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 

REPLY BRIEF FOR THE PETITIONER 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

TABLE OF CONTENTS 

Page 

A. The qualified immunity inquiry is distinct from 

Fourth Amendment reasonableness ........................... 

2 

B. Applying qualified immunity consistent with 

Anderson does not violate the Seventh Amend- 
ment ................................................................................... 15 

C. Specialist Saucier is entitled to qualified 
immunity ........................................................................... 18 

TABLE OF AUTHORITIES 

Cases: 

Anderson v. Creighton, 483 U.S. 635 (1987) ............. 
1, 2, 4, 6, 

7, 8, 12, 13 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .... 

16 

Bagby v. Brondhaver, 98 F.3d 1096 (8th Cir. 1996) ......... 
8 

Behrens v. Pelletier, 516 U.S. 299 (1996) ........................... 
16 

Brinegar v. United States, 338 U.S. 160 (1949) ................ 
6, 9 

Cruz v. City of Laramie, No. 99-8045, 2001 WL 127789 
(10th Cir. Feb. 15, 2001) ....................................................... 
11 

Davis v. United States, 495 U.S. 472 (1990) ...................... 
15 

Ellis v. Wynalda, 999 F.2d 243 (7th Cir. 1993) ................ 
17 

Finnegan v. Fountain, 915 F.2d 817 (2d Cir. 1990) ........ 
5, 9 

Forrester v. City of San Diego, 25 F.3d 804 (9th Cir. 
1994), cert. denied, 513 U.S. 1152 (1995) ........................... 
11 

Galloway v. United States, 319 U.S. 372 (1943) ............... 
17 

Gassner v. City of Garland, 864 F.2d 394 (5th Cir. 
1989) ......................................................................................... 11 

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

2, 3, 4, 8, 10, 19 

Grupo Mexicano de Desarrollo S.A. v. Alliance Bond 

Fund, Inc., 527 U.S. 308 (1999) .......................................... 
15 

Hammer v. Gross, 932 F.2d 842 (9th Cir.), cert. denied, 
502 U.S. 980 (1991) ................................................................ 
10 

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........................ 
1 

Hunter v. Bryant, 502 U.S. 224 (1991) ................ 
1, 5, 8, 11, 17 

Illinois v. Rodriguez, 497 U.S. 177 (1990) ......................... 3 

(I) 

II 

Cases—Continued: Page 

Lombardi v. City of El Cajon, 117 F.3d 1117 (9th Cir. 
1997) ......................................................................................... 8 

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

1, 4, 8 

Maryland v. Garrison, 480 U.S. 79 (1987) ........................ 
3 

McNair v. Coffey, 234 F.3d 352 (7th Cir. 2000) ............ 
12, 13 

McQurter v. City of Atlanta, 572 F. Supp. 1401 
(N.D. Ga. 1983) ....................................................................... 
10 

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) ....... 
16 

Post v. City of Fort Lauderdale, 7 F.3d 1552 (1983), 
amended, 14 F.3d 583 (11th Cir. 1994) ............................... 
5 

Priester v. City of Riviera Beach, 208 F.3d 919 (11th 

Cir. 2000) ............................................................................... 
5, 17 

Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1998) ........... 

Rochin v. California, 342 U.S. 165 (1952) ......................... 

3 

Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 
1992) ......................................................................................... 11 

State v. Hodson, 907 P.2d 1155 (Utah 1995) ..................... 

11 

Tennessee v. Garner, 471 U.S. 1 (1985) ............................. 
10 

United States v. Holloway, 906 F. Supp. 1437 (D. Kan. 
1995) ......................................................................................... 11 

Weisgram v. Marley Co., 528 U.S. 440 (2000) .................. 

17 

Wilkes v. Dinsman, 48 U.S. (7 How.) 89 (1849) ............... 
13 

Constitution and rules: 

U.S. Const.: 

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

passim 

Amend. VII .............................................................. 
15, 16, 17 

Fed. R. Civ. P.: 

Rule 50 ................................................................................ 

17 

Rule 56 ................................................................................ 
16 

Rule 56(c) ............................................................................ 
16 

Sup. Ct. R. 15.2 .......................................................................... 20 

III 

Miscellaneous: Page 

Wayne R. LaFave, Search and Seizure (3d ed. 1996): 

Vol. 1 ........................................................................................ 
2 

Vol. 2 ........................................................................................ 3, 6 

REPLY BRIEF FOR THE PETITIONER 

In Anderson v. Creighton, 483 U.S. 635 (1987), this Court 
held that the defense of qualified immunity is available 
where an officer is alleged to have conducted an unreason- 
able search or seizure, even where the general legal stan- 
dard governing his conduct is well-established. Immunity, 
the Court held, may not be denied merely because “the 
relevant ‘ legal rule’ ” was “clearly established” at a high level 
of generality. Id. at 639. Instead, immunity must be granted 
unless “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,” i.e., “the unlawfulness 
must be apparent” in “light of pre-existing law.” Id. at 640 
(emphasis added). See also Malley v. Briggs, 475 U.S. 335, 
341 (1986) (immunity proper unless it was sufficiently “obvi- 
ous” in advance “that no reasonably competent officer would 
have concluded” that the actions were constitutional). Quali- 
fied immunity thus protects “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 341). 

Anderson specifically rejected the claim that, because the 
substantive guarantee of the Fourth Amendment and the 
test for qualified immunity are both framed in terms of rea- 
sonableness, qualified immunity is superfluous in Fourth 
Amendment cases. The Court rejected that argument as 
logically flawed because it relies on the coincidence of the 
word “reasonable” in both the qualified immunity test of 
Harlow v. Fitzgerald, 457 U.S. 800 (1982), and the substan- 
tive command of the Fourth Amendment. Anderson, 483 
U.S. at 643-644. The Court refused to carve out a Fourth 
Amendment exception to Harlow’s “across the board” appli- 
cation based on that coincidence of language. Although the 
word “reasonable” appears in both contexts, it serves differ- 

(1) 

2 

ent purposes and has different meanings in each. In the 
Fourth Amendment, it defines the boundary of lawful con- 
duct; in qualified immunity, it defines the somewhat broader 
zone of conduct an officer might reasonably have believed to 
have been lawful in light of pre-existing law. 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.”). 

Respondent and his amici do not seriously dispute that 
understanding of Anderson. Nor do they deny that Ander- 
son, like Harlow before it, “clearly expressed the under- 
standing that the general principle of qualified immunity it 
established would be applied ‘across the board.’ ” 
Anderson, 

483 U.S. at 645. Nonetheless, they contend that this Court 
should announce an exception for seizures effectuated 
through allegedly unreasonable force. Their arguments in 
support of that exception, however, are unpersuasive; were 
rejected by this Court in Anderson; and not only undermine 
the purposes of qualified immunity, but also dilute the 
substantive guarantee of the Fourth Amendment itself. 

A. The Qualified Immunity Inquiry Is Distinct From 

Fourth Amendment Reasonableness 

Although the decision below attempted to distinguish 
Anderson as a case involving an unclear legal standard, Pet. 
App. 14a n.4; Gov’t Br. 32-38, respondent and his amici aban- 
don that effort. Instead, respondent and his amici suggest 
that Graham v. Connor, 490 U.S. 386 (1989), decided a few 
years after Anderson, somehow obviates the need for 

3 

qualified immunity in excessive force cases. In Graham, this 
Court clarified that courts should evaluate an officer’s use of 
force to effectuate an arrest under the Fourth Amendment 
standard of “objective reasonableness” rather than a test de- 
rived from the “shocks-the-conscience” due-process standard 
of Rochin v. California, 342 U.S. 165 (1952). See Graham, 
490 U.S. at 393. Graham also identified several factors 
relevant to that reasonableness determination, such as the 
severity of the crime, potential threats to officer safety, and 
whether the suspect resists arrest or flees. Id. at 396. The 
Court also emphasized that reasonableness “must be judged 
from the perspective of a reasonable officer on the scene, 
rather than with the 20/20 vision of hindsight.” Ibid. The 
reasonableness inquiry in the excessive force context, as in 
other Fourth Amendment contexts, thus allows room for 
reasonable factual errors. The test is applied in light of the 
circumstances as a reasonable officer could have perceived 
them, even if that perception turns out to have been mis- 
taken. See Maryland v. Garrison, 480 U.S. 79, 87 (1987) 
(Fourth Amendment allows “for honest mistakes”); Illinois 

v. Rodriguez, 497 U.S. 177, 185-186 (1990) (similar); 2 
LaFave, supra, § 3.2(b) at 37. 

1. Characterizing the “objective reasonableness” stan- 
dard of Graham as deferential to officer judgments, respon- 
dent and his amici argue that the Graham standard is indis- 
tinguishable from—or functions similarly to—the qualified 
immunity standard. See, e.g., ACLU Br. 15 (“the standard 
for determining qualified immunity is the same as that for 
deciding the constitutional question itself ”); Resp. Br. 22 
(“the standards, if not precisely the same in theory, are the 
same in application”); id. at 25-26 (“minuscule difference” of 
“semantics”). As an initial matter, it is difficult to view 
Graham as imposing a constitutional standard that is so def- 
erential to officer judgment that it created a sub-silentio ex- 
ception to Anderson and Harlow’s mandate for across-the- 
board application of qualified immunity principles. Far from 

4 

expanding deference to officer judgments (which, in respon- 
dent’s view, would minimize the need for qualified immu- 
nity), Graham reduced deference by selecting the more 
exacting “objective reasonableness” standard over the more 
permissive shocks-the-conscience approach. 490 U.S. at 393. 

More fundamentally, respondent and his amici overlook 
critical differences between the Fourth Amendment and 
qualified immunity inquiries. Both take the perspective of a 
reasonable officer on the scene, account for the split-second 
nature of officer decisions, and provide room for reasonable 
mistakes of fact. But the qualified immunity inquiry incorpo- 
rates an additional consideration that the Fourth Amend- 
ment does not—what a reasonable officer could have under- 
stood the requirements of law to have been at the time he 
acted. The Fourth Amendment inquiry focuses on the 
officer’s use of force and asks whether it was objectively 
reasonable. The qualified immunity inquiry focuses on 
established law and asks whether it gave the officer suffi- 
ciently clear notice that his conduct was unlawful. Thus, the 
qualified immunity standard, unlike the Fourth Amendment 
itself, allows for reasonable mistakes of law. 

The lesson of Anderson is that qualified immunity is 
appropriate notwithstanding settled general legal standards 
if those standards and pre-existing law would not necessarily 
put a competent officer on notice that “what he is doing,” 
under the specific circumstances he confronted, violates the 
law. 483 U.S. at 640. Where reasonable officers could differ 
as to the lawfulness of the conduct, immunity is appropriate; 
immunity may be denied only if the conduct’s illegality was 
sufficiently “obvious” that “no reasonably competent officer 
would have” thought it lawful. Malley, 475 U.S. at 341.1 

1 Although the ACLU objects (Br. 16-17) to Malley’s use of the term 
“obvious,” there is little difference between Malley’s standard of obvious- 
ness, Anderson’s insistence that the illegality be “apparent,” or the re- 
quirement that the mistake of law be one that “no reasonable officer” 

5 

Although Graham establishes the general framework for 
assessing reasonableness, it does not establish with clarity 
whether particular uses of force, under specific circum- 
stances, are constitutionally reasonable; nor does it preclude 
courts from altering or refining, over time, their view of the 
legality of particular conduct. 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 (1990). Conse- 
quently, a Fourth Amendment violation occurs when, even 
taking due account of the officer’s factual perspective, the 
conduct transgresses the bounds society is prepared to 
accept as reasonable. But immunity remains appropriate un- 
less that conduct went 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 existing case law or the “application of the [exces- 
sive 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). 

2. Respondent’s and his amici’s reliance on the deference 
owed to the officer’s perspective under Graham, moreover, 
fails to distinguish this case from Anderson. Both the 
probable cause standard at issue in Anderson and the exces- 
sive force standard at issue here provide a sensible measure 
of deference to officer judgments. In both contexts, qualified 
immunity provides a useful additional margin for reasonable 

would have made. In the end, qualified immunity must protect “all but the 
plainly incompetent or those who knowingly violate the law.” Hunter, 502 
U.S. at 229 (internal quotation marks omitted). 

6 

error to protect competent officers from the burden of liti- 
gation and potential liability for reasonable legal mistakes. 

Like the reasonable force inquiry, the probable cause 
inquiry at issue in Anderson proceeds from the perspective 
of a reasonable officer on the scene, allows room for reason- 
able factual errors, and accords a certain amount of defer- 
ence to officer judgments. The standard of probable cause, 
no less than the standard for reasonable force, accords 
officers “fair leeway for enforcing the law in the community’s 
protection,” and “allow[s] for some mistakes” in light of the 
fact that “many situations which confront officers * * * are 
more or less ambiguous.” Brinegar v. United States, 338 
U.S. 160, 176 (1949); 2 LaFave, supra, § 3.2(b) at 37. Indeed, 
it was precisely for those reasons that the dissenting opinion 
in Anderson urged the Court to create an exception to quali- 
fied immunity for mistaken probable cause determinations. 
See Anderson, 483 U.S. at 661 (Stevens, J.) (“emphasizing 
that the probable-cause standard itself recognizes the fair 
leeway that law enforcement officers must have in carrying 
out their dangerous work” and “leaves room for mistakes”). 
Rejecting that argument—as well as the contention that the 
probable-cause standard itself provides sufficient protection 
from lawsuits and liability—this Court instead required an 
additional measure of protection through qualified immunity. 
The probable-cause standard, although well established and 
deferential, sometimes fails to put officers on notice that 
their conduct, under the circumstances before them, is un- 
lawful. Id. at 640, 644. When that occurs, “[l]aw enforce- 
ment officers whose judgments in making these difficult 
determinations are objectively legally reasonable,” even 
though ultimately mistaken, “should no more be held 
personally liable in damages than should officials making 
analogous determinations in other areas of law.” Id. at 644. 
The same is true here. 

3. In an attempt to escape Anderson’s precedential force, 
respondent offers a series of purported distinctions between 

7 

the probable-cause standard at issue in Anderson and the 
standard of “objective reasonableness” at issue here. Prob- 
able cause, respondent and his amici assert, is an ex post 
inquiry (conducted from an objective perspective, after the 
fact), while reasonable force is examined ex ante (from the 
perspective of the officer on the scene). Resp. Br. 28; ACLU 
Br. 19-20. Probable cause, respondent and his amici further 
claim, is a complex, technical doctrine that is “often in a state 
of flux,” “developing and uncertain,” Resp. Br. 27, or 
“evolving,” ACLU Br. 12-13; N.Y. Bar Br. 11. 

The short answer is that, under Anderson, those pur- 
ported distinctions make no difference. Anderson is not 
premised on the notion that probable cause is determined 
after the fact, or on the theory that the doctrine is peculiarly 
“technical” or “evolving.” In Anderson itself, no such con- 
cerns were present; the sole question was whether, applying 
settled standards to the particular circumstances before the 
officers, probable cause and exigent circumstances were 
present. Gov’t Br. 34-36; 483 U.S. at 640-641; id. at 657-658 
(Stevens, J., dissenting) (“Anderson has not argued that any 
relevant rule * * * was not ‘clearly established’ ” but con- 
tends that “his own reasonable belief that the conduct 
engaged in was within the law suffices to establish immu- 
nity.”). Instead, Anderson rests on the observation that, in 
some cases, neither the probable-cause standard itself nor 
pre-existing case law will establish the “contours of the 
right” with such clarity that a reasonable officer must nec- 
essarily “understand that what he is doing” is unlawful. Id. 
at 640 (emphasis added). Where that occurs, the Court held, 
an officer is entitled to qualified immunity, whether or not 
there are any “evolving” abstract legal issues in the back- 
ground.2 

2 Following Anderson, the courts of appeals regularly address quali- 
fied immunity in cases where the only question is whether officers 
reasonably erred in believing that the facts before them were sufficient to 

8 

More fundamentally, the purported distinctions are no 
answer to the command of Anderson and Harlow that quali- 
fied immunity standards apply “across the board.” What- 
ever minor differences may exist between the probable 
cause and excessive force standards, they pale in comparison 
to the vast differences among the standards established by 
other constitutional provisions. Yet Anderson and Harlow 
require that immunity be available with respect to pur- 
ported violations of each. Respondent’s emphasis on sup- 
posed differences between the two Fourth Amendment 
standards also ignores the fact that the proposed exception 
to qualified immunity that Anderson rejected was not 
limited to issues of probable cause. See 483 U.S. at 643. The 
Fourth Amendment’s text requires reasonableness to play 
a role in every Fourth Amendment case, and Anderson re- 
jected the view that the coincidence of the term “rea- 
sonable” in the qualified immunity test and in the Fourth 
Amendment’s text provides a basis for declaring qualified 
immunity unavailable in Fourth Amendment cases. Ibid. 

In any event, the purported distinctions relied on by re- 
spondent and his amici are without basis. With respect to 
the ex ante versus ex post distinction, Resp. Br. 28; ACLU 
Br. 19-20, both probable cause and reasonable force are de- 
termined from the ex ante perspective, i.e., in light of the 
facts available to the police at the time the action was taken, 
as this Court’s cases make clear. Compare Graham, 490 U.S. 
at 396 (“perspective of reasonable officer on the scene”), with 
Hunter, 502 U.S. at 228 (“Probable cause existed if ‘at the 
moment the arrest was made . . . the facts and circum- 
stances * * * of which they had reasonably trustworthy in- 
formation were sufficient to warrant a prudent man in be- 
lieving’ that” a crime had been committed) (emphasis 

establish probable cause. Lombardi v. City of El Cajon, 117 F.3d 1117 
(9th Cir. 1997); Bagby v. Brondhaver, 98 F.3d 1096 (8th Cir. 1996). Indeed, 
Malley v. Briggs, supra, was precisely such a case. 

9 

added).3 Nor can one distinguish probable cause on the the- 
ory that Graham establishes a “nontechnical” doctrine. 
ACLU Br. 13. Probable cause is likewise “a practical, non- 
technical conception.” Brinegar, 338 U.S. at 176. 

Finally, the probable-cause standard cannot be distin- 
guished on the theory that it is in “flux” or “evolving,” while 
reasonable force under Graham is not. It strains credulity to 
assert that the centuries-old probable cause standard is 
evolving and uncertain while the 12-year-old Graham stan- 
dard has ossified. The cases amici cite for the uncertainty of 
the probable-cause standard (ACLU Br. 12) concern applica- 
tion of that standard to information from anonymous infor- 
mants. Far from establishing widespread legal confusion 
about the probable-cause standard, those cases underscore 
the point this Court made in Anderson—that legitimate 
uncertainties exist in the application of most well-established 
legal norms, and police officers should not be held liable if 
they make reasonable, but ultimately erroneous, determina- 
tions about the application of the general standard to specific 
facts. 

Graham, moreover, hardly eliminates all “legal uncer- 
tainty,” Resp. Br. 27-28; ACLU Br. 21, regarding reasonable 
force. The reasonable force standard under Graham is by 
necessity highly general. As this Court has emphasized, “the 
test of reasonableness under the Fourth Amendment is not 
capable of precise definition,” and depends on “a careful bal- 

3 Finnegan v. Fountain, 915 F.2d at 824 n.11, upon which respondent 
and its amici rely for the ex post/ex ante distinction, refused to equate 
qualified immunity and substantive Fourth Amendment reasonableness. 
See id. at 823 (“We read Finnegan’s argument to state that any use of 
constitutionally excessive force violates ‘clearly established’ rights, so that 
qualified immunity may not shield one who had used excessive force. We 
do not agree.”). Similarly, respondent’s claim that the Second and Fourth 
Circuits equate the two inquiries (Br. 22 & 23 n.12), is incorrect. The case 
law is to the contrary, Gov’t Br. 29 n.12, as even respondent’s amicus 
concedes, ACLU Br. 11 n.4. 

10 

ancing of the nature and quality of the intrusion * * * 
against the countervailing governmental interests.” Gra- 
ham, 490 U.S. at 396 (internal quotation marks omitted). To 
be sure, Graham identifies three factors that should be 
considered in evaluating the use of force. But that list is 
non-exclusive, and Graham offers no indication of the 
relative weight assigned to each. Courts and juries applying 
Graham thus are left to balance all relevant considerations 
and decide “whether the totality of the circumstances 
justified a particular sort of * * * seizure.” Tennessee v. 
Garner, 471 U.S. 1, 8-9 (1985). That open-ended balancing 
standard can no more unfailingly put reasonable officers on 
notice of the legality or illegality of their conduct in every 
possible circumstance than can the similarly open-ended 
totality-of-the-circumstances test used for probable cause 
(let alone the more definitive tests applied outside the 
Fourth Amendment context, each of which is backstopped 
by “across the board” application of qualified immunity). 
Indeed, judges applying Graham often can and do disagree 
on whether particular uses of force are reasonable, Gov’t Br. 
24-25 & n.8, and so too can reasonable officers. 

Even at the abstract level, questions of reasonable force 
are no less plagued by uncertainty than are questions of 
probable cause. Courts and judges, for example, disagree 
over the seriousness of and weight accorded to certain 
crimes in the Graham balance,4 whether certain types of 
force qualify as “deadly force,” 5 and on the extent to which 

4 Contrast Hammer v. Gross, 932 F.2d 842, 846 (9th Cir.) (drunk driv- 
ing not serious for purposes of Graham because it was a misdemeanor) (en 
banc plurality), cert. denied, 502 U.S. 980 (1991), with id. at 852-853 & n.3 
(Kozinski, J., concurring) (drunk driving extremely serious, fatality- 
producing offense). 

5 Contrast McQurter v. City of Atlanta, 572 F. Supp. 1401, 1416 (N.D. 
Ga. 1983) (choke-hold “a technique classified as ‘deadly force,’ in the same 
category as ‘use of a firearm.’ ”), with Gassner v. City of Garland, 864 F.2d 

11 

an officer may use force to obtain evidence from a suspect’s 
body.6 Other open and novel legal issues abound.7 Graham 
is helpful in addressing those issues. But it does not resolve 
them with such clarity that only “the plainly incompetent or 
those who knowingly violate the law,” Hunter, 502 U.S. at 
229, can cross the constitutional boundary separating lawful 
from unlawful force.8 

394, 396, 400 (5th Cir. 1989) (use of choke-hold on unarmed suspect 
reasonable). 

6 Contrast United States v. Holloway, 906 F. Supp. 1437, 1443 (D. 
Kan. 1995) (use of pepper spray to obtain contents of defendant’s mouth 
not excessive, as “[o]fficers were not required to simply wait to let nature 
take its course”), with State v. Hodson, 907 P.2d 1155, 1158 (Utah 1995) 
(applying pressure to throat to obtain contents of mouth excessive, as 
“[n]o emergency or exigency justifies the use of force at this level to 
preserve evidence which would be readily (if inconveniently) accessible 
through nonviolent means”). 

7 Courts have addressed the propriety of specific types of seizures and 
restraints, e.g., Cruz v. City of Laramie, No. 99-8045, 2001 WL 127789, at 

*3-*4 (10th Cir. Feb. 15, 2001) (holding that officers may not use hog-tie 
restraint on suspect with diminished capacity, but that the “rule prohibit- 
ing such a restraint in this situation was” not “ ‘clearly established’ at the 
time” the officers acted); Russo v. Cincinnati, 953 F.2d 1036, 1044 (6th 
Cir. 1992) (no clearly established law regarding use of stun guns and 
tasers); and mechanisms for obtaining compliance, Forrester v. City of San 
Diego, 25 F.3d 804, 807 (9th Cir. 1994) (use of pain-compliance through 
nonchakus), cert. denied, 513 U.S. 1152 (1995). 

8 The ACLU also argues (Br. 15-16) that the probable-cause and 
exigent-circumstances inquiries at issue in Anderson are distinct from the 
reasonable-force inquiry because, when it comes to reasonable force, an 
officer has a “range of reasonable options” available to him. The fact that 
an officer may choose from a range of reasonable alternatives, however, 
does not mean that the boundary between “reasonable” and “unreason- 
able” force, and between reasonable and unreasonable options, is necessar- 
ily clear. Indeed, each available option may also cross the boundary of 
reasonableness if taken too far. The argument also does not distinguish 
searches from uses of force, or this case from Anderson. In both contexts, 
the ultimate and only question that must be decided is whether the action 
the officer actually undertook was sufficiently justified as to be rea- 

12 

Respondent’s and his amici’s reliance on McNair v. 
Coffey, 234 F.3d 352 (7th Cir. 2000), is mistaken for the same 
reason. In that case, the court declared that “[u]ncertainty 
about the legal standard” applicable to excessive force cases 
“ended” with Graham; although “[t]here may still be uncer- 
tainty in the application of that standard to particular 
situations,” the court continued, “this is not the kind of legal 
uncertainty that Anderson and Wilson discuss.” Id. at 354. 
That misreads Anderson: Uncertainty about the result of 
applying a settled standard “to particular situations” is 
precisely “the kind of legal uncertainty” that Anderson 
discusses. Gov’t Br. 16-21, 34-35 & n.16. Moreover (as we 
pointed out, id. at 37 n.17, and respondent does not deny), 
demanding that officers identify legal uncertainty at some 
higher level of generality, as McNair does, would “trans- 
form[]” the Harlow standard “from a guarantee of immunity 
into a rule of pleading,” a result that Anderson was designed 
to avoid. 483 U.S. at 639. 

Indeed, notwithstanding respondent’s and his amici’s ex- 
tesive reliance on McNair, they make no effort to reconcile 
McNair’s analysis with Anderson. (Nor does McNair itself. 
McNair cites Anderson, but does not discuss Anderson’s 
holding or analysis. See Gov’t Br. 38 n.18.) For example, 
respondent (Br. 28-30) and his amici (e.g., ACLU Br. 20-22) 
cite McNair for the proposition that officers should be 
“strictly liable” for unreasonable searches and seizures be- 
cause they were strictly liable at common law. But Ander- 
son rejected that precise argument. “[W]e have never sug- 
gested,” the Court declared, “that the precise contours of 
official immunity can and should be slavishly derived from 
the often arcane rules of the common law. That notion is 

sonable; that decision is essentially a binary one. Finally, like officers 
effecting an arrest, officers conducting a search have a range of reasonable 
options regarding how to conduct that search, and may violate the Fourth 
Amendment if they choose unreasonable means. 

13 

plainly contradicted by Harlow, where the Court completely 
reformulated qualified immunity along principles not at all 
embodied in the common law.” The Court continued: “Har- 
low clearly expressed the understanding that the general 
principle of qualified immunity it established would be 
applied ‘across the board.’ ” 483 U.S. at 645. Respondent 
and his amici nowhere explain why that understanding is 
incorrect, or why strict liability should be substituted for the 
qualified immunity that Harlow and Anderson instruct 
should be applied across the board.9 

4. Respondent’s attempt to equate the qualified immu- 
nity inquiry with the test of reasonableness under the 
Fourth Amendment also suffers from a final defect—it mis- 
states and dilutes the substance of the Fourth Amendment’s 
guarantees. This Court’s cases establish that an officer is 
entitled to qualified immunity for his unconstitutional con- 

9 McNair’s attempt to dismiss qualified immunity in Fourth Amend- 
ment cases as a “judicial invention” is not only inconsistent with Ander- 
son, but incorrect. This Court long has recognized qualified immunity in 
excessive force cases. See, e.g., Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 
123, 130-132 (1849) (naval officer protected from “mere errors of judg- 
ment” and not liable unless force was animated by “ill-will, a depraved 
disposition,” or “malicious and wilful”). Moreover, as we explained (Gov’t 
Br. 38 n.17), concerns about “judicial invention” are doubly misplaced in 
this context. Respondent and his amici similarly contradict rather than 
distinguish Anderson when (again following McNair) they argue (ACLU 
Br. 18) that applying qualified immunity—asking “whether a reasonable 
person would have realized that his conduct violates established legal 
standards—[would] reintroduce[] the element of subjectivity that Graham 
deliberately removed.” McNair, 234 F.3d at 355-356. This Court rejected 
that precise argument in Anderson. The no-reasonable-officer test of 
Harlow and Malley, the Court held, “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 believed 
Anderson’s warrantless search to be lawful, in light of clearly established 
law and the information the searching officers possessed. Anderson’s 
subjective beliefs about the search are irrelevant.” 483 U.S. at 641. 

14 

duct if an appropriately competent officer, based on estab- 
lished law, reasonably could have believed the conduct to be 
lawful at the time he acted. Attempting to equate the 
Fourth Amendment standard with qualified immunity, re- 
spondent and his amici state that the Fourth Amendment 
deems an officer’s conduct to be “reasonable” within the 
meaning of constitutional text whenever a reasonable officer 
could have believed the conduct to be lawful. See, e.g., 
ACLU Br. 15 (Fourth Amendment determination “necessar- 
ily” answers “whether a reasonable officer ‘could have be- 
lieved’ his use of force ‘to be lawful.’ ”). 

That formulation misstates the relevant Fourth Amend- 
ment standard. See Gov’t Br. 30-31 n.13. It finds no support 
in Graham; that decision specifies that the Fourth Amend- 
ment standard is “objective reasonableness,” not arguable 
reasonableness in light of pre-existing law. Nor can that for- 
mulation be reconciled with constitutional text. The Fourth 
Amendment bars “unreasonable” seizures. That an officer 
understandably could have thought his conduct to be rea- 
sonable in light of pre-existing law may be a valid reason for 
declining to impose damages, but it does not make the con- 
duct “reasonable” in contemplation of current law. 

Indeed, in his effort to minimize differences between the 
qualified immunity and Fourth Amendment standards, re- 
spondent dilutes the Fourth Amendment itself. See Gov’t 
Br. 31 n.13. An officer enjoys qualified immunity unless pre- 
existing law would put a reasonable officer on notice that the 
conduct in question is unlawful. If taken seriously, respon- 
dent’s effort to equate the Fourth Amendment and qualified 
immunity standards would require all open legal questions 
concerning reasonableness of force to be resolved against 
plaintiffs; whenever pre-existing law did not establish the 
illegality of the conduct with sufficient clarity, the conduct 
would remain lawful. Such a rule would freeze the current 
state of Fourth Amendment law in place. Common sense 
and the development of Fourth Amendment law—under 

15 

which the law gains clarity by the application of the rea- 
sonableness standard in novel and concrete contexts— 
require rejection of that approach. The test for finding a 
Fourth Amendment violation and the standard for imposing 
liability on individual officers are, and should remain, dis- 
tinct. Not every Fourth Amendment violation requires the 
imposition of personal liability. Nor should courts be barred 
from providing otherwise appropriate prospective relief 
against unconstitutional practices merely because those 
practices were not clearly foreclosed by pre-existing law. 

That is not to dispute that the Fourth Amendment pro- 
vides room for and vindicates reasonable mistakes of fact. 
The ACLU correctly observes (Br. 10) that an officer be- 
haves reasonably, for example, if he justifiably mistakes an 
innocent object for a gun. But it does not follow that the 
Fourth Amendment itself allows room for and vindicates 
mistakes of law—no matter how reasonable—regarding the 
amount of force that society is prepared to accept as rea- 
sonable and thus constitutional. To the contrary, the 
ultimate arbiter of the boundary between lawful and unlaw- 
ful conduct must remain the judicial branch. That an officer 
reasonably erred in discerning the sometimes unclear bound- 
ary between reasonable and unreasonable force may entitle 
him to qualified immunity. But it does not force the judici- 
ary to declare that conduct lawful. 

B. Applying Qualified Immunity Consistent With Ander- 
son Does Not Violate The Seventh Amendment 

Respondent also claims (Br. 30-45) that applying qualified 
immunity here is somehow inconsistent with the Seventh 
Amendment’s requirement that the right to trial by jury be 
“preserved.” There is no reason for this Court to address 
that contention, as it was neither pressed nor passed upon in 
the court of appeals. See Davis v. United States, 495 U.S. 
472, 488-489 (1990); Grupo Mexicano de Desarrollo S.A. v. 
Alliance Bond Fund, Inc., 527 U.S. 308, 318 n.3 (1999). 

16 

The argument is, in any event, without merit. This case 
arises on summary judgment under Federal Rule of Civil 
Procedure 56, which fully protects the Seventh Amendment 
values in the qualified immunity context, as it does in all 
others. Under Rule 56(c), a court may enter summary judg- 
ment only if there is “no genuine issue as to any material 
fact.” Fed. R. Civ. P. 56(c). Consequently, courts deciding 
qualified immunity issues on summary judgment must re- 
solve all disputes regarding historical facts (what actually 
happened) in favor of the plaintiff ; draw all factual infer- 
ences in favor of the plaintiff; and view the evidence in the 
light most favorable to the plaintiff. See Behrens v. Pelle- 
tier, 516 U.S. 299, 309 (1996); Anderson v. Liberty Lobby, 
Inc., 477 U.S. 242, 248-250 (1986). The normal operation of 
those requirements prevents the case from going to the jury 
only if the evidence would be insufficient to support a judg- 
ment in the plaintiff ’s favor—in this context, only where, 
even under the most plaintiff-favorable set of facts sup- 
ported by the evidence, a competent officer reasonably could 
have believed that his conduct was lawful in light of pre- 
existing law. That does not create a Seventh Amendment 
problem. The Seventh Amendment does not give a plaintiff 
the right to take his case to trial where the admissible 
evidence cannot support liability, Parklane Hosiery Co. v. 
Shore, 439 U.S. 322, 336 (1979); nor did the common law, id. 
at 349 & n.16 (Rehnquist, J., dissenting) (“[I]n 1791 a demur- 
rer to the evidence, a procedural device substantially similar 
to summary judgment, was a common practice.”). 

Of course, qualified immunity necessarily means that 
some cases that otherwise would have gone to the jury will 
be resolved at summary judgment instead. That, however, 
is an inevitable consequence of a qualified immunity doctrine 
that provides officers an additional margin for error. Offer- 
ing that additional protection under a distinct legal standard 
does not intrude on the jury’s traditional fact-finding role, 

17 

and it raises no greater concerns in the excessive force 
context than in any other. 

10 

Respondent’s Seventh Amendment argument, in any 
event, underscores the incompatibility of the Ninth Circuit’s 
approach with Harlow’s goal of resolving insubstantial 
claims before trial. See Gov’t Br. 39-42. Under the Ninth 
Circuit’s approach, the case must go to trial unless “the 
evidence compels the conclusion that [the] use of force was 
reasonable.” Pet. App. 15a n.5 (emphasis added). As we 
have noted (Gov’t Br. 39-40), this Court already has rejected 
a similar formulation of the qualified immunity standard in 
the probable-cause context because “it routinely places the 
question of immunity in the hands of the jury.” Hunter, 502 
U.S. at 228. The test for qualified immunity is distinct and 
facilitates early termination of litigation. After resolving all 
factual disputes and drawing all factual inferences in favor of 
the plaintiff, the court must grant the officer qualified immu- 
nity unless, under those facts and in light of pre-existing law, 
no appropriately competent officer reasonably could have 
believed the force was lawful. See Ellis v. Wynalda, 999 
F.2d 243, 246 n.2 (7th Cir. 1993) (summary judgment proper 
where, viewing the facts most favorably to the plaintiff, “rea- 
sonable minds could differ” on the lawfulness of the conduct); 
Priester, 208 F.3d at 927 (immunity proper unless pre- 

10 Much of respondent’s Seventh Amendment analysis addresses the 
standard applicable after verdict in light of the Seventh Amendment’s re- 
examination clause, which provides that “no fact tried by a jury, shall be 
otherwise re-examined in any Court of the United States, than according 
to the rules of the common law.” That issue is not presented by this case; 
no trial has occurred and no fact has been “tried by a jury.” However, just 
as normal application of summary judgment rules protects Seventh 
Amendment values before trial, normal application of Federal Rule of 
Civil Procedure 50 safeguards those values after trial. This Court has 
recognized that Rule 50 is consistent with the Seventh Amendment. See 
Galloway v. United States, 319 U.S. 372, 388-393 (1943); Weisgram v. 
Marley Co., 528 U.S. 440, 449-450. 

18 

existing law “truly compel[s] (not just suggest[s] or allow[s] 
or raise[s] a question about), the conclusion * * * that what 
defendant [allegedly did] violates federal law”). 

C. Specialist Saucier Is Entitled To Qualified Immunity 

Respondent and his amici largely abandon the Ninth 
Circuit’s application of the Fourth Amendment and qualified 
immunity standards in this case. Respondent nowhere 
denies that competent officers—confronted by respondent’s 
open disobedience to the law, with a large crowd behind him, 
and the Vice President standing a few feet ahead—could 
have thought it permissible to use surprise to their advan- 
tage by seizing respondent quickly and whisking him out of 
the crowd. Gov’t Br. 44-45. Respondent does not insist that 
the officers should have spoken with him before seizing him, 
let alone that such a “speak-first” requirement was clearly 
established by pre-existing law. Id. at 45. Nor does he 
dispute that some modicum of force was necessary to remove 
him from the crowd in light of the fact that he attached 
himself to the barrier that separated him from the Vice 
President. See id. at 46-47 & n.23. 

11 

Instead, respondent primarily relies on what he character- 
izes as a gratuitously forceful push used to place him inside a 
military police van. Although he suffered no injury what- 
soever, respondent asserts that the push, together with the 
force used to remove him from the crowd, cumulatively con- 
stitute excessive force. See Resp. Br. 3 n.2. Respondent, 
however, nowhere explains why the two uses of force—each 

11 Respondent asserts that the officers “dragged” him to the van. 
Resp. Br. 3 n.2, 9 n.7. Respondent may be asserting merely that he did not 
proceed to the van willingly. To the extent respondent claims he was 
lying down or prone, or that there was significant contact and friction 
between his person and the ground, the record is to the contrary. Respon- 
dent testified that the officers “held [him] up in the air,” that he did not 
“make any effort to get [his] feet on the ground” because he “couldn’t,” 
and that his feet were at most “barely touching the ground” as he was 
half-walked, half-carried to the van. J.A. 25. 

19 

employed to achieve a different end—should be aggregated; 
or why the use of otherwise reasonable force to remove 
respondent from the crowd should affect the permissible 
force to place him in the van. This is not a case where an 
earlier use of force may affect the necessity of a later one; it 
is a case in which each use of force is justified by a separate 
need. Moreover, even if an earlier use of reasonable force 
must be treated as a “debit” against the amount of force that 
can be used later, that rule surely was not so clearly 
established that Saucier must have been “incompetent” or 
“knowingly violating the law” when he failed to anticipate it. 

More fundamentally, the push upon which respondent 
places primary reliance does not establish that Specialist 
Saucier violated respondent’s clearly established Fourth 
Amendment rights. For one thing, respondent ignores a 
long line of cases—stressed in our opening brief (Gov’t Br. 43 

n.20, 48-50) and by various amici (e.g., FOP Br. 10-20; NAPO 
Br. 24-27)—holding significantly greater intrusions to be de 
minimis or otherwise too trivial to be constitutional viola- 
tions where, as here, no injury resulted. See also Graham, 
490 U.S. at 396. Nor does Graham establish that the mini- 
mal force used here was unconstitutional. Although respon- 
dent characterizes Graham as involving pushes from which 
“the plaintiff suffered no discernable injury,” Resp. Br. 15, 
the plaintiff in Graham suffered “a broken foot, cuts on his 
wrists, a bruised forehead,” an “injured shoulder,” and a 
seemingly permanent “loud ringing in his right ear.” 490 
U.S. at 390. Respondent, in contrast, claims no physical 
injury. The force in Graham also far exceeded the force 
here, and included slamming the plaintiff ’s face into the hood 
of a car after he was handcuffed. Id. at 389. Finally, 
Graham cannot even be read as establishing that the force 
used there was unreasonable, because the Court did not 
reach that question, instead remanding to the court of 
appeals for application of the proper standard. Id. at 399. 

20 

Respondent also declares that trial in this case is neces- 
sary because there is a factual dispute on whether he 
resisted being placed in the van. Resp. Br. 43 & n.22. We 
disagree. First, even absent resistance, the shove of which 
respondent complains did not go so far beyond potentially 
lawful conduct that no competent officer could have thought 
it constitutional. See Gov’t Br. 48-50. Second, respondent 
ignores his concession that he engaged in conduct—placing 
his feet on the bumper—that could have led a reasonable 
officer to believe he was resisting, even if he was not. See id. 
at 48 n.24. Finally, the undisputed fact that the push did not 
come from Saucier, but instead came from the other officer, 
is fatal to respondent’s suit against Saucier, the lone 
petitioner before this Court. Id. at 50 & n.26. 

12 Saucier did 
“assist” in placing respondent in the van. See Resp. Br. 4 

n.4. But respondent does not identify any aspect of that 
assistance as constitutionally objectionable. Nor does he 
articulate any basis (much less a clearly established one) for 
holding Saucier liable for the other officer’s conduct. 
Saucier’s own conduct—placing respondent in the van from 
the left-hand side, rather than the other officer’s allegedly 
offensive push from the right—did not violate respondent’s 
clearly established Fourth Amendment rights. Accordingly, 
Specialist Saucier should not be forced to endure further 
proceedings and a time-consuming trial; he is entitled to 
qualified immunity now. 

* * * * * 

For the reasons stated above, and for those stated in our 
opening brief, the judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

12 We pointed that fact out in our petition for a writ of certiorari (at 27- 
28 & n.19), and respondent did not dispute it in his brief in opposition, 
Gov’t Br. 50 n.26. To the extent respondent seeks to dispute that fact 
now, his effort comes too late. See Sup. Ct. R. 15.2. 

21 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

MARCH 2001