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Sidestepping the Escherian Stairwell: Explicit Establishment as a Method for Circumventing Qualified Immunity’s Constitutional Stagnation

By Earl Y. Lin. Full Text.

In recent years, the doctrine of qualified immunity (QI) has gained increased prominence in the public consciousness. Prior to the murder of George Floyd and the resulting nationwide racial justice protests and uprisings, this Supreme Court–made doctrine—and the ways it shields law enforcement officers from legal accountability—was a relatively esoteric legal topic. Yet by the summer of 2020, Americans were marching in the streets with signs calling for QI’s demise, and polling found QI to be disfavored by a margin of two-to-one. This same polling also showed a sharp decline in public confidence that police would use force appropriately, treat minorities equally, or hold their fellow officers accountable. 42 U.S.C. § 1983 is supposed to provide an avenue to hold officers civilly liable for constitutional violations, but QI severely undercuts § 1983’s accountability function by shielding officers and other public officials from litigation altogether. So long as QI remains, however, giving courts the most effective tools possible to counter its constitutional harms presents the best chance of providing some semblance of the accountability § 1983 is supposed to provide.

In Saucier v. Katz, the Supreme Court adopted a two-step, sequential test for courts to gauge QI’s applicability to a given set of facts: first, determine if the alleged facts show a constitutional violation. If yes, then second, determine whether prior caselaw had clearly established the constitutional right under the same or similar circumstances. Only if the answer to both questions is “yes” would a plaintiff overcome QI and be allowed to litigate their case. The mandatory sequencing of this procedure was meant to ensure the continued elaboration of constitutional rights by requiring courts to address the constitutional questions before them regardless of whether QI was ultimately granted on the second “clearly established law” prong of the analysis.

In Pearson v. Callahan, however, the Court retreated from Saucier’s intended measures against constitutional stagnation. Pearson allowed judges to analyze QI claims based on whichever of the two prongs they chose, with an eye towards judicial efficiency. Even though both Saucier and Pearson admonished courts not to “skip ahead” to the clearly established law prong of the analysis, federal courts quickly developed a tendency to do just that. This trend has resulted in constitutional issues repeatedly going unanswered, leading to what Fifth Circuit Judge Don Willett has described as “Section 1983 meets Catch-22,” whereby “[i]mportant constitutional questions go unanswered precisely because no one’s answered them before. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads government wins, tails plaintiffs lose.”

In a handful of post-Pearson cases, however, circuit courts have granted defendants QI due to a lack of previous clearly established law while simultaneously taking the extra step of explicitly establishing such conduct to be a constitutional violation going forward. This Note reviews the utility of this procedure—which it refers to as “explicit establishment”—as a means of circumventing the Escherian Stairwell. After surveying the history of QI and chronicling the dysfunctionality of the post-Pearson QI paradigm, this Note analyzes the few instances where explicit establishment has been employed and advocates for its wider use by federal circuit courts.