Pearson v. Callahan

What Happened

Afton Callahan was suspected of selling methamphetamine in his home in Utah. Police used a confidential informant to set up a controlled buy. After the informant entered Callahan’s home, purchased drugs, and gave a pre-arranged signal, officers entered without a warrant under what they called the “consent-once-removed” doctrine — the theory that the informant’s lawful entry and observation of illegal activity justified the officers’ warrantless entry.

Callahan sued the officers under § 1983, arguing that the warrantless entry violated the Fourth Amendment. The officers claimed qualified immunity. The case reached the Supreme Court not primarily on the Fourth Amendment question, but on a procedural issue that had been frustrating courts for nearly a decade: the rigid two-step sequence for analyzing qualified immunity claims.

Under Saucier v. Katz (2001), courts were required to address qualified immunity in a mandatory order. First, decide whether the officer violated a constitutional right. Second, decide whether that right was “clearly established.” Courts could not skip to the second step even if it was obvious that the law wasn’t clearly established. This meant courts were forced to issue constitutional rulings in cases where the answer didn’t matter to the outcome — creating what many judges saw as unnecessary advisory opinions.

What the Court Decided

In a unanimous opinion by Justice Alito, the Court overruled Saucier’s rigid sequencing requirement. Courts now have discretion to decide qualified immunity cases in whatever order makes sense. They can address the constitutional question first, address the “clearly established” question first, or address both. The two-step inquiry remains — (1) did the officer violate a constitutional right? (2) was that right clearly established? — but courts are free to choose which step to tackle.

The Court identified several problems with the mandatory sequence. First, it forced courts to decide difficult constitutional questions that were unnecessary to resolve the case. Second, the constitutional rulings produced under this framework were often not carefully considered because the court knew the case would be resolved on the “clearly established” prong anyway. Third, it wasted judicial resources. And fourth, the constitutional rulings were essentially advisory opinions — something federal courts are generally supposed to avoid.

On the merits, the Court held that the officers were entitled to qualified immunity because the “consent-once-removed” doctrine was sufficiently accepted at the time of the search that a reasonable officer could have believed the warrantless entry was lawful.

What It Means in Practice

Pearson has had a profound and somewhat paradoxical effect on § 1983 litigation. By allowing courts to skip the constitutional question and jump straight to “clearly established law,” the decision made it easier for courts to grant qualified immunity without ever saying whether the officer violated the Constitution.

This creates a vicious cycle: Courts skip the constitutional question → the law never gets “clearly established” → future officers get qualified immunity because the law isn’t clearly established → courts skip the constitutional question again. Civil rights scholars call this the “qualified immunity catch-22” — the doctrine feeds on its own silence.

Before Pearson, the mandatory Saucier sequence forced courts to develop constitutional law even when granting qualified immunity. A court might say: “Yes, this officer violated the Fourth Amendment, but the law wasn’t clearly established, so the officer gets immunity.” That ruling still established the law for future cases. After Pearson, courts can simply say: “We don’t need to decide whether the Constitution was violated because the law wasn’t clearly established.” The constitutional question never gets answered.

How You Can Use It

Pearson matters for structuring your qualified immunity arguments:

• Ask the court to address the constitutional question. Even if the court might grant QI on the “clearly established” prong, urge the court to rule on the constitutional violation first. Pearson gives courts discretion — it doesn’t forbid them from addressing the constitutional question. Argue that developing the law serves the public interest.
• Key quote: “The judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking [that] will best facilitate the fair and efficient disposition of each case.” 555 U.S. at 242.
• Argue that skipping the constitutional question perpetuates the QI catch-22. Cite scholarly criticism of Pearson’s effect on constitutional development.
• Template: “While Pearson v. Callahan, 555 U.S. 223 (2009), grants this Court discretion in the order of its qualified immunity analysis, the Court should exercise that discretion to address the constitutional question first. Doing so will develop the law and prevent the qualified immunity ‘catch-22’ in which constitutional rights remain perpetually unestablished.”

How It Can Be Used Against You

Pearson is a powerful tool for defendants seeking a quick exit:

• “Skip to clearly established.” The defense will urge the court to bypass the constitutional question entirely and dismiss on the “clearly established” prong. This is faster, easier, and avoids putting anything on the record that might help future plaintiffs.
• Prevents law from developing. Even if your facts clearly show a constitutional violation, the court can grant immunity without ever acknowledging the violation. This keeps the law in a state of permanent ambiguity.
• Repeated use in the same jurisdiction. If courts in your circuit routinely skip the constitutional question for a particular type of misconduct, the law never becomes “clearly established” — and every future defendant gets immunity.

How to counter: Make both arguments — that the officer violated your constitutional rights and that those rights were clearly established. Brief the constitutional question as thoroughly as the “clearly established” question. If the court seems inclined to skip the constitutional question, explicitly request an alternative ruling. And cite other circuits that have addressed the constitutional question on similar facts, even if your own circuit hasn’t — establishing a “robust consensus of cases of persuasive authority” can satisfy the “clearly established” requirement.