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The Ninth Circuit's decision, if upheld, would effectively eliminate the qualified immunity defense in excessive force cases. This conclusion is based upon an incorrect application of the qualified immunity standard of Harlow v. Fitzgerald, 457 U. S. 800 (1982) and the improper equating of the Harlow standard with the standard for Fourth Amendment reasonable force claims found in Graham v. Connor, 490 U. S. 386 (1989). Qualified immunity has a separate existence from Graham's excessive force standard; a particular use of force can be excessive under Graham yet still be protected under qualified immunity if the legal status of that particular use of force was unclear at the time of the act. Contrary to the Ninth Circuit's reasoning, there is a margin of error in excessive force cases.
Despite its claims to the contrary, the Ninth Circuit's decision eliminates qualified immunity as an effective defense in Fourth Amendment excessive force cases. The Ninth Circuit began its inquiry by dividing the Harlow standard into two parts.(1) First, a court was to ascertain whether the relevant law was clearly established. If the law was unclear, then immunity was granted. If the law was clear, then " 'we proceed to ask if under that law, a reasonable official could have believed that the conduct was lawful.' " Katz v. United States, 194 F. 3d 962, 967 (CA9 1999) (quoting Somers v. Thurman, 109 F. 3d 614, 617 (CA9 1997)). Next, the court summarized the reasonableness standard for evaluating excessive force claims set forth in Graham v. Connor, 490 U. S. 386 (1989). Katz, 194 F. 3d, at 967-968.
What followed is central to this case. Instead of determining whether Graham established a sufficiently clear standard under Harlow, it skipped to the reasonableness inquiry. Noting that both Graham and Harlow evaluated the reasonableness of the officer's conduct, the Ninth Circuit " 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.' " Id., at 968 (quoting Alexander v. County of Los Angeles, 64 F. 3d 1315, 1322 (CA9 1995)). From this followed the inevitable conclusion that unless the court could conclude that as a matter of law the level of force was reasonable under Graham, summary judgment was improper in excessive force cases. See id., at 969.
Defendants do not have to prove that they acted legally in order to receive qualified immunity. The defense advances the policies that "officials should not always err on the side of caution." Davis v. Scherer, 468 U. S. 183, 196 (1984). Thus in a search case, an officer who reasonably, but mistakenly, concludes that he has probable cause is entitled to qualified immunity. See Hunter v. Bryant, 502 U. S. 224, 228-229 (1991) (per curiam). By eliminating the officer's margin of error, the Ninth Circuit eliminates the defense.
The decision asserts that qualified immunity is still available "when the law governing his or her conduct was not clearly established . . . ." Katz, supra, 194 F. 3d, at 970. Although the Ninth Circuit never explicitly stated what the clear legal standard was under Harlow, it must have concluded that some decision provided clear authority, since qualified immunity was denied to Private Saucier. Since the court equated the Graham and Harlow standards, Graham must be the clear legal standard that the Ninth Circuit used to deny immunity. This is consistent with circuit precedent implying that Graham is the clear standard. Compare Headwaters Forest Defense v. County of Humboldt, 211 F. 3d 1121, 1141 (CA9 2000), with Graham, supra, 490 U. S., at 396. Because Graham applies to every Fourth Amendment excessive force case, the law will always be deemed "clear" in these cases if the decision below is upheld. The Ninth Circuit's promise of a still-existing qualified immunity defense in excessive force cases is a Potemkin Village. Thus, when denying qualified immunity on summary judgment in an excessive force case, a Ninth Circuit panel concluded, "The inherently fact-specific determination whether the force used to effect an arrest was reasonable under the Fourth Amendment should only be taken from the jury in rare cases." Headwaters Forest Defense, 211 F. 3d, at 1140 (emphasis added). In reality, few, if any, defendants can satisfy the Ninth Circuit's standard, as the Ninth Circuit has all but admitted.
The first problem with the Ninth Circuit's analysis is that it defines the "clearly established statutory or constitutional rights," Harlow, supra, 457 U. S., at 818, at too high a level of abstraction. The Court's reliance on Graham, supra, for the appropriate legal authority for Harlow, see supra, at 11-12, contradicts this Court's treatment of qualified immunity in other Fourth Amendment contexts. In Anderson v. Creighton, 483 U. S. 635, 637 (1987), Anderson, an FBI agent, conducted a warrantless search of the Creightons' home because he believed that a suspected bank robber was hiding there. The Eighth Circuit held that the relevant legal standard under Harlow was the Fourth Amendment right to be free from warrantless searches of one's home absent exigent circumstances and probable cause, a clearly established right at the time of the search. Id., at 638. The Court of Appeals concluded that qualified immunity was improper since the defendant violated this clearly established right. See ibid.
In reversing this decision, the Anderson Court demonstrated how courts should address this aspect of the Harlow standard. It noted that "[t]he operation of this [Harlow] standard, . . . however, depends substantially upon the level of generality at which the relevant 'legal rule' is to be identified." Id., at 639. Most constitutional rights are derived from very clear, but very abstract constitutional provisions. "For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right." Ibid. Accepting this analysis would be the end of qualified immunity. "Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability by alleging violation of extremely abstract rights." Ibid. This would transform Harlow into a mere "rule of pleading," destroying the careful balance between individual and societal interests. Ibid.
"It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id., at 640.
While qualified immunity can be denied even when the specific action has not yet been held unlawful, the illegality still "must be apparent" under "pre-existing law . . . ." Ibid. In Anderson's case, this required deciding whether "it was not clearly established that the circumstances with which Anderson was confronted did not constitute probable cause and exigent circumstances." Id., at 640-641 (emphasis in original). Since "it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present," or that exigent circumstances exist, "in such cases those officials--like other officials who act in ways they reasonably believe to be lawful--should not be held personally liable." Id., at 641. Therefore Anderson would be granted summary judgment if he could establish "that in light of the clearly established principles governing warrantless searches, he could, as a matter of law, have reasonably believed that the search of the Creighton's home was lawful." Ibid.
This analysis is missing from the decision below. The Ninth Circuit did not address the vital issue of what are the relevant "clearly established principles" governing Private Saucier's alleged use of force with any depth. Instead, it operated under the assumption that Graham provided the appropriately clear law. See supra, at 11-12. Although relevant to the qualified immunity inquiry, the Graham standard is too abstract to provide the clear legal standard required under Harlow.
Graham provides the general framework for assessing whether a particular use of force is legal under the Fourth Amendment. This, like most general standards found in Fourth Amendment precedent, operates through a balancing test. Under Graham's objective standard, "the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, supra, 490 U. S., at 397. Courts applying this test must pay "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id., at 396. This judgment is made "from the perspective of the reasonable officer on the scene rather than with the 20/20 vision of hindsight." Ibid.
The relevant legal rules must be much more specific than this before they can provide Harlow's clear standard. Graham governs every use of force that is regulated by the Fourth Amendment. Stating that the reasonableness of the use of force is determined by an objective balancing of the interests based upon the circumstances of the case is not by itself enough to put an officer on notice that a particular use of force is illegal. More is needed, like the cases applying Graham to specific uses of force. See, e.g., Soares v. State of Connecticut, 8 F. 3d 917, 922 (CA2 1993) ("In the present case, the right in question is the right not to be handcuffed in the situation presented to the arresting officers"). Although a case on point is not necessary, there must be enough authority so that the unlawfulness of the act is obvious. See United States v. Lanier, 520 U. S. 259, 269-272 (1997).
Any doubt about the necessary level of specificity under Harlow was resolved in Wilson v. Layne, 526 U. S. 603 (1999). In that case, United States Marshals and local police allowed a reporter and photographer from the Washington Post to accompany them as they executed an arrest warrant in a private home. Id., at 607-608. As in Anderson, the immunity issue turned on defining the relevant right specifically enough. See id., at 614-615. Reiterating what this Court explained in Anderson, "the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established." Id., at 615. The clearly established right must be very specific. "In this case, the appropriate question is the objective inquiry of whether a reasonable officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful, in light of clearly established law and the information the officers possessed." Ibid.
This type of inquiry has not yet been made in this case. In this case, the appropriate question is whether a reasonable officer in Private Saucier's position could have believed that the level of force he exerted was lawful in light of clearly established law and the information he possessed. Cf. ibid. The Court of Appeals did not answer that question correctly. See part III, infra.(2)
The Ninth Circuit's errors in this case did not end with its choice of Graham v. Connor as the relevant legal standard for the qualified immunity analysis. See part II B, supra. It compounded its mistake by equating the reasonable officer standards of Harlow and Graham. See Katz, supra, 194 F. 3d, at 968. This position asserts that since an officer's use of force must be objectively unreasonable to violate Graham, then the officer cannot have acted reasonably to receive qualified immunity under Harlow's objective standard. See id., at 969. Although this position may have some surface appeal, this is "simplistic" analysis. See Eskow & Cole, The Unqualified Paradoxes of Qualified Immunity: Reasonably Mistaken Beliefs, Reasonably Unreasonable Conduct, and the Specter of Subjective Intent That Haunts Objective Legal Reasonableness, 50 Baylor L. Rev. 869, 879 (1998). Focusing on the term "reasonable" to the exclusion of the differences between the Harlow and Graham standards is an analytical trap. Although both cases use this term, "reasonable" qualifies two different decisions made by the officer.
Before separating Harlow and Graham, it is necessary to address the manner in which the Ninth Circuit analyzed the qualified immunity question. The Ninth Circuit divides the Harlow test into two parts:
"To determine whether an official is entitled to qualified immunity, we conduct a two-part analysis: (1) We consider whether the law governing the official's conduct was clearly established. If it was not clearly established, the official is entitled to immunity from suit. (2) If the law was clearly established, we proceed to ask if under that law, a reasonable official could have believed the conduct was lawful." Katz, supra, 194 F. 3d, at 967 (quoting Somers v. Thurman, 109 F. 3d 614, 617 (CA9 1997)).
Since it incorrectly assumed that Graham provided the clear standard to govern Private Saucier's alleged use of force, see part II B, supra, its discussion of Harlow and Graham was directed towards this "second prong of the qualified immunity defense . . . ." Id., at 968.
The Ninth Circuit's analysis reflects its misplaced analytical priorities. The key question in virtually every qualified immunity case is determining whether the official violated a clear legal standard. Qualified immunity protects officials by preventing the retroactive application of new standards to their official acts. See part I, supra. Just as immunity flows from unclear law, liability follows the violation of clearly established standards. See Harlow, supra, 457 U. S., at 818-819. Therefore the existence of clear legal standards is inextricably linked to Harlow's reasonableness standard. Barring a reasonable mistake of fact, see Butz v. Economou, 438 U. S. 478, 507 (1978), the violation of a clear legal standard leads to liability.
The Ninth Circuit's decision to bifurcate Harlow is thus incorrect. " '[C]learly established' for the 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.' " Wilson, supra, 526 U. S., at 614-615 (quoting Anderson, supra, 483 U. S., at 640). The Court of Appeals' attempt to distinguish Anderson, supra, as only addressing one "prong" is similarly incorrect. Anderson cannot be distinguished because it addresses the one and only "prong" of Harlow. See Katz, supra, 194 F. 3d, at 969-970, n. 4. Under Harlow's indivisible standard, the established rule of law at the requisite level of specificity is the key question, which the Ninth Circuit failed to answer. See part II B, supra.
The Anderson Court confronted the relationship between Fourth Amendment reasonableness and Harlow's use of that term. The fact that searches and seizures that violate the Fourth Amendment are "necessarily . . . unreasonabl[e]" did not foreclose qualified immunity for Fourth Amendment violations. See Anderson, supra, 483 U. S., at 643 (emphasis in original). The plaintiff's argument in Anderson was, "It is not possible . . . to say that one 'reasonably' acted unreasonably." Ibid. That argument was contrary to precedent, as qualified immunity had previously been extended to Fourth Amendment violations. See ibid. Furthermore, "the precise content of most of the Constitution's civil liberties guarantees rests upon an assessment of what accommodation between governmental need and individual freedom is reasonable . . . ." Id., at 643-644. For the Fourth Amendment, as for these other provisions, a buffer zone is needed between the limit of government authority, as measured by "reasonableness," and the threshold of personal liability. Given the difficulty of determining whether a search or seizure is legal, officers who make objectively reasonable decisions regarding the legality of searches and seizures "should no more be held personally liable in damages than should officials making analogous determinations in other areas of law." Id., at 644.
There is no reason to separate an officer's use of force from the rest of the Fourth Amendment for the purpose of qualified immunity. Like the rest of the Fourth Amendment, the Graham standard involves a "careful balancing" of individual freedom and government interests. See Graham, supra, 490 U. S., at 396. This "objectively reasonable" inquiry, see id., at 397, is fundamentally different from what a court must decide under Harlow.
While the Harlow standard reflects a balancing of interests, see supra, at 7-8, there is no balancing when applying this test. Instead, Harlow examines the reasonableness of the officer's conclusion that the act was legal. Thus, where reasonably competent officials could disagree on the issue, then immunity will be granted. Malley v. Briggs, 475 U. S. 335, 341 (1986). More importantly, "[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy." Wilson, supra, 526 U. S., at 618.
Since judges can and do disagree over whether a particular use of force is reasonable, it follows that an officer can reasonably but incorrectly conclude that a particular use of force is legal. As Graham requires a "careful balancing" of private and government interests, Graham, supra, 490 U. S., at 396 (emphasis added), it is inevitable that reasonable people will disagree over whether a particular application of force is legal under Graham. Tennessee v. Garner, 471 U. S. 1 (1985) demonstrates that reasonable judges can disagree over the propriety of the use of force in a particular case. While Garner predated Graham, it applied a similar balancing test. See id., at 7-8; accord Graham, 490 U. S., at 396. While a majority of the Garner Court held that using lethal force against an unarmed, fleeing, nondangerous nighttime burglary suspect was excessive, see Garner, 471 U. S., at 11, three justices emphatically disagreed with this conclusion, finding a different balance of interests. See id., at 26-30 (O'Connor, J., dissenting). In light of this split, and the officer's reliance on a previously valid Tennessee statute authorizing this use of force, see id., at 4-5, it is no surprise that the Garner Court took pains to point out that none of the individual defendants would be held liable in that case. See id., at 22. It is unfair to expect officers in the field to act with a unanimity that this Court cannot find.
It is unreasonable to hold officers personally liable for a use of force if they simply fail to guess which way the balance of interests eventually falls. Barring more specific, clearer guidance than Graham, officers can be immune from monetary damages even if the force is subsequently found to violate the Fourth Amendment. Since Private Saucier has not violated any clear standards regarding the use of force, see part III, infra, he is entitled to qualified immunity.
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1. This is incorrect, as the Harlow standard does not have two parts. See infra, at 17-18.
2. At the end of its opinion, the Ninth Circuit concludes that "no reasonable officer could have believed that the amount of force [Saucier] used
was lawful." Katz, supra, 194 F. 3d, at 970. It cited decisions from two other circuits to support this conclusion. See ibid. (citing Sheth v. Webster,
145 F. 3d 1231, 1238 (CA11 1998); Alexis v. McDonald's Restaurants of Massachusetts, Inc., 67 F. 3d 341, 353 (CA1 1995)). Both cases are
readily distinguished from the present case. See part III, infra, at 23-24. This analysis was made in rebuttal to Saucier's "fallback position" that the
use of force "was so minimal that it was per se reasonable." Ibid. Such sparse analysis is not a proper determination of the relevant clear legal
standard.