 (1994) (counseling a lower court to ?use its ?full
knowledge of its own [and other relevant] precedents?? in a qualified im-
munity analysis) (alteration in original) (emphasis added) (citation omit-
ted); Anderson v. Creighton, 483 U.S. 635, 646 (1987) (referring to ?current
American  law? when describing reasonableness for qualified immunity
purposes) (emphasis added).
Id.  (parallel citations omitted).
183 See supra notes 25-27 and accompanying text.
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with the power to undermine ? 1983?s promise of vindication for,
and deterrence of, civil rights deprivations caused with the impri-
matur of state law and power.