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SUMMARY OF FACTS AND CASE

As this case comes to this Court on appeal from denial of summary judgment, the question is whether the facts as alleged by plaintiffs would, if proven, defeat the defense of qualified immunity. On September 24, 1994, Vice President Gore gave a speech at the Presidio Army base in San Francisco, California, as part of a public event celebrating the conversion of most of the Presidio into a national park. Katz v. United States, 194 F. 3d 962, 965 (CA9 1999). At this time, animal rights activists were concerned that animal experiments were being conducted at the Army's Letterman Hospital. Ibid. Plaintiff Katz, a 60-year-old veterinarian, and other members of plaintiff In Defense of Animals (IDA) attended the event. Ibid. Katz sat at the front of the public seating area, which was separated from the stage and the dignitary seating area by a waist-high cyclone fence. Ibid. Katz, removing a banner from his jacket, moved towards the barrier as the Vice President started speaking. Katz intended to hang the banner, which read "Please Keep Animal Torture Out of Our National Parks," over the fence so that the Vice President and other dignitaries could read it. Ibid.

In his deposition, Katz claimed that "a military police officer 'grabbed [him] from behind and somebody else tore the banner away' " before he could unfurl it. Ibid. Those two are the defendants Private Donald Saucier and Sergeant Steven Parker. Ibid. Saucier had been told by his superiors that demonstrations would not be allowed. Ibid. The two military policemen each took one of Katz's arms and "started sort of picking [Katz] up and kind of walking [him] out, kind of like very hurriedly, sort of like the bum's rush." Ibid. Katz was taken to a military van parked behind the seating area, and he claims that Saucier and Parker "violently threw" him inside the van. Ibid. Katz claimed "he was able 'to kind of prevent' his head from smashing into the floor of the van . . . ." Id., at 965-966. "With a 'great deal of effort' he was barely able to prevent himself from getting seriously hurt.' " Id., at 966. Katz claims he did not resist arrest, although Saucier disputes this. Id., at 971.

The military police closed the van. Katz was left there for about 20 minutes, until the police put another IDA member in the van. Katz and the other member were then searched and handcuffed. Id., at 966. Next, they were driven to the military police station, where they were briefly detained, and Katz was released. Ibid. Katz was not cited. Ibid.

Katz and the IDA filed suit "alleging multiple claims against the United States, a national park official, and various military officials." Ibid. Katz claimed that Saucier violated his First Amendment free speech right and violated the Fourth Amendment by arresting him without probable cause and with excessive force. Ibid. The District Court granted Saucier's summary judgment motions against the free speech and unlawful arrest claims on qualified immunity grounds. The transitional status of the base and the constitutionality of not allowing protests on military bases, see infra, at 22, and n. 4, made Saucier's belief in the legality of the arrest reasonable. Katz, supra, 194 F. 3d, at 966. The District Court denied Saucier's motion on the excessive force claim, since " 'the qualified immunity inquiry is the same as the inquiry on the merits' " for excessive force claims. Ibid. The Ninth Circuit affirmed, following the District Court's reasoning. See id., at 968-969. This Court granted the United States' certiorari petition on November 13, 2000.

SUMMARY OF ARGUMENT

The Ninth Circuit's decision, that an officer who violates Graham v. Connor is necessarily ineligible for qualified immunity under Harlow v. Fitzgerald, is incorrect. To understand why, it is important to first understand how Harlow's objective standard advances its policy rationale. Harlow's departure from the common law principles of official immunity was based on policy. Qualified immunity is primarily a means to reduce the high social costs of litigation against government officials. The defense is also fair, as it insulates officials from personal liability through sudden changes in the law. The key to qualified immunity is how these interests are advanced, while maintaining an individual's interest in vindicating his or her rights.

The Ninth Circuit's decision in this case effectively eliminates the qualified immunity defense in excessive force cases. Since it holds that Graham provides a clear legal standard for Harlow analysis, the law is never ambiguous in excessive force cases. This holding, when combined with the holding that an officer who violates Graham is per se unreasonable under Harlow, prevents an officer from successfully defending an excessive force case through qualified immunity.

Graham does not provide a sufficiently particularized legal standard for qualified immunity analysis. This Court's cases demonstrate that general standards, such as probable cause or the warrant requirement, are too abstract to provide sufficient guidance for an officer in the field. Like other Fourth Amendment general standards, Graham's balancing test is too abstract for a reasonable officer to know whether a particular use of force is legal. Instead, Harlow requires an examination of the cases applying Graham to a similar use of force in similar situations, which the Ninth Circuit did not do.

The Ninth Circuit's decision to equate the reasonable officer standards of Graham and Harlow is also incorrect. In part, this decision stems from a misdirected focus. The focus of any application of Harlow should be on determining whether the officer violated a legal standard that was clearly established at the time of the act. Harlow's reasonableness standard flows from this determination.

More importantly, the Harlow and Graham standards involve different inquiries. Graham applies a balancing test to determine whether a use of force is appropriate, while Harlow examines the reasonableness of an officer's conclusion that an act was legal. Reasonable people can differ over whether a particular use of force is legal, as demonstrated by this Court's divided opinion in Tennessee v. Garner. No more can be expected of officers in the field. Therefore, an officer can violate Graham and still be entitled to qualified immunity.

Private Saucier's use of force did not violate any clearly established standards. The use of force in this case was minimal, causing no physical injury to the plaintiff. At least two circuits routinely grant qualified immunity in similar situations. Since this case also involves the security of the Vice President, deference to security officers is particularly important. Finally, the two cases cited by the Ninth Circuit to support the finding that Private Saucier acted unreasonably are readily distinguished as each involved much more force in a much less compelling situation than crowd control during the Vice President's speech.

The two-part analysis adopted by the Ninth Circuit is substantially different from this Court's precedents. If this Court does decide to adopt this approach, it should make clear that this is a change in form and that no reduction in the degree of protection is intended.

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January 2001