OCTOBER TERM, 2000
Syllabus
SAUCIER
v. KATZ ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 99-1977. Argued March 20, 200l-Decided June 18,2001
Respondent Katz, president of respondent In Defense of Animals,
filed a suit pursuant to
Bivens v.
Six Unknown Fed.
Narcotics Agents, 403 U. S. 388, against,
inter alios,
petitioner Saucier, a military policeman. Katz alleged, among other
things, that Saucier had violated his Fourth Amendment rights by
using excessive force in arresting him while he protested during
Vice President Gore's speech at a San Francisco army base. The
District Court declined to grant Saucier summary judgment on
qualified immunity grounds. In affirming, the Ninth Circuit made a
two-part qualified immunity inquiry. First, it found that the law
governing Saucier's conduct was clearly established when the
incident occurred. It therefore moved to a second step: to
determine if a reasonable officer could have believed, in light of
the clearly established law, that his conduct was lawful. The court
concluded that this step and the merits of a Fourth Amendment
excessive force claim are identical, since both concern the
objective reasonableness of the officer's conduct in light of the
circumstances the officer faced at the scene. Thus, it found,
summary judgment based on qualified immunity was inappropriate.
Held:
1. A qualified immunity ruling requires an analysis not
susceptible of fusion with the question whether unreasonable force
was used in making the arrest. The Ninth Circuit's approach cannot
be reconciled with
Anderson v.
Creighton, 483 U. S. 635. A
qualified immunity defense must be considered in proper sequence. A
ruling should be made early in the proceedings so that the cost and
expenses of trial are avoided where the defense is dispositive.
Such immunity is an entitlement not to stand trial, not a defense
from liability.
Mitchell v.
Forsyth, 472 U. S. 511, 526. The
initial inquiry is whether a constitutional right would have been
violated on the facts alleged, for if no right would have been
violated, there is no need for further inquiry into immunity.
However, if a violation could be made out on a favorable view of
the parties' submissions, the next, sequential step is whether the
right was clearly established. This inquiry must be undertaken in
light of the case's specific context, not as a broad general
proposition. The relevant, dispositive inquiry is whether it would
be clear to a rea-
195
sonable officer that the conduct was unlawful in the situation
he confronted. See
Wilson v.
Layne, 526 U. S. 603, 615. The
Ninth Circuit's approach-to deny summary judgment if a material
issue of fact remains on the excessive force claim-could undermine
the goal of qualified immunity to avoid excessive disruption of
government and permit the resolution of many insubstantial claims
on summary judgment.
Harlow v.
Fitzgerald, 457 U. S. 800, 818. If
the law did not put the officer on notice that his conduct would be
clearly unlawful, summary judgment based on qualified immunity is
appropriate. The Ninth Circuit concluded that qualified immunity is
duplicative in an excessive force case, thus eliminating the need
for the second step. In holding that qualified immunity applied in
the Fourth Amendment context just as it would for any other
official misconduct claim, the
Anderson Court rejected the
argument that there is no distinction between the reasonableness
standard for warrantless searches and the qualified immunity
inquiry. In an attempt to distinguish
Anderson, Katz claims
that the subsequent
Graham v.
Connor, 490 U. S. 386, decision
set forth an excessive force analysis indistinguishable from
qualified immunity, thus rendering the separate immunity inquiry
superfluous and inappropriate in such cases. Contrary to his
arguments, the immunity and excessive force inquiries remain
distinct after
Graham. Graham sets forth factors relevant to
the merits of a constitutional excessive force claim, which include
the severity of the crime, whether the suspect poses a threat to
the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.
Id., at 396. If an
officer reasonably, but mistakenly, believed that a suspect was
likely to fight back, for instance, the officer would be justified
in using more force than in fact was needed. The qualified immunity
inquiry's concern, on the other hand, is to acknowledge that
reasonable mistakes can be made as to the legal constraints on
particular police conduct. An officer might correctly perceive all
of the relevant facts, but have a mistaken understanding as to
whether a particular amount of force is legal in those
circumstances. pp. 200-207.
2. Petitioner was entitled to qualified immunity. Assuming that
a constitutional violation occurred under the facts alleged, the
question is whether this general prohibition was the source for
clearly established law that was contravened in the circumstances.
In the circumstances presented to petitioner, which included the
duty to protect the Vice President's safety and security from
persons unknown in number, there was no clearly established rule
prohibiting him from acting as he did. This conclusion is confirmed
by the uncontested fact that the force used-dragging Katz from the
area and shoving him while placing
196
Syllabus
him into a van-was not so excessive that Katz suffered hurt or
injury. pp. 207-209.
194 F.3d
962, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined,
and in which SouTER, J., joined as to Parts I and II. GINSBURG, J.,
filed an opinion concurring in the judgment, in which STEVENS and
BREYER, JJ., joined,
post, p. 209. SOUTER, J., filed an
opinion concurring in part and dissenting in part,
post, p.
217.
Deputy Solicitor General Clement argued the cause for
petitioner. On the briefs were former Solicitor General Waxman,
Acting Solicitor General Underwood, Assistant Attorney General
Ogden, Jeffrey A. Lamken, Barbara L. Herwig, and Edward
Himmelfarb.
J.
Kirk Boyd argued the cause for respondents. With him
on the brief was
David H. Williams.*
*Briefs of
amici curiae urging reversal were filed for
the State of Texas et al. by
John Cornyn, Attorney General
of Texas,
Andy Taylor, First Assistant Attorney General,
Gregory S.
Coleman, Solicitor General, and
Lisa R.
Eskow, Assistant Solicitor General, joined by the Attorneys
General for their respective States as follows:
Bill Pryor
of Alabama,
Bruce M. Botelho of Alaska,
Mark Pryor of
Arkansas,
Bill Lockyer of California,
Ken Salazar of
Colorado,
Richard Blumenthal of Connecticut,
M. Jane
Brady of Delaware,
James E. Ryan of Illinois,
Richard
P. Ieyoub of Louisiana, J.
Joseph Curran, Jr., of
Maryland,
Thomas F.
Reilly of Massachusetts,
Mike
Moore of Mississippi,
Joseph P. Mazurek of Montana,
Don Stenberg of Nebraska,
Eliot Spitzer of New York,
Heidi Heitkamp of North Dakota,
Betty D. Montgomery
of Ohio,
W A. Drew Edmondson of Oklahoma,
Hardy Myers
of Oregon,
D. Michael Fisher of Pennsylvania,
Charles M.
Condon of South Carolina,
Mark Barnett of South Dakota,
Paul G.
Summers of Tennessee,
Jan Graham of
Utah,
William H. Sorrell of Vermont, and
Christine Q
Gregoire of Washington; for the Grand Lodge of the Fraternal Order
of Police by
Tom Rutherford; and for the National
Association of Police Organizations et al. by
Stephen R.
McSpadden.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
David Rudovsky,
Michael Avery, Ruth E. Harlow, Steven R. Shapiro, and
Alan
L. Schlosser; and for the Association of the Bar of the City of
New York by
Leon Friedman and
Ronald J.
Tabak.
197
JUSTICE KENNEDY delivered the opinion of the Court.
In this case a citizen alleged excessive force was used to
arrest him. The arresting officer asserted the defense of qualified
immunity. The matter we address is whether the requisite analysis
to determine qualified immunity is so intertwined with the question
whether the officer used excessive force in making the arrest that
qualified immunity and constitutional violation issues should be
treated as one question, to be decided by the trier of fact. The
Court of Appeals held the inquiries do merge into a single
question. We now reverse and hold that the ruling on qualified
immunity requires an analysis not susceptible of fusion with the
question whether unreasonable force was used in making the
arrest.
I
In autumn of 1994, the Presidio Army Base in San Francisco was
the site of an event to celebrate conversion of the base to a
national park. Among the speakers was Vice President Albert Gore,
Jr., who attracted several hundred observers from the military and
the general public. Some in attendance were not on hand to
celebrate, however. Respondent Elliot Katz was concerned that the
Army's Letterman Hospital would be used for conducting experiments
on animals. (Katz was president of a group called In Defense of
Animals. Although both he and the group are respondents here, the
issues we discuss center upon Katz, and we refer to him as
"respondent.") To voice opposition to the possibility that the
hospital might be used for experiments, respondent brought with him
a cloth banner, approximately 4 by 3 feet, that read "Please Keep
Animal Torture Out of Our National Parks." In the past, as
respondent was aware, members of the public had been asked to leave
the military base when they engaged in certain activities, such as
distributing handbills; and he kept the banner concealed under his
jacket as he walked through the base.
198
The area designated for the speakers contained seating for the
general public, separated from the stage by a waisthigh fence.
Respondent sat in the front row of the public seating area. At
about the time Vice President Gore began speaking, respondent
removed the banner from his jacket, started to unfold it, and
walked toward the fence and speakers' platform.
Petitioner Donald Saucier is a military police officer who was
on duty that day. He had been warned by his superiors of the
possibility of demonstrations, and respondent had been identified
as a potential protester. Petitioner and Sergeant Steven
Parker-also a military police officer, but not a party to the
suit-recognized respondent and moved to intercept him as he walked
toward the fence. As he reached the barrier and began placing the
banner on the other side, the officers grabbed respondent from
behind, took the banner, and rushed him out of the area. Each
officer had one of respondent's arms, half-walking, half-dragging
him, with his feet "barely touching the ground." App. 24.
Respondent was wearing a visible, knee-high leg brace, although
petitioner later testified he did not remember noticing it at the
time. Saucier and Parker took respondent to a nearby military van,
where, respondent claims, he was shoved or thrown inside.
Id., at 25. The reason for the shove remains unclear. It
seems agreed that respondent placed his feet somewhere on the
outside of the van, perhaps the bumper, but there is a dispute
whether he did so to resist. As a result of the shove, respondent
claims, he fell to the floor of the van, where he caught himself
just in time to avoid any injury. The officers drove respondent to
a military police station, held him for a brief time, and then
released him. Though the details are not clear, it appears that at
least one other protester was also placed into the van and detained
for a brief time.
Id., at 27.
Respondent brought this action in the United States District
Court for the Northern District of California against
199
petitioner and other officials pursuant to
Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),
alleging,
inter alia, that defendants had violated
respondent's Fourth Amendment rights by using excessive force to
arrest him. The District Court granted the defendants' motions for
summary judgment on the grounds of qualified immunity on all claims
other than the excessive force claim against Saucier. It held a
dispute on a material fact existed concerning whether excessive
force was used to remove respondent from the crowd and place him
into the van. App. to Pet. for Cert. 27a. The District Court held
that the law governing excessive force claims was clearly
established at the time of the arrest, and that "[i]n the Fourth
Amendment context, the qualified immunity inquiry is the same as
the inquiry made on the merits."
Id., at 29a-30a. As a
result, it ruled, petitioner was not entitled to summary judgment.
Id., at 30a.
In the United States Court of Appeals for the Ninth Circuit
petitioner filed an interlocutory appeal from the denial of
qualified immunity.
194 F.3d
962 (1999). The Court of Appeals affirmed, noting at the outset
its two-part analysis for qualified immunity questions. First, the
Court of Appeals considers "whether the law governing the
official's conduct was clearly established."
Id., at 967. If
it was not, that ends the matter, and the official is entitled to
immunity. If, however, the law was clearly established when the
conduct occurred, the Court of Appeals' second step is to determine
if a reasonable officer could have believed, in light of the
clearly established law, that his conduct was lawful.
Ibid.
As to the first step of its analysis, the court observed that
Graham v.
Connor, 490 U. S. 386 (1989),
sets forth the objective reasonableness test for evaluating
excessive force claims, a principle the Court of Appeals concluded
was clearly established for qualified immunity purposes. The court
then concluded that the second step of the qualified immunity
inquiry and the merits of the Fourth
200
Amendment excessive force claim are identical, since both
concern the objective reasonableness of the officer's conduct in
light of the circumstances the officer faced on the scene. 194 F.
3d, at 968. On this reasoning, summary judgment based on qualified
immunity was held inappropriate.
Id., at 968-969.
Saucier, represented by the Government of the United States,
sought review here, arguing the Court of Appeals erred in its view
that the qualified immunity inquiry is the same as the
constitutional inquiry and so becomes superfluous or duplicative
when excessive force is alleged. We granted certiorari, 531 U. S.
991 (2000).
II
The Court of Appeals ruled first that the right was clearly
established; and second that the reasonableness inquiry into
excessive force meant that it need not consider aspects of
qualified immunity, leaving the whole matter to the jury. 194 F.
3d, at 967. This approach cannot be reconciled with
Anderson
v.
Creighton, 483 U. S. 635 (1987),
however, and was in error in two respects. As we shall explain, the
first inquiry must be whether a constitutional right would have
been violated on the facts alleged; second, assuming the violation
is established, the question whether the right was clearly
established must be considered on a more specific level than
recognized by the Court of Appeals.
In a suit against an officer for an alleged violation of a
constitutional right, the requisites of a qualified immunity
defense must be considered in proper sequence. Where the defendant
seeks qualified immunity, a ruling on that issue should be made
early in the proceedings so that the costs and expenses of trial
are avoided where the defense is dispositive. Qualified immunity is
"an entitlement not to stand trial or face the other burdens of
litigation."
Mitchell v.
Forsyth, 472 U. S. 511, 526
(1985). The privilege is "an
immunity from suit rather than
a mere defense to lia-
201
bility; and like an absolute immunity, it is effectively lost if
a case is erroneously permitted to go to trial."
Ibid. As a
result, "we repeatedly have stressed the importance of resolving
immunity questions at the earliest possible stage in litigation."
Hunter v.
Bryant, 502 U. S. 224, 227 (1991)
(per curiam).
A court required to rule upon the qualified immunity issue must
consider, then, this threshold question: Taken in the light most
favorable to the party asserting the injury, do the facts alleged
show the officer's conduct violated a constitutional right? This
must be the initial inquiry.
Siegert v.
Gilley,
500 U. S. 226,
232 (1991). In the course of determining whether a constitutional
right was violated on the premises alleged, a court might find it
necessary to set forth principles which will become the basis for a
holding that a right is clearly established. This is the process
for the law's elaboration from case to case, and it is one reason
for our insisting upon turning to the existence or nonexistence of
a constitutional right as the first inquiry. The law might be
deprived of this explanation were a court simply to skip ahead to
the question whether the law clearly established that the officer's
conduct was unlawful in the circumstances of the case.
If no constitutional right would have been violated were the
allegations established, there is no necessity for further
inquiries concerning qualified immunity. On the other hand, if a
violation could be made out on a favorable view of the parties'
submissions, the next, sequential step is to ask whether the right
was clearly established. This inquiry, it is vital to note, must be
undertaken in light of the specific context of the case, not as a
broad general proposition; and it too serves to advance
understanding of the law and to allow officers to avoid the burden
of trial if qualified immunity is applicable.
In this litigation, for instance, there is no doubt that
Graham v.
Connor, supra, clearly establishes the
general
202
proposition that use of force is contrary to the Fourth
Amendment if it is excessive under objective standards of
reasonableness. Yet that is not enough. Rather, we emphasized in
Anderson "that the right the official is alleged to have
violated must have been 'clearly established' in a more
particularized, and hence more relevant, sense: The contours of the
right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right." 483 U. S.,
at 640. 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. See
Wilson v.
Layne, 526 U. S. 603, 615 (1999)
("[A]s we explained in
Anderson, the right allegedly
violated must be defined at the appropriate level of specificity
before a court can determine if it was clearly established").
The approach the Court of Appeals adopted-to deny summary
judgment any time a material issue of fact remains on the excessive
force claim-could undermine the goal of qualified immunity to
"avoid excessive disruption of government and permit the resolution
of many insubstantial claims on summary judgment."
Harlow v.
Fitzgerald, 457 U. S. 800, 818 (1982). If the law did not
put the officer on notice that his conduct would be clearly
unlawful, summary judgment based on qualified immunity is
appropriate. See
Malley v.
Briggs, 475 U. S. 335, 341 (1986)
(qualified immunity protects "all but the plainly incompetent or
those who knowingly violate the law").
This is not to say that the formulation of a general rule is
beside the point, nor is it to insist the courts must have agreed
upon the precise formulation of the standard. Assuming, for
instance, that various courts have agreed that certain conduct is a
constitutional violation under facts not distinguishable in a fair
way from the facts presented in the case at hand, the officer would
not be entitled to qualified immunity based simply on the argument
that courts
203
had not agreed on one verbal formulation of the controlling
standard.
The Court of Appeals concluded that qualified immunity is merely
duplicative in an excessive force case, eliminating the need for
the second step where a constitutional violation could be found
based on the allegations. In
Anderson, a warrantless search
case, we rejected the argument that there is no distinction between
the reasonableness standard for warrantless searches and the
qualified immunity inquiry. We acknowledged there was some "surface
appeal" to the argument that, because the Fourth Amendment's
guarantee was a right to be free from "unreasonable" searches and
seizures, it would be inconsistent to conclude that an officer who
acted unreasonably under the constitutional standard nevertheless
was entitled to immunity because he "'reasonably' acted
unreasonably." 483 U. S., at 643. This superficial similarity,
however, could not overcome either our history of applying
qualified immunity analysis to Fourth Amendment claims against
officers or the justifications for applying the doctrine in an area
where officers perform their duties with considerable uncertainty
as to "whether particular searches or seizures comport with the
Fourth Amendment."
Id., at 644. With respect, moreover, to
the argument made in
Anderson that an exception should be
made for Fourth Amendment cases, we observed "the heavy burden this
argument must sustain to be successful," since "the doctrine of
qualified immunity reflects a balance that has been struck 'across
the board.'"
Id., at 642 (quoting
Harlow v.
Fitzgerald, supra, at 821). We held that qualified immunity
applied in the Fourth Amendment context just as it would for any
other claim of official misconduct. 483 U. S., at 644.
Faced, then, with the heavy burden of distinguishing
Anderson and of carving out an exception to the typical
qualified immunity analysis applied in other Fourth Amendment
contexts, the primary submission by respondent in defense
204
of the Court of Appeals' decision is that our decision in
Graham v.
Connor, 490 U. S. 386 (1989),
somehow changes matters.
Graham, in respondent's view, sets
forth an excessive force analysis indistinguishable from qualified
immunity, rendering the separate immunity inquiry superfluous and
inappropriate. Respondent asserts that, like the qualified immunity
analysis applicable in other contexts, the excessive force test
already affords officers latitude for mistaken beliefs as to the
amount of force necessary, so that
"Graham has addressed for
the excessive force area most of the concerns expressed in
Anderson." Brief for Respondents 7. Respondent points out
that
Graham did not address the interaction of excessive
force claims and qualified immunity, since the issue was not
raised, see 490 U. S., at 399, n. 12; and respondent seeks to
distinguish
Anderson on the theory that the issue of
probable cause implicates evolving legal standards and resulting
legal uncertainty, a subject raising recurrent questions of
qualified immunity. By contrast, respondent says, excessive force
is governed by the standard established in
Graham, a
standard providing ample guidance for particular situations.
Finally, respondent adopts the suggestion made by one Court of
Appeals that the relevant distinction is that probable cause is an
ex post inquiry, whereas excessive force, like qualified
immunity, should be evaluated from an
ex ante perspective.
See
Finnegan v.
Fountain, 915 F.2d
817, 824,
These arguments or attempted distinctions cannot bear the weight
respondent seeks to place upon them.
Graham did not change
the qualified immunity framework explained in
Anderson. The
inquiries for qualified immunity and excessive force remain
distinct, even after
Graham.
In
Graham, we held that claims of excessive force in the
context of arrests or investigatory stops should be analyzed under
the Fourth Amendment's "objective reasonableness standard," not
under substantive due process principles.
205
490 U. S., at 388, 394. Because "police officers are often
forced to make split-second judgments-in circumstances that are
tense, uncertain, and rapidly evolving-about the amount of force
that is necessary in a particular situation," id., at 397, the
reasonableness of the officer's belief as to the appropriate level
of force should be judged from that on-scene perspective, id., at
396. We set out a test that cautioned against the "20/20 vision of
hindsight" in favor of deference to the judgment of reasonable
officers on the scene.
Id., at 393, 396.
Graham sets
forth a list of factors relevant to the merits of the
constitutional excessive force claim, "requir[ing] careful
attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade
arrest by flight."
Id., at 396. If an officer reasonably,
but mistakenly, believed that a suspect was likely to fight back,
for instance, the officer would be justified in using more force
than in fact was needed.
The qualified immunity inquiry, on the other hand, has a further
dimension. The concern of the immunity inquiry is to acknowledge
that reasonable mistakes can be made as to the legal constraints on
particular police conduct. It is sometimes difficult for an officer
to determine how the relevant legal doctrine, here excessive force,
will apply to the factual situation the officer confronts. An
officer might correctly perceive all of the relevant facts but have
a mistaken understanding as to whether a particular amount of force
is legal in those circumstances. If the officer's mistake as to
what the law requires is reasonable, however, the officer is
entitled to the immunity defense.
Graham does not always give a clear answer as to whether
a particular application of force will be deemed excessive by the
courts. This is the nature of a test which must accommodate
limitless factual circumstances. This reality serves
206
to refute respondent's claimed distinction between excessive
force and other Fourth Amendment contexts; in both spheres the law
must be elaborated from case to case. Qualified immunity operates
in this case, then, just as it does in others, to protect officers
from the sometimes "hazy border between excessive and acceptable
force,"
Priester v.
Riviera Beach, 208 F.3d
919, 926-927 (CAll 2000), and to ensure that before they are
subjected to suit, officers are on notice their conduct is
unlawful.
Graham and
Anderson refute the excessive
force/probable cause distinction on which much of respondent's
position seems to depend. The deference owed officers facing suits
for alleged excessive force is not different in some qualitative
respect from the probable-cause inquiry in
Anderson.
Officers can have reasonable, but mistaken, beliefs as to the facts
establishing the existence of probable cause or exigent
circumstances, for example, and in those situations courts will not
hold that they have violated the Constitution. Yet, even if a court
were to hold that the officer violated the Fourth Amendment by
conducting an unreasonable, warrantless search,
Anderson
still operates to grant officers immunity for reasonable mistakes
as to the legality of their actions. The same analysis is
applicable in excessive force cases, where in addition to the
deference officers receive on the underlying constitutional claim,
qualified immunity can apply in the event the mistaken belief was
reasonable.
The temporal perspective of the inquiry, whether labeled as
ex ante or
ex post, offers no meaningful distinction
between excessive force and other Fourth Amendment suits.
Graham recognized as much, reviewing several of our
probable-cause and search warrant cases, then stating that "[w]ith
respect to a claim of excessive force, the same standard of
reasonableness at the moment applies." 490 U. S., at 396
(discussing use of force under
Terry v.
Ohio,
392 U. S. 1 (1968);
probable cause to arrest under
Hill v.
California,
401 U. S. 797 (1971); and search warrant requirements under
207
Maryland v.
Garrison, 480 U. S. 79 (1987)); see
also
Hunter v.
Bryant, 502 U. S., at 228 ("Probable
cause existed if 'at the moment the arrest was made ... the facts
and circumstances within their knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a
prudent man in believing'" a crime had been committed (quoting
Beck v.
Ohio, 379 U. S. 89, 91 (1964))).
Excessive force claims, like most other Fourth Amendment issues,
are evaluated for objective reasonableness based upon the
information the officers had when the conduct occurred.
III
The case was presented to the Court of Appeals on the assumption
that respondent's seizure and brief detention did not violate
clearly established First Amendment privileges and did not violate
the Fourth Amendment right to be free from arrest without probable
cause, as distinct from the force used to detain. The sole
question, then, is whether the force used violated a clearly
established Fourth Amendment protection so that petitioner was not
entitled to immunity.
Our instruction to the district courts and courts of appeals to
concentrate at the outset on the definition of the constitutional
right and to determine whether, on the facts alleged, a
constitutional violation could be found is important. As we have
said, the procedure permits courts in appropriate cases to
elaborate the constitutional right with greater degrees of
specificity. Because we granted certiorari only to determine
whether qualified immunity was appropriate, however, and because of
the limits imposed upon us by the questions on which we granted
review, we will assume a constitutional violation could have
occurred under the facts alleged based simply on the general rule
prohibiting excessive force, then proceed to the question whether
this general prohibition against excessive force was the source for
clearly established law that was contravened
208
in the circumstances this officer faced. There was no
contravention under this standard. Though it is doubtful that the
force used was excessive, we need not rest our conclusion on that
determination. The question is what the officer reasonably
understood his powers and responsibilities to be, when he acted,
under clearly established standards.
Respondent's excessive force claim for the most part depends
upon the "gratuitously violent shove" allegedly received when he
was placed into the van, although respondent notes as well that the
alleged violation resulted from the "totality of the
circumstances," including the way he was removed from the speaking
area. See Brief for Respondents 3, n. 2.
These circumstances, however, disclose substantial grounds for
the officer to have concluded he had legitimate justification under
the law for acting as he did. In
Graham we noted that "[o]ur
Fourth Amendment jurisprudence has long recognized that the right
to make an arrest or investigatory stop necessarily carries with it
the right to use some degree of physical coercion or threat thereof
to effect it." 490 U. S., at 396. A reasonable officer in
petitioner's position could have believed that hurrying respondent
away from the scene, where the Vice President was speaking and
respondent had just approached the fence designed to separate the
public from the speakers, was within the bounds of appropriate
police responses.
Petitioner did not know the full extent of the threat respondent
posed or how many other persons there might be who, in concert with
respondent, posed a threat to the security of the Vice President.
There were other potential protesters in the crowd, and at least
one other individual was arrested and placed into the van with
respondent. In carrying out the detention, as it has been assumed
the officers had the right to do, petitioner was required to
recognize the necessity to protect the Vice President by securing
respondent and restoring order to the scene. It cannot be said
209
there was a clearly established rule that would prohibit using
the force petitioner did to place respondent into the van to
accomplish these objectives.
As for the shove respondent received when he was placed into the
van, those same circumstances show some degree of urgency. We have
approved the observation that "[n]ot every push or shove, even if
it may later seem unnecessary in the peace of a judge's chambers,
violates the Fourth Amendment."
Ibid. (citations omitted).
Pushes and shoves, like other police conduct, must be judged under
the Fourth Amendment standard of reasonableness.
In the circumstances presented to this officer, which included
the duty to protect the safety and security of the Vice President
of the United States from persons unknown in number, neither
respondent nor the Court of Appeals has identified any case
demonstrating a clearly established rule prohibiting the officer
from acting as he did, nor are we aware of any such rule. Our
conclusion is confirmed by the uncontested fact that the force was
not so excessive that respondent suffered hurt or injury. On these
premises, petitioner was entitled to qualified immunity, and the
suit should have been dismissed at an early stage in the
proceedings.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE GINSBURG, with whom JUSTICE STEVENS and JUSTICE BREYER
join, concurring in the judgment.
In
Graham v.
Connor, 490 U. S. 386 (1989), the
Court announced and described an "objective reasonableness"
standard to govern all claims that law enforcement officers, in
violation of the Fourth Amendment, used excessive force in the
course of an arrest. Measuring material facts of this case that are
not subject to genuine dispute against the
Graham
210
GINSBURG, J., concurring in judgment
standard, I conclude that officer Saucier's motion for summary
judgment should have been granted. I therefore concur in the
Court's judgment. However, I would not travel the complex route the
Court lays out for lower courts.
Application of the
Graham objective reasonableness
standard is both necessary, under currently governing precedent,
and, in my view, sufficient to resolve cases of this genre. The
Court today tacks on to a
Graham inquiry a second,
overlapping objective reasonableness inquiry purportedly demanded
by qualified immunity doctrine. The two-part test today's decision
imposes holds large potential to confuse. Endeavors to bring the
Court's abstract instructions down to earth, I suspect, will bear
out what lower courts have already observed-paradigmatically, the
determination of police misconduct in excessive force cases and the
availability of qualified immunity both hinge on the same
question:
Taking into account the particular circumstances confronting the
defendant officer, could a reasonable officer, identically
situated, have believed the force employed was lawful? See,
e. g.,
Roy v.
Inhabitants of Lewiston,
42 F.3d
691, 695
(CA1 1994); Rowland v.
Perry, 41 F.3d
167, 173
(CA4 1994). Nothing more and nothing else need
be answered in this case.
I
All claims that law enforcement officers have used excessive
force in the course of an arrest,
Graham made explicit, are
to be judged "under the Fourth Amendment and its 'reasonableness'
standard, rather than under a 'substantive due process' approach."
490 U. S., at 395. Underlying intent or motive are not relevant to
the inquiry; rather, "the question is whether the officers' actions
are 'objectively reasonable' in light of the facts and
circumstances confronting them."
Id., at 397. The proper
perspective in judging an excessive force claim,
Graham
explained, is that of "a reasonable officer on the scene" and "at
the moment" force was employed.
Id., at 396. "Not every push
or shove," the
211
Court cautioned, "even if it may later seem unnecessary in the
peace of a judge's chambers, violates the Fourth Amendment."
Ibid. (citation omitted). "The calculus of reasonableness"
must allow for the reality that "police officers are often forced
to make split-second judgments" about the force a particular
situation warrants "in circumstances that are tense, uncertain, and
rapidly evolving."
Id., at 396-397.
Under
Graham's instructions, the question in this case is
whether officer Saucier, in light of the facts and circumstances
confronting him, could have reasonably believed he acted lawfully.
Here, as in the mine run of excessive force cases, no inquiry more
complex than that is warranted.
Inspecting this case under
Graham's lens, and without
doubling the "objectively reasonable" inquiry, I agree that Katz's
submissions were too slim to put officer Saucier to the burden of
trial. As the Court points out, it is not genuinely in doubt that
"[a] reasonable officer in [Saucier's] position could have believed
that hurrying [Katz] away from the scene ... was within the bounds
of appropriate police responses."
Ante, at 208. Katz's
excessive force claim thus depended on the "gratuitously violent
shove" he allegedly received.
Ibid.; see Brief for
Respondents 3, n. 2 (conceding that "the gratuitous violent shove"
was essential to Katz's excessive force claim).
Yet Katz failed to proffer proof, after pretrial discovery, that
Saucier, as distinguished from his fellow officer Parker,l had a
hand in the allegedly violent shove.2 Saucier, in his
1 Though named as a defendant, Parker was never served with the
complaint, and therefore did not become a party to this litigation.
See Brief for Petitioner 3, n. 4.
2 See Fed. Rule Civ. Proc. 56(e) ("When a motion for summary
judgment is made and supported as provided in this rule, an adverse
party may not rest upon the mere allegations or denials of the
adverse party's pleading, but the adverse party's response ... must
set forth specific facts showing that there is a genuine issue for
trial.").
212
GINSBURG, J., concurring in judgment
deposition, denied participating in any shove, see App. 3940,
while Katz, in his deposition, said, without elaborating:
"They [Parker and Saucier] pretty much threw me in. Just shoved
me in," id., at 25. But critically, at no point did Katz say,
specifically, that Saucier himself, and not only Parker, pushed or
shoved.
Katz's reluctance directly to charge Saucier with pushing or
shoving is understandable in view of a television news videotape of
the episode Katz presented as an exhibit to his complaint. See App.
to Pet. for Cert. 27a. The videotape shows that the shove,
described by Katz as gratuitously violent, came from the officer on
the right side of the police van, not from the officer positioned
on the left side. It is undisputed that the officer on the right is
Parker, the officer on the left, Saucier. See Pet. for Cert. 27-28,
and n. 19; Brief for Petitioner 50, n. 26. Mindful of
Graham's cautionary observation that "[n]ot every push or
shove, even if it may later seem unnecessary in the peace of a
judge's chambers, violates the Fourth Amendment," 490 U. S., at 396
(citation omitted), and in view of Katz's failure to deny that the
shove alleged to establish excessive force came from Parker alone,
not from Saucier, I am persuaded that Katz tendered no triable
excessive force claim against Saucier.3
II
In the Court's OpInIOn,
Graham is inadequate to control
adjudication of excessive force cases.
Graham must be
overlaid, the Court maintains, by a sequential qualified immunity
inquiry.
Ante, at 200. The Court instructs lower courts
first to undertake what appears to be an unadorned
3 As the Court observes, there is a dispute whether Katz was
resisting arrest at the time he was placed in the van.
Ante,
at 198. That dispute is irrelevant, however, in view of the absence
of any indication that Saucier employed excessive force in removing
Katz from the site of the celebration and placing him in the van.
See
Rowland v.
Perry, 41 F.3d
167,174 (CA4 1994) ("[d]isputed versions of the facts alone are
not enough to warrant denial of summary judgment").
213
Graham inquiry, i.
e., to consider initially
whether the parties' submissions, viewed favorably to the
plaintiff, could show that the officer's conduct violated the
Fourth Amendment.
Ante, at 201. If the plaintiff prevails on
that "threshold question,"
ibid., the trial court is then to
proceed to the "dispositive [qualified immunity] inquiry," asking
"whether it would be clear to a reasonable officer that the conduct
was unlawful in the situation he confronted,"
ante, at
202.4
In the instant case, however, the Court finds that procedural
impediments stop it from considering first "whether a
constitutional right would have been violated on the facts
alleged."
Ante, at 200, 207-208. The Court therefore
"assume[s] a constitutional violation could have occurred,"
ante, at 207-i.
e., it supposes a trier could have
found that officer Saucier used force excessive under
Graham's definition. Even so, the Court reasons, qualified
immunity would shield Saucier because he could have "concluded he
had legitimate justification under the law for acting as he did."
Ante, at 208.
Skipping ahead of the basic
Graham (constitutional
violation) inquiry it admonished lower courts to undertake at the
outset, the Court failed to home in on the duplication inherent in
its two-step scheme. As lower courts dealing with excessive force
cases on the ground have recognized, however, this Court's
decisions invoke "the same 'objectively reasonable' standard in
describing both the constitutional test of liability [citing
Graham, 490 U. S., at 397], and the ... standard for
qualified immunity [citing
Anderson v.
Creighton,
483 U. S. 635,
639 (1987)]."
Roy, 42 F. 3d, at
4 The Court's observation that "neither respondent nor the Court
of Appeals ha[s] identified any case demonstrating a clearly
established rule prohibiting the officer from acting as he did,"
ante, at 209, must be read in light of our previous caution
that "the very action in question [need not have] previously been
held unlawful" for a plaintiff to defeat qualified immunity,
Anderson v.
Creighton, 483 U. S. 635, 640
(1987).
214
GINSBURG, J., concurring in judgment
695; see
Street v.
Parham, 929
F.2d 537, 540 (CAlO 1991) (describing excessive force case as
one "where the determination of liability and the availability of
qualified immunity depend on the same findings"). In other words,
an officer who uses force that is objectively reasonable "in light
of the facts and circumstances confronting [him],"
Graham,
490 U. S., at 397, simultaneously meets the standard for
qualified immunity, see
ante, at 201, and the standard the
Court set in
Graham for a decision on the merits in his
favor. Conversely, an officer whose conduct is objectively
unreasonable under
Graham should find no shelter under a
sequential qualified immunity test.
Double counting "objective reasonableness," the Court appears to
suggest,
ante, at 200, is demanded by
Anderson, which
twice restated that qualified immunity shields the conduct of
officialdom "across the board." 483 U. S., at 642, 645 (quoting
Harlow v.
Fitzgerald, 457 U. S. 800, 821 (1982)
(Brennan, J., concurring)); see also
Anderson, 483 U. S., at
643 ("we have been unwilling to complicate qualified immunity
analysis by making the scope or extent of immunity turn on the
precise nature of various officials' duties or the precise
character of the particular rights alleged to have been violated").
As I see it, however, excessive force cases are not meet for
Anderson's two-part test.
Anderson presented the question whether the particular
search conducted without a warrant was supported by probable cause
and exigent circumstances. The answer to such a question is often
far from clear.5 Law in the area is constantly evolving and,
correspondingly, variously interpreted. As aptly observed by the
Second Circuit, "even learned and experienced jurists have had
difficulty in de-
5 Wilson v.
Layne, 526 U. S. 603 (1999), is
a prototypical case. There, the Court accorded qualified immunity
to police who permitted the media to accompany them on a search of
a house. The constitutionality of the ride-along practice was
unsettled at the time of the incident-in-suit in
Wilson, and
remained so until this Court spoke.
215
fining the rules that govern a determination of probable cause
.... As he tries to find his way in this thicket, the police
officer must not be held to act at his peril."
Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
456 F.2d
1339, 1348 (1972) (on remand). In this light,
Anderson
reasoned: "Law enforcement officers whose judgments in making these
difficult determinations [whether particular searches or seizures
comport with the Fourth Amendment] are objectively legally
reasonable should no more be held personally liable in damages than
should officials making
analogous determinations in other
areas of law." 483 U. S., at 644 (emphasis added).
As the foregoing discussion indicates, however, "excessive
force" typically is not an "analogous determination." The
constitutional issue whether an officer's use of force was
reasonable in given circumstances routinely can be answered simply
by following
Graham's directions. In inquiring, under
Graham, whether an officer's use of force was within a range
of reasonable options, the decisionmaker is also (and necessarily)
answering the question whether a reasonable officer "could have
believed" his use of force "to be lawful,"
Anderson, 483 U.
S., at 638. See
Street, 929 F. 2d, at 541, n. 2 (because of
difficulty of deciding probable-cause issues, the conduct of an
officer may be objectively reasonable even if cause did not exist,
but "in excessive force cases, once a factfinder has determined
that the force used was unnecessary under the circumstances, any
question of objective reasonableness has also been
foreclosed").
The Court fears that dispensing with the duplicative qualified
immunity inquiry will mean "leaving the whole matter to the jury."
Ante, at 200. Again, experience teaches otherwise. Lower
courts, armed with
Graham's directions, have not shied away
from granting summary judgment to defendant officials in Fourth
Amendment excessive force cases where the challenged conduct is
objectively reasonable based on relevant, undisputed facts. See,
e. g., Wilson v.
216
GINSBURG, J., concurring in judgment
Spain, 209 F.3d
713, 716 (CAS 2000) ("address[ing] in one fell swoop both
[defendant's] qualified immunity and the merits of [plaintiff's]
Fourth Amendment [excessive force] claim" and concluding officer's
conduct was objectively reasonable in the circumstances, so summary
judgment for officer was proper); Roy, 42 F. 3d, at 695 (under
single objective reasonableness test, District Court properly
granted summary judgment for defendant); 6
Wardlaw v.
Pickett, 1 F.3d
1297,
1303-1304 (CADC 1993) (same). Indeed, this very
case, as I earlier explained, see
supra, at 210-212, fits
the summary judgment bill. Of course, if an excessive force claim
turns on which of two conflicting stories best captures what
happened on the street,
Graham will not permit summary
judgment in favor of the defendant official. And that is as it
should be. When a plaintiff proffers evidence that the official
subdued her with a chokehold even though she complied at all times
with his orders, while the official proffers evidence that he used
only stern words, a trial must be had. In such a case, the Court's
two-step procedure is altogether inutile.
***
For the reasons stated, I concur in the Court's judgment, but
not in the two-step inquiry the Court has ordered. Once it has been
determined that an officer violated the Fourth Amendment by using
"objectively unreasonable" force as
6 Upholding summary judgment for a police officer who shot an
armed, intoxicated, belligerently behaving arrestee, the First
Circuit in Roy elaborated: "[T]he Supreme Court intends to surround
the police who make these on-the-spot choices in dangerous
situations with a fairly wide zone of protection in close cases.
Decisions from this circuit and other circuits are consistent with
that view. And in close cases, a jury does not automatically get to
second-guess these life and death decisions, even though the
plaintiff has an expert and a plausible claim that the situation
could better have been handled differently." 42 F. 3d, at 695
(footnote omitted).
217
that term is explained in
Graham v.
Connor, there
is simply no work for a qualified immunity inquiry to do.
JUSTICE SOUTER, concurring in part and dissenting in part.
I join Parts I and II of the Court's opinion, but would remand
the case for application of the qualified immunity standard.
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