No. 99-1977 

In the Supreme Court of the United States 

DONALD SAUCIER, PETITIONER 

v. 

ELLIOT M. KATZ AND IN DEFENSE OF ANIMALS 

ON WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE PETITIONER 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

JEFFREY A. LAMKEN 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
EDWARD HIMMELFARB 

Attorneys 

Department of Justice 
Washington, D.C. 20530 
(202) 514-2217 

QUESTIONS PRESENTED 

1. Whether, in a case alleging the use of constitutionally 
unreasonable force, the test for qualified immunity and the 
reasonableness test under the Fourth Amendment are 
identical, such that a finding of unreasonable force under the 
Fourth Amendment necessarily precludes the officer from 
being entitled to qualified immunity. 

2. Whether the court of appeals erred in concluding that 
petitioner Saucier’s use of force to detain respondent, which 
consisted of carrying respondent from the crowd to a waiting 
van and pushing him inside without injuring him, so clearly 
exceeded the amount of force permitted by the Fourth 
Amendment as to warrant denial of qualified immunity. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional provision involved ............................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
10 

Argument ........................................................................................ 15 

I. An officer who uses force that is ultimately found 

unreasonable under the Fourth Amendment may 

nevertheless be entitled to qualified immunity ........ 
15 

A. The qualified immunity inquiry is distinct 

from the substantive Fourth Amendment 

excessive force inquiry because of the dif- 
ferent purposes served by the two inquiries ..... 

15 

B. The Ninth Circuit’s attempt to reconcile its 

decision with this Court’s decisions is un- 
persuasive ................................................................. 31 

C. The Ninth Circuit’s decision undermines 

the ability of courts to dispose of suits before 

trial under qualified immunity .............................. 
39 

II. The court of appeals erred in denying qualified 

immunity in this case ..................................................... 

42 

A. Specialist Saucier’s use of force to detain 

respondent did not violate clearly established 

constitutional rights ................................................ 

42 

B. Saucier’s placement of respondent into the 

van did not violate respondent’s clearly 

established rights .................................................... 

48 

Conclusion ....................................................................................... 50 

(II) 

III 

TABLE OF AUTHORITIES 

Cases: Page 

Alexander v. County of Los Angeles, 64 F.3d 1315 

(9th Cir. 1995) ......................................................................... 

21 

Anderson v. Creighton, 483 U.S. 635 (1987) ............. 

passim 

Bivens v. Six Unknown Named Agents of Federal 

Bureau of Narcotics, 403 U.S. 388 (1971) ........................ 

4 

Brown v. Glossip, 878 F.2d 871 (5th Cir. 1989) ................ 

29 

Carroll v. United States, 267 U.S. 132 (1925) ................... 

34 

City of Philadelphia Litig., In re, 49 F.3d 945 

(3d Cir.), cert. denied, 516 U.S. 863 (1995) ........................ 

24 

Clark v. Beville, 730 F.2d 739 (11th Cir. 1984) ................. 

23 

Colston v. Barnhart, 130 F.3d 96 (5th Cir. 1997), 

cert. denied, 525 U.S. 1054 (1998) ....................................... 

24 

Curd v. City Court of Judsonia, 141 F.3d 839 (8th 

Cir.), cert. denied, 525 U.S. 888 (1998) ............................... 

43 

Deary v. Three Un-Named Police Officers, 746 

F.2d 185 (3d Cir. 1984) .......................................................... 

23 

Elder v. Holloway, 510 U.S. 510 (1994) ............................. 

40 

Ellis v. Wynalda, 999 F.2d 243 (7th Cir. 1993) ............ 

29, 41 

Finnegan v. Fountain, 915 F.2d 817 (2d Cir. 

1990) ..................................................................................... 

27, 29 

Florida v. Jimeno, 500 U.S. 248 (1991) .............................. 

19 

Forrester v. City of San Diego, 25 F.3d 804 (9th 

Cir. 1994), cert. denied, 513 U.S. 1152 (1995) ................... 

25 

Frazell v. Flanigan, 102 F.3d 877 (7th Cir. 1996) ........... 

30 

Gold v. City of Miami, 121 F.3d 1442 (11th Cir. 

1997), cert. denied, 525 U.S. 870 (1998) ............................. 

29 

Graham v. Connor, 490 U.S. 386 (1989) .................... 

passim 

Greer v. Spock, 424 U.S. 828 (1976) .................................... 

3 

Hammer v. Gross, 932 F.2d 842 (9th Cir.) (en banc), 

cert. denied, 502 U.S. 980 (1991) ......................................... 

8 

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .................... 

10, 15, 

20, 50 

Headwaters Forest Def. v. County of Humboldt, 
211 F.3d 1121 (9th Cir. 2000) ............................................... 31 

IV 

Cases—Continued: Page 

Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 

1993) ......................................................................................... 43 

Hunter v. Bryant, 502 U.S. 224 (1991) .............. 

16, 20, 21, 35, 

39, 40, 41, 46 
Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973) ................ 

48 

Jones v. City of Dothan, 121 F.3d 1456 (11th Cir. 

1997) ......................................................................................... 44 

Jones v. Webb, 45 F.3d 178 (7th Cir. 1995) ........................ 

29 

Joos v. Ratliff, 97 F.3d 1125 (8th Cir. 1996) ...................... 

24 

Karnes v. Skrutski, 62 F.3d 485 (3d Cir. 1995) ................ 

23 

Katz v. United States, No. 98-16121 (9th Cir. 

Sept. 21, 1998) ......................................................................... 

5 

Landrum v. Moats, 576 F.2d 1320 (8th Cir.), 

cert. denied, 439 U.S. 912 (1978) ......................................... 

29 

Lanigan v. Village of East Hazel Crest, 110 F.3d 

467 (7th Cir. 1997) .............................................................. 

30, 33 

Lennon v. Miller, 66 F.3d 416 (2d Cir. 1995) ................ 

29, 33 

Limbert v. Twin Falls County, 955 P.2d 1123 

(Idaho 1998) ............................................................................ 

44 

Malley v. Briggs, 475 U.S. 335 (1986) ..................... 

11, 15, 16, 

21, 25, 33, 40, 45, 48 
McGruder v. Heagwood, 197 F.3d 918 (8th Cir. 

1999) ......................................................................................... 29 

McNair v. Coffey, No. 00-1139, 2000 WL 1801253 

(7th Cir. Dec. 8, 2000) ................................................. 

30, 36, 38 

Mitchell v. Forsyth, 472 U.S. 511 (1985) ........................ 

16, 39 

Napier v. Town of Windham, 187 F.3d 177 (1st 

Cir. 1999) ................................................................................. 

29 

Nelson v. County of Wright, 162 F.3d 986 (8th Cir. 

1998) ......................................................................................... 30 

Nolin v. Isbell, 207 F.3d 1253 (11th Cir. 2000) ................. 

44 

Ohio v. Robinette, 519 U.S. 33 (1996) ................................. 

19 

Oliveira v. Mayer, 23 F.3d 642 (2d Cir. 1994), 

cert. denied, 513 U.S. 1076 (1995) ................................... 

22-23 

Ornelas v. United States, 517 U.S. 690 (1996) .............. 

39, 40 

Payton v. New York, 445 U.S. 573 (1980) .......................... 34 

V 

Cases—Continued: Page 

Post v. City of Fort Lauderdale, 7 F.3d 1552 

(1993), amended, 14 F.3d 583 (11th Cir. 1994) .............. 

12, 28 

Priester v. City of Riviera Beach, 208 F.3d 919 

(11th Cir. 2000) ........................................................ 

12, 28, 41, 50 

Rowland v. Perry, 41 F.3d 167 (4th Cir. 1994) ................. 

29 

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............................. 

15 

Scott v. District of Columbia, 101 F.3d 748 (D.C. 

Cir. 1996), cert. denied, 520 U.S. 1231 (1997) ................... 

30 

Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997) ............... 

24 

Siegert v. Gilley, 500 U.S. 226 (1991) .................................. 

39 

Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991) ................. 

30 

Sledd v. Lindsay, 102 F.3d 282 (7th Cir. 1996) ................. 

29 

Steagald v. United States, 451 U.S. 204 (1981) ................. 

34 

Street v. Parham, 929 F.2d 537 (10th Cir. 1991) .............. 

21 

Tennessee v. Garner, 471 U.S. 1 (1985) ................... 

23, 28, 46 

United States v. Albertini, 472 U.S. 675 (1985) ................ 

3 

United States v. Mills, 122 F.3d 346 (7th Cir.), 

cert. denied, 522 U.S. 1033 (1997) ....................................... 

40 

United States v. Rios, 88 F.3d 867 (10th Cir. 

1996) ......................................................................................... 40 

Williams v. Brammer, 180 F.3d 699 (5th Cir. 

1999) ....................................................................................... 44-45 

Williams v. Taylor, 120 S. Ct. 1495 (2000) ................... 

26, 37 

Wilson v. Layne, 526 U.S. 603 (1999) .......................... 

24-25, 33 

Wong Sun v. United States, 371 U.S. 471 (1963) ............. 

34 

Wood v. Strickland, 420 U.S. 308 (1975) ............................ 

16 

Constitution, statutes and rule: 

U.S. Const.: 

Amend. I ............................................................................. 

4 

Amend. IV .................................................................. 

passim 

28 U.S.C. 2254(d)(1) .................................................................. 

26 

42 U.S.C. 1983 ............................................................................ 

38 

Fed. R. Civ. P. 56(e) ................................................................. 49 

VI 

Miscellaneous: Page 

Black’s Law Dictionary (6th ed. 1990) ................................. 

49 

Federal Bureau of Investigation, Manual of Investiga- 
tive Operations and Guidelines (effective May 26, 

1989) ......................................................................................... 44 

International Ass’n of Chiefs of Police/National Law 

Enforcement Policy Center, Model Policy on 

Transportation of Prisoners (rel. Oct. 1, 1997) ................ 

44 

1 Wayne R. LaFave, Search and Seizure (3d ed. 

1996) ..................................................................................... 

19, 35 

Jon O. Newman, Suing the Lawbreakers, 87 Yale 

L.J. 447 (1978) ......................................................................... 23 

In the Supreme Court of the United States 

No. 99-1977 
DONALD SAUCIER, PETITIONER 

v. 
ELLIOT M. KATZ AND IN DEFENSE OF ANIMALS 

ON WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE PETITIONER 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-16a) is 
reported at 194 F.3d 962. The opinions of the district court 
(Pet. App. 17a-64a) are unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
October 22, 1999. A petition for rehearing was denied on 
January 10, 2000 (Pet. App. 65a-66a). On March 30, 2000, and 
May 1, 2000, Justice O’Connor extended the time within 
which to file a petition for a writ of certiorari, first to May 9, 
2000, and then to June 8, 2000, and the petition was filed on 
the latter date. This Court granted the petition on Novem- 
ber 13, 2000. The jurisdiction of this Court is invoked under 
28 U.S.C. 1254(1). 

CONSTITUTIONAL PROVISION INVOLVED 

The Fourth Amendment to the United States Consti- 
tution provides: 

The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated, and no 
Warrants shall issue, but upon probable cause, supported 

(1) 

2 

by Oath or affirmation, and particularly describing the 
place to be searched, and the persons or things to be 
seized. 

U.S. Const. Amend. IV. 

STATEMENT 

Respondent Elliot Katz, an animal rights activist,1 
brought this Fourth Amendment excessive force claim after 
he was detained at the Presidio military post in San Fran- 
cisco.2 

1. On September 24, 1994, Vice President Albert Gore 
and other speakers gave a special presentation at the Presi- 
dio to celebrate the conversion of that facility, which was 
then an Army base, into a national park the following week. 
Pet. App. 3a. The public was invited to attend. Ibid. Re- 
spondent arrived at the Presidio early on the day of the pre- 
sentation, intending to display a banner protesting possible 
use of the Letterman Hospital in the Presidio for experi- 
mentation involving animals. Id. at 3a, 18a. The banner 
read: “Please Keep Animal Torture Out of Our National 
Parks.” Id. at 4a, 19a. Perhaps aware that the Army prohib- 
its the display of protest banners and other political activi- 
ties at the Presidio and other military bases—respondent 
testified that he knew that visitors had been asked to leave 
the Presidio base for engaging in such activities, J.A. 
29—respondent kept his banner concealed under his jacket 
as he entered and walked through the base, J.A. 19.3 

1 The suit was also brought by respondent In Defense of Animals, an 
organization of which Dr. Katz is president. We use the word “respon- 
dent” to refer to respondent Katz alone, except where context indicates 
otherwise. 

2 The relevant facts are, for the most part, not disputed. Because the 
case arises on petitioner’s motion for summary judgment, any disputed 
facts should be viewed in the light most favorable to respondent. 

3 Political activities (including political protest, campaigning, and 
leafleting) have long been prohibited on military bases. This Court has 
upheld that prohibition as “consistent with” the Nation’s “constitutional 

3 

Respondent sat down in the front row of the seating area, 
near the speaker platform; at some point, he claims, he may 
have removed the banner from under his jacket and held it 
closed on his lap. J.A. 19, 21; Pet. App. 4a. 

During Vice President Gore’s speech, respondent moved 
forward from his seat to the waist-high barrier that sepa- 
rated the spectators from the Vice President and began to 
unfurl his roughly 4-foot-by-3-foot banner. Pet. App. 4a, 19a, 
22a. Respondent placed the banner on the barrier— 
according to respondent, he “held the banner in place” on the 
barrier—and began allowing it to unfold. J.A. 23. As he did 
so, someone “grabbed [respondent] from behind, and some- 
body else tore the banner away.” Pet. App. 4a, 24a. The two 
individuals were Sergeant Steven Parker and petitioner, 
then-Private now-Specialist Donald Saucier, who were serv- 
ing as military police. Id. at 4a.4 

When the two saw respon- 
dent quickly move from his seat toward the barrier that 
separated the crowd from the Vice President—Parker testi- 
fied that he saw respondent “rushing” or “running towards 
the barricade,” J.A. 48, 50, and respondent’s seat was only 
tradition of a politically neutral military,” because it ensures that “official 
military activities” remain “wholly free of entanglement with partisan 
political campaigns,” and because it insulates the military “from both the 
reality and the appearance of acting as a handmaiden for partisan political 
causes.” Greer v. Spock, 424 U.S. 828, 839 (1976); United States v. Alber- 
tini, 472 U.S. 675, 684-686 (1985) (similar). In this case, Major Corbin Lee 
testified that the Army circulated fliers to potential protesters, including 
an animal rights group, explaining that visitors to the base would not be 
permitted to display banners, handbill, or otherwise protest on the base. 
J.A. 63-64. See also J.A. 65-66 (indicating that animal rights group had 
been given fliers and warned of the prohibition several times). Respon- 
dent denies receiving such written notification, Pet. App. 19a, but admits 
being aware of the fact that other visitors to the base had been asked to 
leave when they attempted to circulate handbills, J.A. 29. 

4 Because Sergeant Parker was never served with the complaint, he is 
not currently a party to this litigation. See Pet. App. 5a (“[A]t the time of 
this appeal Parker ha[s] not been served.”); id. at 38a (“Defendant Parker 
had not been served and is not before this Court.”). 

4 

about four feet from the barrier to begin with, J.A. 22- 
23—they immediately moved to intercept him. There is no 
allegation that Saucier or Parker hit or struck respondent. 
Instead, they each took one of respondent’s arms and quickly 
removed him from the seating area. According to 
respondent, Saucier and Parker “started sort of picking me 
up and kind of walking me out, kind of like very hurriedly.” 
Pet. App. 4a, 25a; J.A. 23-24. See also J.A. 24-25 (re- 
spondent’s testimony that the officers “held [him] up in the 
air” so that his feet “were barely touching the ground” as 
they “mostly carried me walking out”). 

Respondent claims that the officers took him to a military 
police van located behind the seating area, and that he was 
“shoved” inside. Pet. App. 4a, 25a. Respondent also claims 
that, as a result of the shove, he fell inside the van and was 
almost injured. Ibid. But respondent was not injured. To 
the contrary, respondent caught himself and avoided injury. 
Ibid. See also J.A. 30. After being driven to a military police 
station, respondent was briefly detained. He was then re- 
leased, and he returned to his car and drove himself home. 
Pet. App. 4a-5a. 

The news media covered the events at the Presidio. As a 
result, portions of the above-described events were recorded 
and then broadcast on the local news. Videotapes of relevant 
portions of the broadcasts, which are part of the record in 
this case, were lodged with the Court together with the 
petition for a writ of certiorari. 

2. Respondent brought this action against Specialist Sau- 
cier and other officials pursuant to Bivens v. Six Unknown 
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 
(1971), alleging (among other things5) that they violated his 

5 Respondent also alleged a violation of his First Amendment rights, 
and claimed that the arrest violated his Fourth Amendment rights be- 
cause the officers lacked probable cause to detain him. As we pointed out 
in the petition (at 4-5 & n.4), the district court rejected both of those 
claims, and neither of them is before this Court; only the claim that 

5 

Fourth Amendment rights by using constitutionally exces- 
sive force to arrest him. Pet. App. 23a-27a. Following dis- 
covery, Specialist Saucier sought summary judgment on 
qualified immunity grounds, arguing that a competent officer 
could reasonably have believed that the amount of force he 
used was consistent with the Fourth Amendment. 

The district court denied the motion.6 The court first 
addressed whether summary judgment was appropriate on 
the merits of the Fourth Amendment claim. The constitu- 
tionality of an officer’s use of force, the district court ex- 
plained, depends on whether the force was “ ‘objectively rea- 
sonable’ in light of the facts and circumstances confronting 
[him], without regard to [his] underlying intent or motiva- 
tion.” Pet. App. 24a (quoting Graham v. Connor, 490 U.S. 
386, 388 (1989)). The objective reasonableness of force, the 
district court continued, depends on “the severity of the 

Saucier used unreasonable force is. With respect to the First Amendment 
claim, the district court concluded that, given “the transitional state of the 
Presidio on September 24, 1994”—the Presidio was still an Army post—it 
was not clear that the Presidio could be considered a public forum. Pet. 
App. 44a; id. at 5a. As a result, the court concluded that “the rights of 
protestors at the Presidio were not well established on the date in 
question, [and] a reasonable military officer could have concluded that 
preventing protests at the base was Constitutional.” Ibid. For the same 
reason, the district court concluded that summary judgment was appropri- 
ate with respect to the claim of unlawful arrest. The court explained that, 
because a reasonable officer could have believed that prohibiting protests 
on the base was constitutional, a reasonable officer also could have be- 
lieved that respondent was about to commit a crime when he approached 
the speaking area and attempted to unfurl a protest banner. Id. at 5a, 23a. 
Finally, the district court concluded that respondent lacked standing to 
seek declaratory and injunctive relief. Id. at 53a-64a. Respondent sought 
to appeal those rulings, but the court of appeals dismissed the appeal for 
lack of jurisdiction. Katz v. United States, No. 98-16121 (9th Cir. Sept. 21, 
1998). Respondent has not sought this Court’s review of that dismissal. 

6 Although respondent had also asserted excessive force claims 
against two supervisory officials, General Glynn C. Mallory and Major 
Corbin Lee, the district court granted their motions for summary judg- 
ment. Respondent, the district court concluded, had produced no evidence 
linking those defendants to the disputed use of force. Pet. App. 30a-34a. 

6 

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.” Ibid. 

After reviewing the descriptions of the events offered by 
Specialist Saucier, Sergeant Parker, and respondent, Pet. 
App. 24a-27a, and the “videotape of television news coverage 
of the events at the Presidio conversion ceremony,” id. at 
27a, the district court concluded that there was some dispute 
as to the nature of the risk respondent presented to others 
and to the Vice President. Ibid. Although the officers had 
argued that it was permissible to seize respondent and 
quickly remove him from the crowd because of their “con- 
cern[] for the safety of the public and for the speakers,” the 
court noted that, according to respondent, he had removed 
the banner from his jacket before approaching the barrier— 
making it less likely that he was pulling a weapon from his 
jacket as he approached—and that Saucier had been told in 
advance that respondent might be a protester. Id. at 26a. 
The court also relied on the fact that respondent is 60 years 
old; that he was wearing a leg brace because of a fractured 
foot; and that respondent “did not overpower the officers at 
any time.” Id. at 27a. Describing the videotape evidence, 
the court stated: 

Viewed in a light most favorable to [respondent], the 
videotape shows two officers, on each side of [respon- 
dent], removing him from the crowd and carrying or 
pulling him toward the van. Once they arrive at the van, 
the officers push [respondent] into the van. Given the 
nature of the crime at issue and the circumstances sur- 
rounding the incident, the Court cannot conclude that the 
use of force was reasonable as a matter of law. 

Ibid. 

The district court also denied Specialist Saucier’s motion 
for summary judgment on the issue of qualified immunity, 

7 

reasoning that the denial of summary judgment on the 
merits necessarily foreclosed the possibility of immunity. 
Pet. App. 27a-30a. Following a “two-prong” inquiry man- 
dated by Ninth Circuit precedent, the district court first 
held that the law regarding the use of force was clearly 
established at the time the challenged conduct occurred. Id. 
at 28a-29a & n.1. Turning to the “next step” of the inquiry, 
the court examined whether “a reasonable officer could have 
believed that” Saucier “acted lawfully with regard to the 
degree of force used to remove [respondent] from the crowd 
and place him inside the van.” Id. at 29a. In “the Fourth 
Amendment context,” the district court held, “the qualified 
immunity inquiry is the same as the inquiry made on the 
merits. * * * The Court must consider whether the totality 
of the circumstances justified the particular type of seizure.” 
Id. at 30a. In this case, the district court explained, it had 
already found disputed facts that precluded summary judg- 
ment on whether Saucier’s use of force was reasonable. Ibid. 
It necessarily follows, the court declared, that Saucier is “not 
entitled to summary judgment on the basis of qualified im- 
munity.” Ibid. 

3. The court of appeals affirmed. Pet. App. 1a-16a. The 
court first rejected the government’s contention that it was 
error to “equate[] the reasonableness test for the defense of 
qualified immunity with the reasonableness test for the 
merits of an excessive force claim.” Id. at 8a. Like the dis- 
trict court, the court of appeals explained that, in the Ninth 
Circuit, the qualified immunity inquiry has two prongs. The 
first asks whether the legal standard or formula governing 
the officer’s conduct is clearly established. The second asks 
whether a reasonable officer, applying that standard, could 
have believed his conduct was lawful. Ibid. In excessive 
force cases, the court stated, the Fourth Amendment rea- 
sonableness test and the second prong of the qualified immu- 
nity analysis both focus “on the objective reasonableness of 
the officer’s conduct.” Id. at 10a. “Because of this parity,” 

8 

the court concluded, “we have repeatedly held that the 
inquiry as to whether officers are entitled to qualified 
immunity for the use of excessive force is the same as the 
inquiry on the merits of the excessive force claim.” Ibid. 
(internal quotation marks omitted). The court of appeals 
rejected the government’s contention that equating the 
qualified immunity inquiry and the Fourth Amendment 
reasonableness test is inconsistent with the Ninth Circuit’s 
earlier en banc decision in Hammer v. Gross, 932 F.2d 842, 
850, cert. denied, 502 U.S. 980 (1991), and this Court’s 
decision in Anderson v. Creighton, 483 U.S. 635, 639 (1987). 
Pet. App. 12a-14a. In Anderson, this Court rejected the 
argument that an officer who conducts an unreasonable 
search in violation of the Fourth Amendment cannot, by 
definition, have behaved reasonably so as to be entitled to 
qualified immunity. 483 U.S. at 643. In Hammer, the Ninth 
Circuit relied on Anderson to reject the argument that “an 
officer who has used unreasonable force cannot, by defini- 
tion, have acted reasonably” so as to be entitled to qualified 
immunity. Hammer, 932 F.2d at 850 (emphasis added). 
Noting that Anderson v. Creighton itself had rejected a 
“similar contention” in the context of searches, the Hammer 
court explained: 

Whether a search is “unreasonable” within the meaning 
of the Fourth Amendment is an entirely different ques- 
tion from whether an officer reasonably could have 
believed his actions lawful under the Fourth Amend- 
ment. Anderson, 483 U.S. at 643-44 * * *. To accept 
Hammer’s contention would be to eliminate all possibility 
of immunity for violations of the Fourth Amendment, an 
unacceptable outcome. 

Ibid. 

The court of appeals in this case attempted to distinguish 
the en banc decision in Hammer as having been resolved 
under the first prong of the Ninth Circuit’s two-prong 

9 

approach. Pet. App. 13a. In Hammer, the court of appeals 
stated, the governing legal standard had changed over time 
and thus was not “clearly established.” According to the 
court of appeals, this Court had “articulated a new objective 
reasonableness test that was different” from the “ ‘shock-the- 
conscience’ test” in effect at the time the defendant in 
Hammer had acted. Ibid. (citing Graham, 490 U.S. at 386). 
Because a reasonable officer “could have believed that [the 
defendant’s] conduct did not ‘shock the conscience’ and thus 
was in fact lawful under the legal test used at the time,” the 
court stated, the defendant in Hammer could be entitled to 
qualified immunity even though the “amount of force used 

* * * violated the Fourth Amendment because it was 
objectively unreasonable.” Ibid. “A defendant,” the court of 
appeals concluded, “will always be entitled to qualified 
immunity when the law governing his or her conduct was not 
clearly established—the first prong of the qualified immu- 
nity defense.” Id. at 14a. 

In a footnote, the court of appeals attempted to distin- 
guish this Court’s decision in Anderson v. Creighton. Pet. 
App. 14a n.4. Anderson, the court of appeals stated, primar- 
ily “focuses on the proper formulation of the ‘clearly estab- 
lished’ ” or “first prong” of the qualified immunity inquiry. 
Ibid. Anderson does not, the court of appeals continued, 
“address the application of the second prong of the qualified 
immunity analysis” (i.e., whether a reasonable officer could 
have believed the relevant conduct to be lawful), “let alone 
its application in excessive force cases.” Ibid. 

Having concluded that the qualified immunity inquiry 
does not differ from the test of reasonableness under the 
Fourth Amendment itself, the Ninth Circuit then turned to 
whether “the amount of force [Specialist Saucier] used in 
arresting [respondent] was so minimal that it was per se rea- 
sonable.” Pet. App. 14a-15a. “The question of the reason- 
ableness of force,” the court of appeals stated, “is usually a 
question of fact for the jury,” and summary judgment 

10 

therefore is appropriate only “when, viewing the evidence in 
the light most favorable to [the plaintiff], the evidence com- 
pels the conclusion that [the officer’s] use of force was rea- 
sonable.” Id. at 15a n.5 (internal quotation marks omitted). 
In this case, the court of appeals concluded, the force used 
was not so minimal as to compel a finding of reasonableness. 

The court noted that, according to respondent, Saucier 
and Parker had seized him from behind “without warning or 
speaking to him,” half-carried, half-walked him for about 
fifty feet, and forcefully pushed him inside the van. Pet. 
App. 15a. On the whole, the court appeared to conclude, that 
constituted a disproportionate response. “Unfurling a ban- 
ner,” the court of appeals stated, is not a severe crime; re- 
spondent was a sixty-year-old man wearing a leg brace; 
“[t]here is no indication that he was armed or dangerous”; 
and, “[f]rom all that appears at this stage of the case,” 
respondent “did not pose an immediate threat to the safety 
of the officers or anyone else.” Ibid. The court therefore 
concluded that summary judgment was properly denied on 
the merits of the Fourth Amendment claim, and thus on the 
issue of qualified immunity as well. Ibid. 

The court of appeals denied rehearing en banc. Pet. App. 
65a-66a. On November 13, 2000, this Court granted the 
petition for a writ of certiorari. 121 S. Ct. 480. 

SUMMARY OF ARGUMENT 

I. A. Qualified immunity precludes a government official 
from being held liable for unconstitutional conduct unless the 
official violates “clearly established statutory or constitu- 
tional rights of which a reasonable person would have 
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In 
Anderson v. Creighton, 483 U.S. 635 (1987), this Court clari- 
fied the level of generality at which the qualified immunity 
inquiry must take place. Immunity, the Court held, may not 
be denied merely because “the relevant ‘legal rule’ ” was 
“clearly established” at a higher level of generality. Id. at 

11 

639. Instead, the Court held, immunity may be denied only if 
“the right the official is alleged to have violated [was] 
‘clearly established’ in a more particularized, and hence more 
relevant, sense: The contours of the right must be suffi- 
ciently clear that a reasonable official would understand that 
what he is doing violates that right.” Id. at 640 (emphasis 
added). The Court also rejected the contention that the 
defense of qualified immunity is necessarily foreclosed in 
Fourth Amendment cases whenever an unreasonable search 
has occurred. Id. at 643. 

Anderson v. Creighton controls this case. Like the deter- 
mination of whether a search is reasonable, the determina- 
tion of whether a particular use of force is reasonable “is not 
capable of precise definition or mechanical application,” and 
depends on “a careful balancing of the nature and quality of 
the intrusion * * * against the countervailing govern- 
mental interests at stake.” Graham v. Connor, 490 U.S. 386, 
396 (1989) (internal quotation marks omitted). The test of 
“objective reasonableness” this Court articulated in Graham 
is by necessity general and does not, for every set of circum- 
stances an officer might encounter, clearly resolve whether a 
particular use of force will be held to be reasonable. Conse- 
quently, even if an officer uses objectively unreasonable 
force and violates the Fourth Amendment, he cannot be held 
liable in damages for that conduct unless the illegality of his 
conduct was sufficiently “obvious” in advance “that no rea- 
sonably competent officer would have concluded” that the 
actions were constitutional. Malley v. Briggs, 475 U.S. 335, 
341 (1986). Thus, a Fourth Amendment violation occurs 
when, even taking due account of the split-second nature of 
an officer’s decision, the conduct turns out to have been, on 
balance, objectively unreasonable. But immunity is nonethe- 
less appropriate unless that conduct was sufficiently beyond 
the sometimes “hazy border between excessive and accept- 
able force that [the official] had to know he was violating the 
Constitution,” i.e., unless governing case law or the “applica- 

12 

tion of the [excessive force] standard would inevitably lead 
every reasonable officer in [the Defendants’] position to 
conclude the force was unlawful.” Priester v. City of Riviera 
Beach, 208 F.3d 919, 926-927 (11th Cir. 2000); Post v. City of 
Fort Lauderdale, 7 F.3d 1552, 1559 (1993), amended, 14 F.3d 
583 (11th Cir. 1994). 

Notwithstanding Anderson, the Ninth Circuit in this case 
held that, in the context of unreasonable force claims, the 
question of Fourth Amendment reasonableness is the same 
as the qualified immunity inquiry, and that an officer 
therefore cannot be entitled to qualified immunity if he used 
constitutionally unreasonable force. The court of appeals 
reasoned that force cannot be “objectively reasonable” for 
purposes of the qualified immunity inquiry, while also being 
“objectively unreasonable” for purposes of the Fourth 
Amendment itself. See, e.g., Pet. App. 10a. This Court, how- 
ever, rejected precisely that reasoning as “unpersuasive” in 
Anderson. The fact that a particular search or seizure turns 
out to have been unreasonable, the Court explained, does not 
necessarily resolve whether its illegality was sufficiently 
obvious in light of pre-existing law that no reasonable officer 
could have thought it to be reasonable. As a result, the 
Court held, qualified immunity is no less available to officers 
who reasonably err in determining the boundaries of lawful 
conduct under the Fourth Amendment than to those who 
make similar errors in other areas of law. 483 U.S. at 643. 

The Ninth Circuit’s rationale also obscures a critical dif- 
ference between the functions served by the reasonableness 
inquiry in the Fourth Amendment and in the qualified immu- 
nity test. Although both use the term “reasonable” (or its 
converse, “unreasonable”), they employ that term for dif- 
ferent purposes and in different senses. When a decision- 
maker determines whether constitutionally unreasonable 
force has been used in violation of the Fourth Amendment, it 
articulates a standard to govern the conduct of an officer 
confronting a certain set of facts, i.e., it decides whether the 

13 

officer’s conduct was “objectively reasonable” for purposes 
of the Fourth Amendment. Graham, 490 U.S. at 397. But 
when a decisionmaker resolves the question of immunity, it 
asks a different question—whether that standard of conduct 
was sufficiently obvious in the first instance that it would be 
unreasonable to have reached the opposite conclusion. Thus, 
under the Fourth Amendment, reasonableness defines the 
boundaries of lawful conduct; in the qualified immunity 
context, it defines the often wider boundaries of what an 
officer might reasonably have believed to be lawful at the 
time he acted. 

B. Seeking to reconcile its decision with Anderson, the 
Ninth Circuit suggested (in a footnote) that Anderson 
turned on the fact that the general legal rule to be applied 
when judging the official conduct there, unlike the test 
applicable here, was uncertain. That contention, however, 
cannot be reconciled with Anderson. The decision and ques- 
tion presented in Anderson were premised on the fact that 
the general legal rule governing the warrantless search at 
issue there was well settled; the question was whether 
officers could nonetheless be entitled to qualified immunity 
because it was not clearly established that, under that well- 
settled rule, the officers’ conduct was illegal on the facts they 
confronted. Answering that question in the affirmative, this 
Court held it was error to deny qualified immunity merely 
because the general legal rule or standard was well settled. 
Instead, the Court held, qualified immunity may be denied 
only if no competent officer, in light of pre-existing law and 
the specific facts the defendant confronted, could reasonably 
have concluded that the search in question was lawful. 483 
U.S. at 639-641. Similar analysis applies here. 

C. The Ninth Circuit’s decision also prevents qualified 
immunity from serving as an immunity to suit, because it 
effectively requires all excessive force cases to be resolved 
at trial. According to the court of appeals, the reason- 
ableness of any use of force is usually “a question of fact” for 

14 

the jury, and qualified immunity must be denied at summary 
judgment unless “the evidence compels the conclusion that 
[the officer’s] use of force was reasonable.” Pet. App. 15a n.5 
(emphasis added). That, however, turns the inquiry on its 
head. Qualified immunity is not appropriate merely where, 
viewing the facts in the light most favorable to the plaintiff, 
the force employed was reasonable as a matter of law. 
Instead, it is also appropriate where, under the plaintiff ’s 
version of the events, reasonable officers could disagree on 
whether or not the force was reasonable. 

II. The decision below illustrates the danger of equating 
the qualified immunity and the reasonable force inquiries. 

A. In this case, Specialist Saucier used minimal force to 
remove respondent from the crowd. The court of appeals 
held that such conduct was unreasonable because, among 
other things, Saucier should have spoken to respondent be- 
fore removing him. But Saucier’s decision to act decisively 
—and use surprise to his advantage—to gain control over an 
individual who was flagrantly violating the law was not 
unreasonable given the circumstances and the uncertainty 
Saucier confronted. In any event, Saucier’s conduct was not 
sufficiently beyond the bounds of potentially lawful behavior 
under the Fourth Amendment that, in light of pre-existing 
law, every reasonable officer would necessarily have under- 
stood it to be unlawful. 

B. The court of appeals also concluded that Specialist 
Saucier was not entitled to qualified immunity with respect 
to the amount of force used to move respondent into the van. 
But “[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.” Graham, 490 U.S. at 396 
(internal quotation marks omitted). Besides, it is undisputed 
that the allegedly forceful push of which respondent com- 
plains did not come from Saucier—it came from Sergeant 
Parker—and the court of appeals has articulated no theory 
under which Saucier may be held legally responsible for it. 

15 

Because reasonable officers certainly could have believed 
that the amount of force Saucier used to place respondent 
into the van was lawful, Saucier is entitled to qualified 
immunity. 

ARGUMENT 

I. AN OFFICER WHO USES FORCE THAT IS ULTI- 
MATELY FOUND UNREASONABLE UNDER THE 
FOURTH AMENDMENT MAY NEVERTHELESS BE 
ENTITLED TO QUALIFIED IMMUNITY 

A. The Qualified Immunity Inquiry Is Distinct From 

The Substantive Fourth Amendment Excessive 

Force Inquiry Because Of The Different Purposes 

Served By The Two Inquiries 

In Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), this 
Court held that qualified immunity precludes a government 
official from being held liable for unconstitutional conduct 
unless the official violates “clearly established statutory or 
constitutional rights of which a reasonable person would 
have known.” The qualified immunity inquiry is objective, 
and immunity may not be denied merely because, in the end, 
the officer’s conduct was unlawful. Instead, even where an 
officer errs and violates the Constitution, immunity shields 
the officer from liability and suit unless, “on an objective 
basis, it is obvious that no reasonably competent officer 
would have concluded” that the actions at issue were con- 
stitutional at the time they were undertaken. Malley v. 
Briggs, 475 U.S. 335, 341 (1986). “[I]f officers of reasonable 
competence could disagree on” the lawfulness of the conduct, 
“immunity should be recognized.” Ibid. 

Official immunity is rooted in the policy consideration that 
the “public interest requires decisions and action to enforce 
laws for the protection of the public.” Scheuer v. Rhodes, 
416 U.S. 232, 241 (1974). “Implicit in the idea that officials 
have some immunity—absolute or qualified—for their acts, 

16 

is a recognition that they may err. The concept of immunity 
assumes this and goes on to assume that it is better to risk 
some error and possible injury from such error than not to 
decide or act at all.” Id. at 242. Qualified immunity thus 
serves to ensure that officials do not “exercise their discre- 
tion with undue timidity.” Wood v. Strickland, 420 U.S. 308, 
321 (1975). Consistent with that goal, it provides “ ‘ample 
room for mistaken judgments’ by protecting ‘all but the 
plainly incompetent or those who knowingly violate the 
law.’ ” 
Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting 

Malley, 475 U.S. at 343, 341). 

1. After this Court decided Harlow in 1982, federal 
courts routinely recognized the appropriateness of immunity 
in cases in which an official was alleged to have violated a 
bright-line rule, where that rule was not recognized by the 
courts until after the official’s conduct took place. For 
example, in Mitchell v. Forsyth, 472 U.S. 511 (1985), this 
Court held that federal officers were entitled to qualified 
immunity for conducting warrantless wiretaps because, at 
the time the officers acted, it was not clearly established that 
the warrant clause extended to such interceptions. Until this 
Court decided Anderson v. Creighton, 483 U.S. 635 (1987), 
however, federal courts had greater difficulty deciding 
whether qualified immunity was available in cases where the 
general legal standard or rule was well defined at the time 
the officials acted, but the standard—because it did not 
establish a bright line—would not necessarily have put rea- 
sonable officials on notice that their conduct violated the 
plaintiff ’s rights. For example, the principle that “probable 
cause” is necessary to justify a Fourth Amendment search is 
well settled, but that principle by itself would not necessarily 
enable a reasonable law enforcement officer to ascertain 
whether a particular search is permissible under the cir- 
cumstances confronting him. The question thus was whether 
an official could be entitled to qualified immunity where the 
governing legal standard or formula was well recognized, but 

17 

it was not clearly established that the official’s conduct under 
the circumstances, judged according to the settled standard 
or formula, was unlawful. 

In Anderson v. Creighton, 483 U.S. at 639, this Court re- 
solved that question. In Anderson, the court of appeals held 
that qualified immunity was unavailable to an officer who 
allegedly conducted a warrantless search of a home, because 
the legal rule governing such searches—that they are uncon- 
stitutional “unless the searching officers have probable cause 
and there are exigent circumstances—was clearly estab- 
lished” at the time the officer acted. Id. at 640. The court of 
appeals “specifically refused” to address whether the result 
of applying that rule to the facts confronting the officer 
would have made it clear to every reasonable officer that the 
search was unlawful. Id. at 640-641. 

This Court reversed. Addressing the issue of qualified 
immunity generally, the Court first held that immunity may 
not be denied merely because “the relevant ‘ legal rule’ ” was 
“clearly established” at a higher level of generality, e.g., im- 
munity cannot be denied in a due process case simply 
because “the right to due process of law is quite clearly 
established by the Due Process Clause.” 483 U.S. at 639. 
Instead, the Court held, immunity may be denied only if “the 
right the official is alleged to have violated [was] ‘clearly 
established’ in a more particularized, and hence more rele- 
vant, sense: The contours of the right must be sufficiently 
clear that a reasonable official would understand that what 
he is doing violates that right.” Id. at 640 (emphasis added). 
The Court continued: “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 the light of pre-existing law the 
unlawfulness” of the conduct “must be apparent.” Ibid. 

Turning to the case before it, the Court held that the court 
of appeals had erred by denying the officer’s claim of 
qualified immunity merely because the relevant legal test— 

18 

as opposed to the result of applying that test to the facts 
confronting the officer—had been clearly established. 
Anderson, 483 U.S. at 640-641 (court of appeals’ failure “to 
consider” the defendant’s “argument that it was not clearly 
established that the circumstances with which [he] was 
confronted did not constitute probable cause and exigent cir- 
cumstances” was “erroneous”). Instead, the Court ex- 
plained, the court of appeals should have examined the “fact- 
specific” question of whether, “in light of * * * the 
information the searching officers possessed,” a “reasonable 
officer could have believed [the] warrantless search to be 
lawful.” Id. at 641. So long as reasonable officers could 
disagree on the lawfulness of the search under the particular 
facts and circumstances of that case, the Court explained, 
the defendants must be accorded qualified immunity. Ibid. 
See also id. at 638 (“Our cases * * * generally provid[e] 
government officials * * * with a qualified immunity * * * 
as long as their actions could reasonably have been thought 
consistent with the rights they are alleged to have vio- 
lated.”). 

In Anderson, this Court also declined to establish an ex- 
ception to the qualified immunity doctrine for Fourth 
Amendment claims. 483 U.S. at 643-646. The Anderson 
plaintiffs had argued that, because both the Fourth Amend- 
ment and the qualified immunity test articulated in Harlow 
turn on objective reasonableness, there is no reason to 
conduct a qualified immunity inquiry in Fourth Amendment 
cases. Id. at 643. This Court rejected that argument. The 
Court explained that it had previously applied qualified 
immunity in Fourth Amendment cases. Ibid. Moreover, the 
Court observed, the plaintiffs’ argument was logically 
flawed, because it rested on the coincidence of the word 
“reasonable” in the qualified immunity test of Harlow and 
the substantive command of the Fourth Amendment. Ibid. 
Although the word appears in both contexts, it serves 
different purposes and has different meanings in each. In 

19 

the Fourth Amendment, it defines the boundary of lawful 
police conduct; but in qualified immunity, it defines the 
somewhat broader zone of conduct an officer might have, 
based on pre-existing law, reasonably believed to be lawful. 
Where a law enforcement officer makes a reasonable 
although mistaken judgment regarding the lawfulness of a 
search under the Fourth Amendment, the Court held, he 
should “no more be held personally liable in damages than 
should officials making analogous determinations in other 
areas of law.” Id. at 643-644. See also 1 Wayne R. LaFave, 
Search and Seizure § 1.10(b), at 328 (3d ed. 1996) (“[T]he 
Anderson majority rejected” the contention “that a violation 
of the Fourth Amendment, being an ‘unreasonable’ search or 
seizure, could never be reasonable under Harlow.”). 

Anderson makes it clear that, as in other types of cases, 
the question of qualified immunity in Fourth Amendment 
cases is distinct from whether there has been a constitutional 
violation at all. To decide the constitutional question, the 
decisionmaker applies its best understanding of current law 
to determine whether, at bottom, the search or seizure was 
“unreasonable” within the meaning of the Fourth Amend- 
ment. See U.S. Const. Amend. IV; Ohio v. Robinette, 519 
U.S. 33, 39 (1996) (“We have long held that the ‘touchstone of 
the Fourth Amendment is reasonableness.’ ”) (quoting Flor- 
ida v. Jimeno, 500 U.S. 248, 250 (1991)). The Fourth Amend- 
ment reasonableness determination establishes the bounda- 
ries of lawful conduct; it represents an assessment of the 
official action that society is willing to tolerate as consti- 
tutionally acceptable. In contrast, the question for qualified 
immunity purposes is not Fourth Amendment reasonable- 
ness or the legality of the officer’s conduct vel non. It is 
instead whether the officer should be spared the burden of 
litigation and potential monetary liability because—given 
uncertainty in either the legal standard or its application to 
the circumstances confronting the officer at the time he 
acted—an appropriately competent officer could reasonably 

20 

have believed that the search or seizure was reasonable 
within the meaning of the Fourth Amendment, even if such a 
belief would be erroneous. The qualified immunity deter- 
mination thus does not represent a judgment regarding the 
conduct society is prepared to recognize as constitutionally 
permissible. Rather, it represents a judgment that, although 
the conduct is unconstitutional, the officer should not be held 
personally liable because the law did not make the illegality 
of his conduct “obvious” or “apparent” at the time he acted. 
See Hunter, 502 U.S. at 227 (“qualified immunity shields 
agents * * * if ‘a reasonable officer could have believed 
[the seizure] to be lawful, in light of clearly established law 
and the information the arresting officers possessed.’ ”); 
Anderson, 483 U.S. at 641 (officers should be immune where 
they “reasonably but mistakenly conclude” that the search 
was lawful). As the Court explained in Harlow, an officer is 
entitled to immunity unless any reasonably competent 
official would “fairly be said to ‘know’ that the law forbade 
[the] conduct” in question. 457 U.S. at 818. 

This Court repeatedly has recognized that distinction in 
Fourth Amendment search and seizure cases alike. Thus, in 
Anderson v. Creighton, the Court emphasized that, even if 
the search at issue there was unreasonable for Fourth 
Amendment purposes, the officer is entitled to immunity 
unless the unreasonableness of that search, under the cir- 
cumstances the officer confronted, was sufficiently clear that 
“a reasonable official would understand that what he is doing 
violates” the Fourth Amendment, i.e., the unreasonableness 
of the conduct “in the light of pre-existing law * * * must 
be apparent.” Anderson, 483 U.S. at 640 (emphases added). 
And in Malley v. Briggs and Hunter v. Bryant, the Court 
explained that, even if the seizures (arrests) at issue in those 
cases were unreasonable, immunity may be denied only “if, 
on an objective basis, it is obvious that no reasonably com- 
petent officer would have concluded” that they were lawful, 
Malley, 475 U.S. at 341; qualified immunity, those decisions 

21 

further emphasized, must provide “ ‘ample room for 
mistaken judgments’ by protecting ‘all but the plainly 
incompetent or those who knowingly violate the law.’ ” 
Hunter, 502 U.S. at 229 (quoting Malley, 475 U.S. at 343, 
341). 

2. Notwithstanding this Court’s decisions in Anderson, 
Malley, and Hunter, the Ninth Circuit in this case held that, 
for one particular type of Fourth Amendment claim—one 
challenging the reasonableness of a seizure based on the 
force used to effectuate it—a finding of unconstitutionality 
necessarily precludes a finding of qualified immunity, 
because “the inquiry as to whether officers are entitled to 
qualified immunity for the use of excessive force is the same 
as the inquiry on the merits of the excessive force claim.” 
Pet. App. 10a (quoting Alexander v. County of Los Angeles, 
64 F.3d 1315, 1322 (9th Cir. 1995)). The Ninth Circuit 
reached that conclusion based on the fact that both inquiries 
are framed in terms of “objective reasonableness.” It is not 
possible, the Ninth Circuit reasoned, for the force to be 
“objectively reasonable” for purposes of the qualified immu- 
nity inquiry, while also being objectively unreasonable for 
purposes of the Fourth Amendment itself. See, e.g., Pet. 
App. 10a (finding “parity” because both immunity “and the 
merits of an excessive force claim focus on the objective 
reasonableness of the officer’s conduct”); Street v. Parham, 
929 F.2d 537, 540, 541 n.2 (10th Cir. 1991) (once factfinder 
determines that “the force used was unnecessary under the 
circumstances, any question of objective reasonableness” for 
immunity purposes “has also been foreclosed” because “[n]o 
officer could reasonably believe that the use of unreasonable 
force did not violate clearly established law”). 

This Court, however, rejected precisely that reasoning in 
Anderson. In Anderson, the plaintiffs—like the court of ap- 
peals here—contended that the test for qualified immunity 
merely duplicates the Fourth Amendment merits inquiry be- 
cause both require objective reasonableness; it “is not 

22 

possible,” the Anderson plaintiffs argued, “to say that one 
‘reasonably’ acted unreasonably.” 483 U.S. at 643. This 
Court rejected the argument as “unpersuasive,” ibid., be- 
cause it relies on a coincidence of language—the common use 
of the word “reasonable”—in the Fourth Amendment and 
the qualified immunity test articulated in Harlow. If the 
Fourth Amendment had been written to speak of “undue” 
searches and seizures, the Court explained, the fallacy of the 
argument would be apparent, even though the meaning of 
the Amendment would be unchanged: 

[The argument’s] surface appeal is attributable to the 
circumstance that the Fourth Amendment’s guarantees 
have been expressed in terms of “unreasonable” searches 
and seizures. Had an equally serviceable term, such as 
“undue” searches and seizures been employed, what 
might be termed the “reasonably unreasonable” argu- 
ment against application of Harlow to the Fourth 
Amendment would not be available—just as it would be 
available against application of Harlow to the Fifth 
Amendment if the term “reasonable process of law” had 
been employed there. The fact is that, regardless of the 
terminology used, the precise content of most of the 
Constitution’s civil-liberties guarantees rests upon an 
assessment of what accommodation between govern- 
mental need and individual freedom is reasonable * * *. 
Law enforcement officers whose judgments in making 
these difficult determinations are objectively legally rea- 
sonable [although ultimately mistaken] should no more 
be held personally liable in damages than should officials 
making analogous determinations in other areas of law. 

Id. at 643-644. 

The same analysis forecloses the Ninth Circuit’s reasoning 
here. See Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994) 
(Anderson “authoritatively instructed that the objective rea- 
sonableness component of the inquiry as to lawfulness is not 
the same as the objective reasonableness component of the 

23 

inquiry as to qualified immunity”), cert. denied, 513 U.S. 
1076 (1995); Karnes v. Skrutski, 62 F.3d 485, 491-492 n.3 (3d 
Cir. 1995) (the attempt to equate the two inquiries “mis- 
construes the nature of qualified immunity, and in any case 
has been rejected by the Supreme Court”).7 In Graham v. 
Connor, 490 U.S. 386, 397 (1988), this Court held that the 
legality of any use of force under the Fourth Amendment 
depends on “whether the officers’ actions are ‘objectively 
unreasonable’ in light of the circumstances confronting 
them.” See also Tennessee v. Garner, 471 U.S. 1, 8-9 (1985) 
(question is “whether the totality of the circumstances 
justifie[s] a particular sort of * * * seizure”). Expanding 
on that analysis, the Court identified several relevant fac- 
tors, such as the severity of the crime, potential threats to 
officer safety, and whether the suspect resists arrest or 
attempts to flee. 490 U.S. at 396. And it emphasized that 
reasonableness “must be judged from the perspective of a 
reasonable officer on the scene, rather than with the 20/20 

7 Indeed, the Ninth Circuit’s decision essentially resurrects the 
reasoning lower federal courts employed to bar qualified immunity in 
Fourth Amendment probable cause cases before Anderson—and which 
Anderson squarely rejects. Before Anderson, some courts of appeals had 
taken the position that, where an officer conducts a search or arrest 
without probable cause, he could not defend by arguing that he reasonably 
engaged in unreasonable conduct. See Deary v. Three Un-Named Police 
Officers, 746 F.2d 185, 192-193 (3d Cir. 1984); Clark v. Beville, 730 F.2d 
739, 740-741 (11th Cir. 1984). See also Jon O. Newman, Suing the 
Lawbreakers, 87 Yale L.J. 447, 460 (1978) (“[I]f the plaintiff ’s own case 
requires him to show an arrest that was not reasonably based on probable 
cause, what does the [immunity] defense mean? Surely the officer could 
not reasonably believe that there was probable cause for an unlawful 
arrest, for an unlawful arrest is by definition an arrest for which a prudent 
police officer could not reasonably believe that there was probable 
cause.”). Anderson ended that line of cases, holding unequivocally that a 
law enforcement officer could act in an objectively reasonable fashion even 
though he or she had violated the Fourth Amendment’s bar on 
unreasonable searches or seizures. See Oliveira, 23 F.3d at 648 (Newman, 
J.) (conceding that Anderson “authoritatively instruct[s]” that the 
reasoning is mistaken). 

24 

vision of hindsight.” Ibid. The “calculus of reasonableness” 
the Court observed, “must embody allowance for the fact 
that 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 neces- 
sary in a particular situation.” Id. at 396-397. 

Ultimately, however, the Court concluded that the rea- 
sonable force test, like reasonableness under the Fourth 
Amendment generally, “is not capable of precise definition or 
mechanical application,” and depends on “a careful balancing 
of the nature and quality of the intrusion * * * against the 
countervailing governmental interests at stake.” 490 U.S. at 
396 (internal quotation marks omitted). Consequently, like 
the standard of probable cause, neither the standard of 
“objective reasonableness” nor the non-exclusive list of 
factors identified in Graham necessarily establishes with 
clarity whether any particular quantity or form of force, 
under the specific circumstances confronting an officer, will 
be considered unlawful. To the contrary, reasonable judges 
applying Graham often disagree over whether the force 
employed under particular circumstances is constitutionally 
reasonable,8 and so too can reasonable officers. See Wilson 

8 Compare Colston v. Barnhart, 130 F.3d 96 (5th Cir. 1997) (use of 
deadly force objectively reasonable), cert. denied, 525 U.S. 1054 (1998), 
with id. at 103 (DeMoss, J., dissenting) (stating that officer’s “failure to 
give a warning, which he was obliged to give, if feasible, before the use of 
deadly force” indicates that force may have been unreasonable); Sharrar 

v. Felsing, 128 F.3d 810, 820-822 (3d Cir. 1997) (finding use of force rea- 
sonable), with id. at 832-833 (Pollak, J., dissenting) (arguing that holding a 
deadly weapon to head of unarmed suspects may have, given the circum- 
stances, violated the Fourth Amendment); Joos v. Ratliff, 97 F.3d 1125, 
1126 (8th Cir. 1996) (finding use of force reasonable), with id. at 1126-1127 
(M. Arnold, J., dissenting) (“I cannot say that the force applied to Mr. Joos 
was reasonable.”); In re City of Philadelphia Litig., 49 F.3d 945, 965-970 
(3d Cir. 1994) (Greenberg, J.) (finding decision to use incendiary device 
reasonable under the Fourth Amendment), with id. at 974 (Scirica, J., 
concurring and dissenting) (“I do not believe that we can say, as a matter 
of law, that no reasonable jury could conclude that the decision to use the 

25 

v. Layne, 526 U.S. 603, 618 (1999) (“If judges thus disagree 
on a constitutional question, it is unfair to subject police to 
money damages for picking the losing side of the contro- 
versy.”). Consequently, “if officers of reasonable compe- 
tence could disagree on” the lawfulness of the seizure, “im- 
munity should be recognized.” Malley, 457 U.S. at 341. 
Indeed, this Court’s decision in Graham suggests that very 
result, observing that “the officer’s objective ‘good faith’— 
that is, whether he could reasonably have believed that the 
force used did not violate the Fourth Amendment—may be 
relevant to the availability of the qualified immunity defense 
to monetary liability under § 1983.” 490 U.S. at 399 n.12 
(citing Anderson).9 
Here, as in Anderson, the contention that the qualified im- 
munity test and the Fourth Amendment’s requirements con- 
verge rests on the fact that the Fourth Amendment’s guar- 
antee has been expressed in terms of reasonableness. And 
here, as in Anderson, the “precise content of ” the Fourth 
Amendment’s “civil-liberties guarantees” in any situation 
“rests upon an assessment of what accommodation between 
governmental need and individual freedom is reasonable.” 
See Graham, 490 U.S. at 396 (determination of whether the 
force “used to effect a particular seizure” is constitutional 
“requires a careful balancing of the nature and quality of the 
intrusion * * * against the countervailing government in- 

incendiary device was an excessive use of force.”); Forrester v. City of San 
Diego, 25 F.3d 804, 807 (9th Cir. 1994) (“ample evidence supports the 
jury’s conclusion that the officers acted reasonably”), cert. denied, 513 
U.S. 1152 (1995), with id. at 810 (Kleinfeld, J., dissenting) (“As I apply the 
Graham factors one by one, I cannot see how the force used in this case 
could be reasonable.”). 

9 The Court also stated that “[s]ince no claim of qualified immunity has 
been raised in this case, * * * we express no view on its proper 
application in excessive force cases.” 490 U.S. at 399 n.12 (emphasis 
added). That sentence on its face reserves the question how qualified 
immunity applies in excessive force cases, and not, as the court of appeals 
mistakenly believed, Pet. App. 14a n.4, whether it applies. 

26 

terests at stake”). Consequently, here, as in Anderson, 
“[l]aw enforcement officers whose judgments in making 
these difficult determinations are objectively legally reason- 
able should no more be held personally liable in damages 
than should officials making analogous determinations in 
other areas of law.” 

As this Court observed in a different context, “an unrea- 
sonable application of federal law is different from an 
incorrect application of federal law.” Williams v. Taylor, 
120 S. Ct. 1495, 1522 (2000). 

10 Just as a court may apply 
federal law in a manner that is incorrect but not unrea- 
sonable, so too an officer may, in applying Graham to par- 
ticular circumstances, reach a conclusion that is incorrect but 
not unreasonable. So long as it would be a legally reasonable 
(if erroneous) application of Fourth Amendment standards 
for an officer to conclude that his conduct conforms to the 
Fourth Amendment’s requirements—i.e., so long as the con- 
duct is sufficiently close to an unclear constitutional bound- 
ary that officers of appropriate competence could disagree 
on its legality—the officer is entitled to qualified immunity. 
It is only where an officer’s belief in the lawfulness of the 
conduct under Graham would be unreasonable, rather than 
being merely mistaken, that immunity may be denied. 

3. The Ninth Circuit’s rationale obscures a critical differ- 
ence between the functions the “objective reasonableness” 

10 Williams construed the federal habeas corpus statute, 28 U.S.C. 
2254(d)(1), which may contain a less forgiving test of reasonableness than 
that applicable in the qualified immunity context; Section 2254(d)(1) looks 
to whether a decision constitutes a reasonable judicial application of 
established law, while qualified immunity examines whether an appropri- 
ately competent officer reasonably could have thought the conduct lawful. 
See 120 S. Ct. 1506 n.12 (opinion of Stevens, J.) (Congress did not intend to 
draw the concept of “clearly established law” in Section 2254(d)(1) from 
“the doctrinally distinct law of qualified immunity,” although the principle 
may be a “conceptual twin”). It nonetheless remains true that, in the 
qualified immunity and habeas contexts alike, an erroneous application of 
a constitutional test is different from an unreasonable one. 

27 

inquiry serves in the Fourth Amendment and in qualified im- 
munity. As explained above, when a jury or a court deter- 
mines whether constitutionally unreasonable force has been 
used in violation of the Fourth Amendment, it articulates a 
standard to govern the conduct of an officer confronting a 
certain set of facts, i.e., it decides whether the officer’s con- 
duct was “objectively reasonable” for purposes of the Fourth 
Amendment. Graham, 490 U.S. at 397. But when a decision- 
maker resolves the question of immunity, it asks a different 
question—whether that standard of conduct was sufficiently 
obvious in the first instance that it would be objectively 
unreasonable for an officer to have reached the opposite con- 
clusion. Although both inquiries use the term “reasonable” 
(or its converse, “unreasonable”), they employ that term for 
different purposes and in different senses. With respect to 
the Fourth Amendment itself, reasonableness defines the 
boundaries of lawful conduct. In the immunity context, it 
defines the often wider boundaries of what an officer— 
because of a lack of clarity either in the legal standard or in 
its application to the specific facts of the case—might 
reasonably have believed to be lawful at the time he acted. 

Consequently, the determination that an officer’s use of 
force was “unreasonable” for Fourth Amendment purposes 
does not, as a matter of logic, necessarily preclude a deter- 
mination that the question was sufficiently close that reason- 
able officers (or reasonable judges or jurors) could have 
disagreed about that conclusion in advance. As the Second 
Circuit has explained, “to say that the use of constitutionally 
excessive force violates a clearly established right * * * 
begs the open question whether the particular degree of 
force under the particular circumstances was” so clearly 
“excessive” that no reasonably competent officer could have 
thought it lawful. Finnegan v. Fountain, 915 F.2d 817, 823 
(2d Cir. 1990). In other words, a Fourth Amendment viola- 
tion occurs when, even taking due account of the split-second 
nature of an officer’s decision, the conduct turns out to have 

28 

been, on balance, objectively unreasonable. But immunity is 
nonetheless appropriate unless that conduct was sufficiently 
“beyond” the sometimes “hazy border between excessive 
and acceptable force that [the official] had to know he was 
violating the Constitution,” i.e., unless pre-existing case law 
or the “application of the [excessive force] standard would 
inevitably lead every reasonable officer in [the Defendants’] 
position to conclude the force was unlawful.” Priester v. City 
of Riviera Beach, 208 F.3d 919, 926-927 (11th Cir. 2000); Post 

v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (1993), 
amended, 14 F.3d 583 (11th Cir. 1994). 

11 Precisely that 

11 Although findings of excessive force and qualified immunity are not 
necessarily inconsistent, they are not necessarily consistent either. In 
some cases, there will be no set of facts supported by the evidence under 
which the officer’s conduct could both be unconstitutional and sufficiently 
close to an unclear constitutional boundary to warrant immunity. That 
may sometimes be true in cases involving the application of bright-line 
rules—such as the rule concerning the use of deadly force announced in 
Tennessee v. Garner, 471 U.S. 1, 11 (1985)—where the parties present two 
different, and mutually exclusive, versions of the facts. For example, if 
the plaintiff argues that the officer shot him while he was handcuffed and 
compliant, but the officer claims the plaintiff was loose and threatening 
him and others with a deadly weapon, one would not expect a jury 
accepting one of those two stories to reach different conclusions regarding 
Fourth Amendment reasonableness and qualified immunity. Under the 
plaintiff ’s version of the facts, the officer’s conduct is unreasonable, and so 
obviously unreasonable that immunity could not be granted; under the 
officer’s, in contrast, the conduct should be considered reasonable as a 
matter of law. Great caution in this area, however, is warranted. Juries 
are not restricted to accepting one party’s or the other’s view of the facts, 
and they often conclude that the truth lies somewhere in between. More- 
over, even supposedly bright-line rules do not necessarily yield undebata- 
bly certain legal results when applied to specific facts. Thus, Tennessee v. 
Garner holds that officers may not use deadly force to apprehend a fleeing 
felon unless the officer “has probable cause to believe that the felon poses 
a threat of serious physical harm, either to the officer or to others.” 471 
U.S. at 11. Notwithstanding the bright-line nature of that rule, an officer 
could be entitled to immunity even though his conduct was unconsti- 
tutional. For example, an officer might be entitled to qualified immunity 
because it had not been clearly established, at the time he acted, that the 
particular form of force he employed should be considered “deadly” under 

29 

conclusion has been reached at various times by court of 
appeals after court of appeals, including the First, Second, 
Fourth, Fifth, Seventh, Eighth, and Eleventh Circuits. 

12 As 

Garner ; or because the officer reasonably (but mistakenly) concluded that 
the facts were sufficient to establish probable cause to believe that the 
suspect was armed and dangerous. 

12 Napier v. Town of Windham, 187 F.3d 177, 188 (1st Cir. 1999) (be- 
cause officer “could have reasonably believed ” that the force “was 
justified and lawful,” he was, “under the standard enunciated in Anderson, 

* * * entitled to qualified immunity * * *, whether [there was] a viable 
Fourth Amendment violation or not”); Finnegan, 915 F.2d at 823 (immu- 
nity proper unless it “should have been apparent” that the “particular 
degree of force under the particular circumstances was excessive”); 
Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995) (immunity appropriate 
where facts would not support the conclusion “that the force used was so 
excessive that no reasonable officer would have made the same choice”); 
Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994) (immunity question is 
“whether a reasonable officer could have believed that the use of force 
alleged was objectively reasonable”); Brown v. Glossip, 878 F.2d 871, 873 
(5th Cir. 1989) (“We can discern no principled distinction between the 
availability of qualified immunity as a defense to unreasonable searches 

* * * under the fourth amendment and as a defense to an excessive force 
claim also grounded in the fourth amendment.”); Ellis v. Wynalda, 999 
F.2d 243, 246 n.2 (7th Cir. 1993) (“the doctrine of qualified immunity still 
serves an important purpose in cases of alleged excessive force”); Jones v. 
Webb, 45 F.3d 178, 184 (7th Cir. 1995) (summary judgment proper where 
“a reasonable police officer certainly could have believed that the limited 
force applied * * * was not unconstitutionally excessive in light of 
clearly established law”); Landrum v. Moats, 576 F.2d 1320, 1327-1328 
(8th Cir.) (“The defense of good faith is not * * * inapplicable to an action 
based on excessive force.”), cert. denied, 439 U.S. 912 (1978); McGruder v. 
Heagwood, 197 F.3d 918, 920 (8th Cir. 1999) (“objectively reasonable police 
officers could have believed that they were not using excessive force, 
though this belief may have been erroneous”); Gold v. City of Miami, 121 
F.3d 1442, 1446 (11th Cir. 1997) (officer entitled to immunity “unless 
application of the [excessive force] standard would inevitably lead a 
reasonable officer in the defendant’s position to conclude that the force 
was unlawful”) (internal quotation marks omitted), cert. denied, 525 U.S. 
870 (1998). See also Sledd v. Lindsay, 102 F.3d 282, 287 (7th Cir. 1996) 
(plaintiff may defeat qualified immunity by “show[ing] that the force was 
so excessive that, as an objective matter, the police officers would have 
been on notice that they were violating the Fourth Amendment”) 
(emphases added)). We note that, at other times, two of those courts have 

30 

Justice Powell observed while sitting by designation on the 
Fourth Circuit, “[t]here is no principled reason not to allow a 
defense of qualified immunity in an excessive use of force 
claim, when it is allowed in other actions alleging violations 
of the Fourth Amendment.” Slattery v. Rizzo, 939 F.2d 213, 
215 (1991). 

13 

equivocated. One Eighth Circuit case treats the issue as if it were 
unresolved. Nelson v. County of Wright, 162 F.3d 986, 990 n.5 (1998). And 
the Seventh Circuit, in Frazell v. Flanigan, 102 F.3d 877, 886-887 (1996), 
commented favorably on equating the qualified immunity and Fourth 
Amendment reasonableness inquiries. But see Lanigan v. Village of East 
Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997) (“We do not view Frazell as 
closing the door on” the possibility of permitting an officer to “claim the 
shield of qualified immunity” despite “his unreasonable use of force”). See 
also McNair v. Coffey, No. 00-1139, 2000 WL 1801253 (7th Cir. Dec. 8, 
2000); pp. 36-38 & notes 17-18, infra. 

13 Ironically, the decision below—like others that attempt to equate the 
Fourth Amendment and qualified immunity inquiries—tends to dilute the 
substantive guarantees of the Fourth Amendment as much as it under- 
mines qualified immunity. For example, the decision below at points sug- 
gests that the two inquiries are the same because, under the Fourth 
Amendment, conduct is “reasonable” if an officer reasonably could have 
believed it to be reasonable. See Pet. App. 10a (declaring that a seizure is 
reasonable under Fourth Amendment if “a reasonable officer could have 
believed that the force used was necessary under the circumstances”) 
(emphasis added). See also Scott v. District of Columbia, 101 F.3d 748, 
759 (D.C. Cir. 1996) (equating the inquiries by holding that the Fourth 
Amendment is violated where “the excessiveness of the force is so 
apparent that no reasonable officer could have believed in the lawfulness 
of his actions”) (emphases added; quotation marks omitted), cert. denied, 
520 U.S. 1231 (1997). That attempt to equate the two inquiries, however, 
misstates and improperly dilutes the Fourth Amendment standard. An 
application of force violates the Fourth Amendment if the force is, on an 
objective basis, “unreasonable,” as this Court’s cases and constitutional 
text both attest. See U.S. Const. Amend. IV (guaranteeing the “right of 
the people to be secure in their persons, houses, papers, and effects, 
against unreasonable searches and seizures”); Graham, 490 U.S. at 396 
(issue is whether “the force used to effect a particular seizure is 
‘reasonable’ under the Fourth Amendment”). The fact that a reasonable 
officer—based on pre-existing law—could have believed his conduct to be 
constitutionally reasonable does not automatically make that conduct 
reasonable for Fourth Amendment purposes. Indeed, equating the 

31 

B. The Ninth Circuit’s Attempt To Reconcile Its Decision 

With This Court’s Decisions Is Unpersuasive 

Notwithstanding its reliance on the very reasoning this 
Court rejected as “unpersuasive” in Anderson v. Creighton, 
the court of appeals attempted to reconcile its decision with 
Anderson in a footnote. Pet. App. 14a n.4. Under Ninth 
Circuit precedent, the court of appeals pointed out, the 
qualified immunity inquiry must proceed in two steps. First, 
the court asks whether the “law”—by which the Ninth 
Circuit means the applicable legal rule, governing factors, 
verbal formula, or standard—“was clearly established” at 
the time the officer acted. Id. at 8a; Headwaters Forest Def. 

v. County of Humboldt, 211 F.3d 1121, 1141 (9th Cir. 2000) 
(declaring that, for purposes of the first prong, “the law 
concerning the use of excessive force is clearly established” 
even though its application in the particular factual context 
was “unprecedented,” because “the law under Graham and 
its progeny concerning the relevant factors for assessing the 
limits on police use of force under the Fourth Amendment” 

“unreasonable” force proscribed by the Fourth Amendment with force 
that no reasonable officer could consider reasonable renders the Fourth 
Amendment inquiry hopelessly circular. If taken seriously, such an 
approach would arrest the development of substantive Fourth Amend- 
ment law, labeling any seizure as “reasonable” whenever reasonable 
minds could disagree on the outcome under Graham. Nor does it matter 
that, under Graham, reasonableness determinations allow for reasonable 
factual mistakes, and must be made from the perspective of the officers on 
the scene, with due regard for the split-second nature of their decisions. 
Because of those requirements, there may be a range of “reasonable” 
options available to an officer in any given situation, and officers are not 
required to select the most reasonable or least forceful option. But it does 
not follow that a particular use of force is automatically “reasonable” 
within the meaning of the Fourth Amendment merely because an officer, 
based on the law existing at the time he acted, could reasonably have 
believed that to be the case. Instead, where an officer’s choice is beyond 
the range of reasonable alternatives, his conduct violates the Fourth 
Amendment, even if he is entitled to immunity because his mistake was, in 
light of pre-existing law, justifiable. 

32 

are well established). See also Pet. App. 29a (district court’s 
similar reasoning in this case). Second, the court conducts 
what it terms the “reasonable officer” inquiry, asking 
whether a reasonable officer could have believed the conduct 
to be lawful under the clearly articulated standard identified 
in the first prong. Id. at 8a. 

Attempting to distinguish Anderson based on that two- 
pronged approach, the court of appeals declared that most of 
this “Court’s qualified immunity discussion in Anderson 
focuses on the proper formulation of the ‘clearly estab- 
lished’ ” step, or “the first prong” of that two-step analysis. 
Pet. App. 14a n.14. Anderson, the Court continued, does not 
“address the application of the second prong of the qualified 
immunity analysis,” which is whether a reasonable officer 
could have believed his conduct to be lawful under the 
established standard. Ibid. In essence, the court of appeals 
seemed to reason, qualified immunity can be appropriate in 
excessive force cases, consistent with Anderson, only when 
there is uncertainty about the verbal formula or legal 
standard to be applied (the Ninth Circuit’s prong one), but 
not where there is uncertainty about the outcome of 
applying a settled formula to the facts confronting the officer 
(the Ninth Circuit’s prong two). See id. at 13a-14a (dis- 
tinguishing earlier Ninth Circuit en banc decision according 
an officer immunity notwithstanding his use of unreasonable 
force as resting on a change in the governing Fourth Amend- 
ment standard). See also pp. 8-9, supra. Far from rec- 
onciling the decision below with Anderson, however, that 
purported distinction underscores the inconsistency. 

1. As an initial matter, Anderson does not itself contem- 
plate dividing the qualified immunity inquiry into two dis- 
tinct “prongs,” one involving whether there was “clearly 
established” law, and the other involving whether a rea- 
sonable officer could have believed his conduct to be lawful. 
Instead, Anderson makes it clear that the Ninth Circuit’s 
second prong (whether a reasonable officer could have 

33 

thought the conduct lawful) provides the answer to the first 
(whether the law is “clearly established”). In Anderson 
itself, this Court explained that the law is “clearly estab- 
lished” in the sense relevant to the qualified immunity 
inquiry only if “[t]he contours of the right” are “sufficiently 
clear that a reasonable official would understand that what 
he is doing violates that right.” 483 U.S. at 640 (emphasis 
added). And in Wilson v. Layne, 526 U.S. at 614-615, this 
Court repeated that observation, declaring that “ ‘[c]learly 
established’ for purposes of qualified immunity means that 
‘[t]he contours of the right must be sufficiently clear that a 
reasonable official would understand that what he is doing 
violates that right.’ ” Whether or not the general legal 
standard is clear, if reasonable officers could have disagreed 
on the conduct’s lawfulness at the time the defendant acted, 
the law was not “clearly established” and immunity must be 
recognized. Malley, 475 U.S. at 341. Accordingly, Anderson 
cannot be distinguished as relating to “prong one” instead of 
“prong two” of the Ninth Circuit’s two-prong immunity test 
because, under Anderson, the second “prong” of the Ninth 
Circuit’s formulation (the reasonable officer test) is the 
means of answering the clearly established law inquiry. 
Whether or not the relevant legal formula or standard is well 
recognized, the law is not “clearly established” if officers 
could reasonably have believed that what they were doing 
would not violate the plaintiff ’s rights. See Lennon, 66 F.3d 
at 422 (“the defendants may nevertheless enjoy qualified 
immunity if it was objectively reasonable for them to believe 
that their actions did not violate those rights”); Lanigan, 110 
F.3d at 472 (under the “analysis dictated by Anderson v. 
Creighton,” court must “evaulat[e] the specific facts con- 
fronting an officer at the time of the challenged conduct”). 

14 

14 Contrary to the Ninth Circuit’s supposition, it is not true that 
qualified immunity can be resolved solely by reference to the “first prong” 
of its test, i.e., that a defendant “will always be entitled to qualified 

34 

2. In any event, the court of appeals was flatly incorrect 
to assert (Pet. App. 14a n.4) that Anderson v. Creighton 
addresses the Ninth Circuit’s first prong (i.e., whether the 
governing legal formula or standard was well settled), rather 
than the second prong (whether an officer could have 
thought his conduct lawful). In Anderson, there was no 
issue regarding the relevant legal formula (the Ninth Cir- 
cuit’s first prong) because the legal standard governing the 
conduct there—the warrantless search of a home—was well 
settled: Such warrantless searches, this Court explained, 
had long been held to be unlawful unless the officer has 
probable cause and exigent circumstances. See Anderson, 
483 U.S. at 640. 

15 Surely Anderson cannot be distinguished 
as a case involving uncertainty regarding the governing 
legal standard where Anderson itself characterizes the 
standard as longstanding and undisputed. 

immunity when” the legal test “governing his or her conduct * * * was 
not clearly established.” Pet. App. 14a. In some cases, it may be suffi- 
ciently clear that certain conduct is unconstitutional even though the 
governing legal principle has not been reduced to a single articulation. 
Conversely, Anderson v. Creighton teaches that certainty regarding the 
legal test is not itself a sufficient basis for denying immunity. Instead, an 
officer is entitled to qualified immunity if a reasonably competent official, 
applying the governing legal test to the facts before him, could reasonably 
have believed that his conduct was lawful. See Anderson, 483 U.S. at 638 
(“Our cases * * * generally provid[e] government officials performing 
discretionary functions with a qualified immunity as long as their actions 
could reasonably have been thought consistent with the rights they are 
alleged to have violated.”). 

15 See also Steagald v. United States, 451 U.S. 204, 211 (1981) (except 
for cases of “consent or exigent circumstances,” the Court has “consis- 
tently held that entry into a home to conduct a search or make an arrest is 
unreasonable under the Fourth Amendment unless done pursuant to a 
warrant”); Payton v. New York, 445 U.S. 573, 578 (1980); Wong Sun v. 
United States, 371 U.S. 471, 479 (1963) (Probable cause is “evidence which 
would ‘warrant a man of reasonable caution in the belief ’ that a felony has 
been committed.”) (quoting Carroll v. United States, 267 U.S. 132, 162 
(1925)). 

35 

To the contrary, Anderson’s core holding is predicated on 
the fact that the “ legal rule” governing the officer’s conduct 
in that case was well settled. The question Anderson de- 
cided was whether, given the clarity of the relevant legal 
standard, qualified immunity could still protect officers who 
might have reasonably erred in applying that established 
standard to the circumstances confronting them, i.e., in 
determining that probable cause and exigent circumstances 
were present. 483 U.S. at 638-641. 

16 The court of appeals in 
that case had refused to permit immunity in those circum- 
stances, holding that the clarity of the general legal standard 
precluded qualified immunity. This Court reversed, holding 
that immunity protects officers even if the legal standard is 
clear, where it is not clear that every reasonable officer 
applying that legal standard to the facts of the case would 
understand the conduct to be unlawful. See id. at 640-641 
(court of appeals erred by refusing to consider “the argu- 
ment that it was not clearly established that the cir- 
cumstances with which Anderson was confronted did not 
constitute probable cause and exigent circumstances”); 1 
LaFave, supra, § 1.10(b), at 328 (“the question to be con- 
sidered on remand * * * ‘[wa]s the objective (albeit fact- 
specific) question whether a reasonable officer could have 
believed Anderson’s warrantless search to be lawful’ ”). 

See 

also Hunter, 502 U.S. at 228 (officers entitled to immunity “if 

16 Indeed, the question presented in Anderson was whether “the 
qualified immunity provided by Harlow [may be] overcome by a mere 
showing that the general legal rule was well established, or must the court 
further determine that the official could not have reasonably believed that 
his own conduct was lawful in light of the facts and circumstances as they 
reasonably appeared to him.” Gov’t Br. at i, Anderson v. Creighton (No. 
85-1520). That, moreover, was the question the parties briefed, see, e.g., 
id. at 13-30; Resp. Br. at 19-30, Anderson v. Creighton (No. 85-1520). And 
it was the question presented as the dissenting opinion understood it as 
well, Anderson, 483 U.S. at 657 (Stevens, J., dissenting) (arguing that, 
before discovery takes place, “the Harlow requirement concerning the 
clearly established law applies to the rule on which the plaintiff relies”). 

36 

a reasonable officer could have believed” probable cause 
existed). As this Court explained, the relevant question for 
qualified immunity is “whether a reasonable officer could 
have believed Anderson’s warrantless search to be lawful, in 
light of clearly established law and the information the 
searching officers possessed.” 483 U.S. at 641. That is what 
the Ninth Circuit considers to be the second prong—the rea- 
sonable officer test—expressed in nearly identical language. 
See Pet. App. 8a (under second prong, court asks whether “a 
reasonable official could have believed the conduct was 
lawful”). 

3. Stripped of the prong-one and prong-two labels, the 
Ninth Circuit’s rationale rests on the assumption that, be- 
cause the legal standard or test applicable in excessive force 
cases was settled by this Court’s decision in Graham, 
officers cannot be entitled to qualified immunity if they vio- 
late constitutional norms. See Pet. App. 13a-14a. Stating 
that position more directly, another court of appeals has 
opined that “[u]ncertainty about the legal standard” appli- 
cable to excessive force cases “ended * * * with [this 
Court’s] opinion in Graham”; while “[t]here may still be un- 
certainty in the application of that standard to particular 
situations,” that court continued, “this is not the kind of legal 
uncertainty that Anderson and Wilson discuss.” McNair v. 
Coffey, No. 00-1139, 2000 WL 1801253, at *2 (7th Cir. Dec. 8, 
2000). 

As the foregoing discussion (pp. 16-21, 34-35 & note 16, 
supra) explains, that characterization of Anderson is exactly 
backwards: “[U]ncertainty in the application of ” well-settled 
legal standards “to particular situations” is precisely “the 
kind of legal uncertainty that” Anderson addressed. In An- 
derson itself, this Court specifically held that, even though 
the legal standards governing the search—the requirement 
of probable cause and exigent circumstances—were well 
established, the officer was entitled to qualified immunity 
unless it should have been obvious to him that probable 

37 

cause and exigent circumstances were absent on the facts 
before him. 483 U.S. at 640-641. 

17 By the same token, even 
though the standard of “objective reasonableness” and the 
non-exclusive list of relevant factors from Graham are well 
established here, Specialist Saucier is entitled to qualified 
immunity unless it should have been obvious to him that, 
under the facts before him and in light of pre-existing law, 
the force he employed was objectively unreasonable within 

17 Any attempt to limit qualified immunity to cases in which the ab- 
stract legal rule or test—as opposed to the result of applying it—is 
unsettled, moreover, would effectively convert the qualified immunity 
defense into a pleading rule, a result that Anderson specifically sought to 
avoid. As this Court observed, such an approach would permit plaintiffs 
to defeat immunity by characterizing their rights very generally, e.g., by 
arguing that the right to due process is clearly established, and by arguing 
that the defendant is merely disputing an application of the general rule to 
the specific facts of the case. 483 U.S. at 639-640. Because rules of law 
“[i]n constitutional adjudication, as in the common law, * * * often de- 
velop incrementally as earlier decisions are applied to new factual situa- 
tions,” Williams v. Taylor, 120 S. Ct. at 1508 (opinion of Stevens, J.), the 
line between a new rule or principle and a mere application of an existing 
principle is a slippery one, and potentially subject to manipulation. See 
Anderson, 483 U.S. at 640 n.2. In fact, the court of appeals’ decision in 
McNair, supra, appears to engage in precisely such a shell game. In that 
case, the defendant argued that his conduct—he displayed force by point- 
ing a gun at the plaintiffs—did not violate the plaintiffs’ clearly established 
Fourth Amendment rights. The court of appeals suggested that it would 
have considered that argument for immunity purposes if the defendant 
had characterized the issue as purely legal, arguing that it was not clearly 
established that a display of force causing fright, as opposed to the 
application of force through physical contact, can constitute an excessive 
use of force under the Fourth Amendment. McNair, 2000 WL 1801253, at 

*1, *3. But it declined to entertain the argument because the defendant 
had characterized his contention differently, taking the abstract legal 
rules “as settled,” and arguing only that, under those rules, it was not 
clearly established that his conduct would violate the plaintiff ’s rights. 
Ibid. As Anderson makes clear, the availability of immunity should not 
turn on how immunity is pleaded any more than it should depend on how 
the constitutional violation is characterized. Instead, an officer is entitled 
to immunity unless the contours of the plaintiff ’s rights are sufficiently 
clear that a reasonable officer would understand that his actual con- 
duct—“what he is doing”—violates the plaintiff ’s rights. 

38 

the meaning of the Fourth Amendment. See Anderson, 483 
U.S. at 640 (immunity may be denied only if “a reasonable 
official would understand that what he is doing violates that 
right,” i.e., “the unlawfulness must be apparent.”) (emphases 
added); id. at 638 (“Our cases * * * generally provid[e] gov- 
ernment officials * * * with a qualified immunity as long as 
their actions could reasonably have been thought consistent 
with the rights they are alleged to have violated”). 

18 

18 In McNair, the court of appeals asserted a few other reasons for 
restricting the scope of the qualified immunity defense in Fourth Amend- 
ment cases, but none is consistent with Anderson, and none is persuasive. 
First, the McNair court suggested that allowing the defense of immunity 
in this context—asking “whether a reasonable person would have realized 
that his conduct violates established legal standards—[would] reintro- 
duce[] the element of subjectivity that Graham deliberately removed.” 
McNair, 2000 WL 1801253, at *3. This Court rejected that argument in 
Anderson. “[C]ontrary to the Creightons’ assertion,” this Court stated, 
application of the no-reasonable-officer test “does not reintroduce into 
qualified immunity analysis the inquiry into officials’ subjective intent 

* * *. [T]he relevant question in this case, for example, is the objective 
(albeit fact-specific) question whether a reasonable officer could have be- 
lieved Anderson’s warrantless search to be lawful, in light of clearly estab- 
lished law and the information the searching officers possessed. Ander- 
son’s subjective beliefs about the search are irrelevant.” 483 U.S. at 641. 
Second, the McNair court suggested that qualified immunity is an extra- 
statutory “judicial invention” that should be narrowly construed. 2000 WL 
1801253, at *4. That rationale is doubly flawed. For one thing, it cannot 
support expanded liability in cases like this one or Anderson, since the 
Bivens cause of action itself was judicially crafted. For another, even in 
the context of actions under 42 U.S.C. 1983, the Court did not “invent” the 
qualified immunity defense in the sense in which McNair uses that term; 
instead, the Court recognized the defense as a matter of statutory con- 
struction. See Wood, 420 U.S. at 316-317 (immunity a matter of “statutory 
construction” because Section 1983 evidenced no intent to abolish long- 
standing immunity doctrines). Third, McNair suggests that, as a histori- 
cal matter, the police faced “absolute liability” for any invasion of the 
rights protected by the Fourth Amendment. 2000 WL 1801253, at *4. But 
this Court has repeatedly applied qualified immunity in Fourth Amend- 
ment cases such as Anderson and Malley, and in any event expressly 
rejected the common law rule of strict liability in Anderson. There, the 
plaintiffs claimed that immunity should “not be provided to police officers 
who conduct unlawful warrantless searches” because “officers conducting 

39 

C. The Ninth Circuit’s Decision Undermines The Ability 

Of Courts To Dispose Of Suits Before Trial Under 

Qualified Immunity 

Because qualified immunity is “an immunity from suit 
rather than a mere defense to liability,” Mitchell, 472 U.S. at 
526, one of its central “purposes * * * is to spare a defen- 
dant not only unwarranted liability, but unwarranted de- 
mands customarily imposed upon those defending a drawn 
out lawsuit,” Siegert v. Gilley, 500 U.S. 226, 232 (1991). Con- 
sequently, this Court “repeatedly ha[s] stressed the impor- 
tance of resolving immunity questions at the earliest possi- 
ble stage in litigation,” so that officers do not “err always on 
the side of caution because they fear being sued.” Hunter, 
502 U.S. at 227, 229 (internal quotation marks omitted). 

The Ninth Circuit’s approach to qualified immunity—by 
equating qualified immunity with the ultimate constitutional 
issue—is inconsistent with that purpose. Under that court’s 
analysis, the reasonableness of any use of force is usually “a 
question of fact” for the jury; as a result, qualified immunity 
must be denied unless “the evidence compels the conclusion 
that [the officer’s] use of force was reasonable.” Pet. App. 
15a n.5 (emphasis added). 

19 This Court, however, has 

such searches were,” at common law, “strictly liable.” 483 U.S. at 644. 
This Court concluded otherwise, explaining that it had “never suggested 
that the precise contours of official immunity can and should be slavishly 
derived by the often arcane rules of the common law. That notion is 
plainly contradicted by Harlow, where the Court completely reformulated 
qualified immunity along principles not at all embodied in the common law 

* * *.” Id. at 645. Indeed, the Court continued, “Harlow clearly ex- 
pressed the understanding that the general principle of qualified immunity 
it established would be applied ‘across the board.’ ” Ibid. Nowhere does 
the decision below or McNair explain why excessive force cases should be 
excepted from Harlow’s otherwise “across the board” application. 

19 The Fourth Amendment reasonableness determination, on any par- 
ticular set of historical facts, is more properly characterized as a mixed 
question of law and fact. See Ornelas v. United States, 517 U.S. 690, 696 
(1996). In Ornelas, this Court held that similar Fourth Amendment mixed 
fact-law questions, such as whether an officer had reasonable suspicion or 

40 

already reversed the Ninth Circuit for adopting a virtually 
indistinguishable standard in the probable cause context. In 
Hunter v. Bryant, the Ninth Circuit held that “[w]hether a 
reasonable officer could have believed he had probable cause 
is a question for the trier of fact, and summary judgment 

* * * based on lack of probable cause is proper only if there 
is only one reasonable conclusion a jury could reach.” 502 
U.S. at 228. This Court rejected that formulation because “it 
routinely places the question of immunity in the hands of the 
jury.” Ibid. The Ninth Circuit’s formulation of the qualified 
immunity test here should be rejected for the same reason. 
The Ninth Circuit’s approach, moreover, turns the immu- 
nity inquiry on its head. Summary judgment on qualified 
immunity in an excessive force case should not be limited to 
cases where the force was so clearly reasonable as to “com- 
pel[]” the conclusion that it was lawful. Pet. App. 15a n.5. 
Quite the opposite: Summary judgment on qualified immu- 
nity is required if, viewing the facts in the light most 
favorable to (and resolving all factual disputes in favor of ) 
the plaintiff, a reasonably competent officer could have 
believed that the force was reasonable. Malley, 475 U.S. at 
341 (immunity may be denied only “if, on an objective basis, 
it is obvious that no reasonably competent officer would have 
concluded” that the conduct was constitutional). In other 

probable cause on the facts before him, are subject to de novo review. See 
id. at 697. See also United States v. Rios, 88 F.3d 867, 869 (10th Cir. 1996) 
(Fourth Amendment reasonableness, on a given set of historical facts, is 
an “ultimate question of law” subject to de novo review); United States v. 
Mills, 122 F.3d 346, 348 (7th Cir.) (“[T]he rationale of Ornelas cannot be 
limited, in a principled manner,” to the Fourth Amendment issues of 
reasonable suspicion and probable cause.), cert. denied, 522 U.S. 1033 
(1997). This Court has held that the issue of qualified immunity—whether 
the officer’s conduct was proscribed by clearly established law—is a legal 
issue subject to de novo review. See Elder v. Holloway, 510 U.S. 510, 516 
(1994) (“Whether an asserted federal right was clearly established at a 
particular time, so that a public official who allegedly violated the right 
has no qualified immunity, presents a question of law” that “must be 
resolved de novo on appeal.”). 

41 

words, in deciding qualified immunity, courts must resolve 
all disputes regarding historical facts—i.e., what actually 
happened—in favor of the plaintiff, and draw all inferences 
in the plaintiff ’s favor. But having identified the most 
plaintiff-favorable fact pattern supported by the evidence, 
the court must grant the officer immunity unless, under 
those facts and pre-existing law, no appropriately competent 
officer could reasonably have believed that the force was 
lawful. Thus, if there were a fact dispute concerning 
whether or not an officer gratuitously struck a compliant 
suspect with a truncheon, qualified immunity would be 
inappropriate, and obviously so; any belief that the Fourth 
Amendment permits such undue violence would be patently 
unreasonable. But where the facts at most raise a reason- 
able question regarding the lawfulness of the officer’s con- 
duct, immunity must be recognized. 

For that reason, qualified immunity serves an “important 
purpose” in helping terminate insubstantial claims at the 
summary judgment stage. See Ellis v. Wynalda, 999 F.2d 
243, 246 n.2 (7th Cir. 1993). It does not excuse the court from 
viewing the evidence in the light most favorable to the non- 
moving party. But once the facts are so viewed, it permits 
the entry of judgment not merely where every rational 
decisionmaker would think the force lawful, but also where 
“reasonable minds could differ.” Ibid. As one court of 
appeals explained, qualified immunity must be granted un- 
less the relevant standards or cases “truly compel (not just 
suggest or allow or raise a question about), the conclusion 

* * * that what defendant [allegedly did] violates federal 
law in the circumstances.” Priester, 208 F.3d at 927. See 
also Hunter, 502 U.S. at 227 (“qualified immunity shields 
agents * * * if ‘a reasonable officer could have believed’ ” 
the conduct “to be lawful”). Because the Ninth Circuit’s test 
inverts that analysis—and precludes summary judgment un- 
less every reasonable officer (and every reasonable judge or 
juror) would agree that the force was proper—it impermissi- 

42 

bly prevents qualified immunity from serving as an immu- 
nity to suit, and reduces it to a mere defense to liability. 

II. THE COURT OF APPEALS ERRED IN DENYING 
QUALIFIED IMMUNITY IN THIS CASE 

This case illustrates the danger of equating the Fourth 
Amendment and qualified immunity inquiries. As the dis- 
trict court noted, Specialist Saucier asserted qualified immu- 
nity for (1) the “degree of force used to remove [respondent] 
from the crowd,” and (2) the force used to “place [respon- 
dent] inside the van.” Pet. App. 29a. See also id. at 27a 
(analyzing the two uses of force). The court of appeals in this 
case held that Specialist Saucier was not entitled to qualified 
immunity for those uses of force “because the amount of 
force he used” was not “so minimal that it was per se rea- 
sonable.” Pet. App. 14a-15a. Whatever one might think of 
the constitutionality of the force Specialist Saucier used in 
the circumstances that confronted him, that force was not so 
clearly unlawful under prior law that Saucier could not have 
reasonably thought it lawful. To the contrary, the Ninth 
Circuit’s conclusion that the force used was unreasonable 
comes perilously close to establishing a new—and 
unjustified—rule that officers may not use any physical force 
to restrain detainees when effectuating a seizure in contexts 
like this one. 

A. Specialist Saucier’s Use Of Force To Detain 

Respondent Did Not Violate Clearly Established 
Constitutional Rights 

The first use of force challenged by respondent is the force 
Specialist Saucier, together with Sergeant Parker, employed 
to remove respondent from the crowd at the Presidio. It is 
not disputed that, as respondent unfolded his banner near 
the platform where the Vice President was speaking, Sau- 
cier and Parker each took one of respondent’s arms, lifted 
him partially off the ground, and rushed him out of the crowd 
to a waiting military van. See Pet. App. 4a, 24a-25a; id. at 

43 

27a (describing videotape); pp. 3-4, supra. The Ninth Circuit 
denied Saucier’s claim that he was entitled to immunity for 
that conduct, concluding that “no reasonable officer could 
have believed that” grasping respondent’s arm “without 
warning or speaking to” him, and partially carrying respon- 
dent from the crowd, “was necessary under the circum- 
stances,” id. at 15a, because respondent’s crime was not 
serious and respondent did not pose an immediate threat to 
public safety. The court stated: 

Unfurling a banner at a public event does not appear to 
be a particularly severe crime. Katz was sixty years old 
and wearing a leg brace. There is no indication he was 
armed or dangerous. From all that appears at this stage 
of the case, he did not pose an immediate threat to the 
safety of the officers or anyone else. 

Ibid. 

By holding that the use of such minimal force is not only 
unreasonable, but so obviously unreasonable that no officer 
could have thought it lawful, the Ninth Circuit has effec- 
tively held that, in cases like this, officers are prohibited 
from using any force at all to make an arrest. That sugges- 
tion is difficult to reconcile with this Court’s decision in 
Graham, which recognizes “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. It is contrary to the decisions of 
other courts of appeals, which uphold as reasonable appli- 
cations of force that are significantly more intrusive where, 
as here, no injury results. 

20 And it appears to contravene the 

20 See, e.g., Curd v. City Court of Judsonia, 141 F.3d 839, 841 (8th Cir.) 
(where officer “seized [arrestee’s] arm, spun her around and told her to 
get into the police car,” the “limited amount of force” was not “objectively 
unreasonable” under Graham, “[e]ven if * * * unnecessary to effect the 
arrest,” especially given that the plaintiff “does not allege, and there is no 
evidence, that she was injured or experienced physical pain”), cert. denied, 
525 U.S. 888 (1998); Hinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir. 

44 

policies of numerous law enforcement agencies, which re- 
quire officers to apply some physical restraint, such as hand- 
cuffs, when arresting individuals to ensure that those indivi- 
duals do not pose a danger to the officers or themselves. 

21 

The Ninth Circuit’s ruling, moreover, blinks reality. The 
officers in this case, charged with ensuring the safety of the 
Vice President, who was standing steps away, had a split 
second to react to respondent’s movement toward and at the 
barrier that separated the crowd from the Vice President. 

1993) (officers did not violate constitutional norms where they grabbed 
plaintiff from behind, announcing he was under arrest, and used increased 
force when he resisted); Williams v. Bramer, 180 F.3d 699, 703-704 (5th 
Cir. 1999) (declining to find Fourth Amendment violation absent injury 
where force was, in context, relatively minimal). Indeed, the Eleventh 
Circuit has, in a long line of qualified immunity cases, repeatedly applied 
the “de minimis” label to uses of force that exceed the amount used in this 
case. Nolin v. Isbell, 207 F.3d 1253, 1255-1258 (2000) (summarizing). See, 

e.g., Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir. 1997) 
(immunity proper where officer “slammed” the plaintiff against a wall and 
“kicked his legs apart,” causing him to suffer pain). 

21 See, e.g., Federal Bureau of Investigation, Manual of Investigative 
Operations and Guidelines, Pt. II, § 11-1.5 (effective May 26, 1989) (“[I]t is 
required that all arrested persons be handcuffed.”); International Ass’n of 
Chiefs of Police/National Law Enforcement Policy Center, Model Policy 
on Transportation of Prisoners (Oct. 1, 1997) (“Officers shall handcuff 
(double-locked) all prisoners.”). For that reason, in Limbert v. Twin Falls 
County, 955 P.2d 1123 (1998), the Idaho Supreme Court rejected a 
constitutional challenge to a Sheriff Department policy of handcuffing all 
arrested individuals, even if they appear to be “non-threatening,” and 
even as applied to a woman who suffered from asthma and cystic fibrosis. 
“Even the most meek-appearing and fragile suspect,” the court explained, 
“may have the ability to place the officer, the public, and the suspect at 
great risk.” 955 P.2d at 1127. In this case, both Specialist Saucier and 
Sergeant Parker were keenly aware of that fact. See J.A. 41 (“Any person 
can be a physical threat.”) (Saucier Dep.); J.A. 53 (respondent “could have 
been a danger to a lot of different people” if he were “loose” with “a wea- 
pon”) (Parker Dep.). There may be special situations in which the reason- 
able amount of force is limited to the application of handcuffs or similar 
restraints. This case, however, does not present that issue. The minimal 
amount of force the officers employed to obtain control over and remove 
respondent from the crowd was not unreasonable, and surely was not so 
unreasonable that no competent officer could have thought it lawful. 

45 

They were confronted with an individual who was openly 
flouting the law; they faced the possibility of escalation, in 
view of the presence of other potential protestors in the 
large crowd; and they could not know for certain how 
respondent himself might react to them. Accordingly, they 
used surprise to their advantage by quickly seizing respon- 
dent and whisking him away. The court of appeals concluded 
that such a strategy was unreasonable because, in its view, 
the officers should have “warn[ed] or sp[oken] to” respon- 
dent first. Pet. App. 15a. In hindsight, speaking to respon- 
dent before seizing him may have been a reasonable alter- 
native. But it also could have produced resistance, flight, 
escalation, or a commotion. 

22 We know of no decision of this 
Court holding that the police, confronted with a suspect who 
openly defies the law, must discuss the possibility of seizure 
with him in advance, and may not use surprise to take him 
into custody quickly and with minimal disturbance. More- 
over, even if the Fourth Amendment and Graham could be 
construed as imposing such a requirement, Specialist Saucier 
is entitled to qualified immunity, since he could not be said to 
have been “plainly incompetent” or “knowingly violating the 
law” for failing to anticipate and conform his conduct to it 
under the circumstances he confronted. Malley, 475 U.S. at 
341. 

The court of appeals, moreover, fundamentally erred by 
employing hindsight to second-guess the perceptions and 
actions of the officers on the scene. Fourth Amendment and 
qualified immunity issues, this Court has admonished, must 
be examined from “the perspective of a reasonable officer on 
the scene,” Graham, 490 U.S. at 396, and should not be 
reconstructed in view of the more expansive knowledge that 

22 See J.A. 44 (Saucier Dep.) (goal was to avoid “draw[ing] that much 
attention” if the officers “didn’t have to”; officers wanted to “diffuse the 
situation” by getting respondent “into the van as quickly as possible”); 
J.A. 67 (Lee Dep.) (officers “were supposed to diffuse the situation,” if 
necessary by “removing that person as quickly as possible”). 

46 

extensive litigation and leisurely examination can produce 
years later, see Hunter, 502 U.S. at 228 (“the court should 
ask whether the agents acted reasonably under settled law 
in the circumstances, not whether another reasonable, or 
more reasonable, interpretation of the events can be con- 
structed five years after the fact”). In this case, the court of 
appeals repeatedly ignored those admonitions. First, with- 
out acknowledging the atmosphere of uncertainty confront- 
ing the officers, the court of appeals faulted their treatment 
of respondent because, “at this stage of the case,” it 
“appears” that respondent posed no “immediate threat.” 
Pet. App. 15a. See also ibid. (relying on the fact that “[t]here 
is no indication” that respondent was armed or dangerous) 
(emphasis added). The relevant question, however, is not 
what “appears” now, after years of litigation; the question 
instead is what the officers knew at the time. Hunter, 502 
U.S. at 228. As explained above, in the split second Saucier 
and Parker had, they could not predict how respondent 
would react to being detained; nor could they know what he 
might have had concealed in his clothing. J.A. 50, 53, 59 
(Parker Dep.); pp. 44-45 & note 21, supra. Moreover, the 
fact that an officer does not have reason to believe that a 
suspect is armed merely precludes him from using deadly 
force. See Garner, 471 U.S. at 11. The absence of such sus- 
picion, however, has never been held to preclude an officer 
from using a modicum of force to seize a suspect like 
respondent who, in the officer’s presence, is flagrantly and 
knowingly violating the law. For the same reasons, the 
court of appeals erred in attributing significance to the fact 
that respondent was wearing a leg brace. Pet. App. 15a, 27a. 
There was no evidence that either officer was aware of the 
brace, and respondent himself testified that the brace was 
underneath the leg of his trousers. J.A. 21 (Resp. Dep.); J.A. 
52 (Parker Dep.); J.A. 38-39 (Saucier Dep.). Finally, 
although respondent denies resisting arrest, his undisputed 
conduct—he anchored himself to the barrier that separated 

47 

him from the Vice President as the officers attempted to 
gain control over him—surely justified the belief that some 
force could be used to remove him. 

23 

Given the above considerations, there is substantial 
reason to question the Ninth Circuit’s legal conclusion that, 
viewing the facts most favorably to respondent, Specialist 
Saucier employed objectively unreasonable force to appre- 
hend respondent. In our view, under the circumstances of 
this case, the conclusion that Saucier violated the Fourth 
Amendment by using minimal force to remove respondent 
from the crowd—force that produced no physical injury—is 
all but foreclosed as a matter of law. See pp. 43-45 & notes 
20-21, supra. But in this case and in others there may be 
differences of opinion about the ultimate constitutional 
question, and it is precisely such cases that underscore the 
importance of distinguishing the test for qualified immunity 
from the test for finding a constitutional violation. If the 
court of appeals had addressed the two questions separately, 
it would have stopped for a moment after finding the con- 
stitutional violation and asked a critical question—whether 
its conclusion that the force was unconstitutional was so 
obvious in advance that reasonable officers (or reasonable 
judges) could not have disagreed. Whatever one might say 
of the Ninth Circuit’s conclusion that Specialist Saucier’s use 

23 Respondent testified that, as the officers took hold of him, he held his 
banner in place on the barrier that separated him from the Vice President, 
attempting to prevent its removal; that action necessarily held him in 
place as well. See J.A. 23 (“I just held it in place while I think they had 
their arms around me”); J.A. 24 (“Q. Did you try to prevent the banner 
from being taken away from the railing, taken off the railing? A. * * * I 
think I did, but it got pulled away real quick.”). As a result, both officers 
testified that respondent attached himself to the barrier, necessitating his 
removal. See J.A. 38 (Saucier Dep.) (“He tried to keep himself anchored at 
the front of the seating area.”); J.A. 51 (Parker Dep.) (“[H]e took his hands 
and put them on the barricade. And I was trying to pull him off the 
barricade.”); J.A. 53 (Parker Dep.) (“[A]s I went up to the barricade * * * 
and I put my arms around him * * * he clenched onto the bars”). 

48 

of minimal force to apprehend respondent was unreasonable, 
the use of that force was not sufficiently beyond the bounds 
of potentially lawful conduct that “no reasonably competent 
officer would have concluded” it to be lawful. Malley, 475 
U.S. at 341. To the contrary, because it is far from obvious 
that Saucier’s conduct was unlawful at all, much less clearly 
unlawful in light of pre-existing law, he is entitled to 
qualified immunity under Anderson, 483 U.S. at 640. 

B. Saucier’s Placement Of Respondent Into The Van Did 

Not Violate Respondent’s Clearly Established Rights 

Alternatively, the Ninth Circuit seems to have concluded 
that the force used to place respondent in the van was 
constitutionally unreasonable. In particular, the court noted 
that respondent had denied resisting and therefore con- 
cluded that it may not have been necessary to push respon- 
dent inside. Pet. App. 15a. Once again, however, the court 
of appeals erred by examining the facts as we know them 
today, rather than examining the facts as they were per- 
ceived by the officers at the time—including undisputed evi- 
dence of conduct that reasonably led the officers to conclude 
that respondent was resisting being placed in the van. 

24 

Even if we set aside that error, Specialist Saucier is 
entitled to qualified immunity. As this Court has held, 
“ ‘[n]ot every push or shove, even if it may later seem unnec- 
essary in the peace of a judge’s chambers,’ Johnson v. Glick, 
481 F.2d [1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033 
(1973)], violates the Fourth Amendment.” Graham, 490 U.S. 
at 396. A fortiori, the single push at issue here, even if later 
deemed unnecessary, cannot be so clearly unconstitutional as 

24 It is not disputed that respondent took actions that could have 
created the appearance of resistance: Specialist Saucier testified that 
respondent resisted by putting his feet on the van’s bumper and pushing 
away, J.A. 39-40 (Saucier Dep.), while respondent testified that he put his 
feet on the van’s entry or the bumper as the officers attempted to place 
him inside, J.A. 26 (Resp. Dep.). 

49 

to defeat qualified immunity. Nor does it matter that 
respondent, in his complaint, alleged that he was shoved 
“violently” or that he was “almost” injured. See Pet. App. 
15a. Respondent was not injured, and merely quoting the 
adverb “violently” from the complaint cannot substitute for 
reasoned analysis of whether the evidence shows force that 
was so clearly excessive as to render qualified immunity 
inappropriate. See Fed. R. Civ. P. 56(e) (party may not “rest 
upon the mere allegations” of a pleading to defeat a properly 
supported motion for summary judgment). 

25 Here, after re- 
viewing a videotape of the actual events in question, the 
district court declared that, when viewed “in a light most 
favorable to” respondent, the tape showed the officers 
“removing” respondent from the crowd, “carrying or pulling 
him” toward the van, and “push[ing]” or “placing” him inside. 
Pet. App. 27a. The videotape itself, copies of which have 
been lodged with the Court, confirms that analysis, and 
dispels the notion that the allegedly “violent” shove of which 
respondent complains was so excessive as to be clearly and 
obviously unlawful. It may have been forceful, and it may 
have departed from model police conduct. But not every 
departure from model conduct violates the Constitution and, 
under the circumstances, there was good reason to believe 
that such force was necessary. See note 24, supra. In any 
event, the push certainly did not extend “so far beyond” the 
sometimes “hazy border between excessive and acceptable 
force that,” under the circumstances, an officer would have 

25 The characterization of the push as “violent[],” even if accepted, does 
not itself establish that qualified immunity should have been denied. 
Black’s defines “violently” as “[b]y the use of force; forcibly,” Black’s Law 
Dictionary 1570 (6th ed. 1990), and “violent” as “characterized” by “physi- 
cal force, especially by extreme and sudden or by unjust or improper 
force.” Ibid. Consequently, the inclusion of the word “violently” in the 
complaint merely underscores the fact that the push involved force, and 
potentially “unjust and improper” force. It does not demonstrate that the 
force used was so extreme and unjustified that no reasonable officer could 
have thought it lawful. 

50 

“to know he was violating the Constitution.” Priester, 208 
F.3d at 926. See Harlow, 457 U.S. at 818 (officer entitled to 
immunity unless reasonably competent official would “fairly 
be said to ‘know’ that the law forbade [the] conduct”). See 
pp. 43-44 & notes 20-21, supra. 

In any event, it is hard to see how the supposedly violent 
push of which respondent complains is relevant to Specialist 
Saucier’s claim of immunity. It is undisputed that the alleg- 
edly forceful push did not come from Saucier. Instead, as the 
videotape and the depositions attest—and as respondent 
does not deny—that push came from Sergeant Parker. 

26 

Nowhere did the Ninth Circuit offer any reason for holding 
Specialist Saucier, the only petitioner in this case, liable for 
Parker’s conduct. Consequently, viewing the evidence in the 
light most favorable to respondent, the only question here is 
whether Saucier’s conduct of placing respondent into the van 
from the left hand side—not Parker’s allegedly violent push 
from the right—violated respondent’s Fourth Amendment 
rights. It did not, and a reasonable officer in Saucier’s posi- 
tion surely could have believed that to be the case. 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

26 The videotape shows the allegedly violent push coming from the 
officer on the right hand side, as respondent is placed into the van. It is 
not disputed that Sergeant Parker appears on the right side of the screen, 
and that Specialist Saucier appears on the left, wearing glasses. See J.A. 
42-43 (Saucier Dep.); J.A. 56, 58 (Parker Dep.). We pointed that out in our 
petition for a writ of certiorari (at 27-28 & n.19), and respondent— 
although identifying other facts allegedly in need of clarification in his 
brief regarding certiorari—did not contend otherwise. 

51 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

JEFFREY A. LAMKEN 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
EDWARD HIMMELFARB 

Attorneys 

JANUARY 2001