PEARSON et al. v. CALLAHAN

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PEARSON et al. v. CALLAHAN
certiorari to the united states court of appeals for
the tenth circuit
No. 07–751. Argued October 14, 2008—Decided January 21, 2009
After the Utah Court of Appeals vacated respondent’s conviction for pos
session and distribution of drugs, which he sold to an undercover in
formant he had voluntarily admitted into his house, he brought this 42
U. S. C. § 1983 damages action in federal court, alleging that petitioners,
the officers who supervised and conducted the warrantless search of the
premises that led to his arrest after the sale, had violated the Fourth
Amendment. The District Court granted summary judgment in favor
of the officers. Noting that other courts had adopted the “consent
once-removed” doctrine—which permits a warrantless police entry into
a home when consent to enter has already been granted to an under
cover officer who has observed contraband in plain view—the court con
cluded that the officers were entitled to qualified immunity because they
could reasonably have believed that the doctrine authorized their con
duct. Following the procedure mandated in Saucier v. Katz, 533 U. S.
194, the Tenth Circuit held that petitioners were not entitled to quali
fied immunity. The court disapproved broadening the consent-once
removed doctrine to situations in which the person granted initial con
sent was not an undercover officer, but merely an informant. It further
held that the Fourth Amendment right to be free in one’s home from
unreasonable searches and arrests was clearly established at the time
of respondent’s arrest, and determined that, under this Court’s clearly
established precedents, warrantless entries into a home are per se un
reasonable unless they satisfy one of the two established exceptions for
consent and exigent circumstances. The court concluded that petition
ers could not reasonably have believed that their conduct was lawful
because they knew that (1) they had no warrant; (2) respondent had not
consented to their entry; and (3) his consent to the entry of an informant
could not reasonably be interpreted to extend to them. In granting
certiorari, this Court directed the parties to address whether Saucier
should be overruled in light of widespread criticism directed at it.
Held:
1. The Saucier procedure should not be regarded as an inflexible re
quirement. Pp. 231–243.
(a) Saucier mandated, see 533 U. S., at 194, a two-step sequence
for resolving government officials’ qualified immunity claims: A court

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must decide (1) whether the facts alleged or shown by the plaintiff
make out a violation of a constitutional right, and (2) if so, whether that
right was “clearly established” at the time of the defendant’s alleged
misconduct, id., at 201. Qualified immunity applies unless the official’s
conduct violated such a right. Anderson v. Creighton, 483 U. S. 635, 640.
Pp. 231–232.
(b) Stare decisis does not prevent this Court from determining
whether the Saucier procedure should be modified or abandoned. Re
visiting precedent is particularly appropriate where, as here, a depar
ture would not upset settled expectations, see, e. g., United States v.
Gaudin, 515 U. S. 506, 521; the precedent consists of a rule that is judge
made and adopted to improve court operations, not a statute promul
gated by Congress, see, e. g., State Oil Co. v. Khan, 522 U. S. 3, 20; and
the precedent has “been questioned by Members of th[is] Court in later
decisions and [has] defied consistent application by the lower courts,”
Payne v. Tennessee, 501 U. S. 808, 829–830. Respondent’s argument
that Saucier should not be reconsidered unless the Court concludes that
it was “badly reasoned” or that its rule has proved “unworkable,” see
Payne, supra, at 827, is rejected. Those standards are out of place in
the present context, where a considerable body of new experience sup
ports a determination that a mandatory, two-step rule for resolving all
qualified immunity claims should not be retained. Pp. 233–235.
(c) Reconsideration of the Saucier procedure demonstrates that,
while the sequence set forth therein is often appropriate, it should no
longer be regarded as mandatory in all cases. Pp. 236–243.
(i) The Court continues to recognize that the Saucier protocol is
often beneficial. In some cases, a discussion of why the relevant facts
do not violate clearly established law may make it apparent that in fact
the relevant facts do not make out a constitutional violation at all. And
Saucier was correct in noting that the two-step procedure promotes the
development of constitutional precedent and is especially valuable for
questions that do not frequently arise in cases in which a qualified im
munity defense is unavailable. See 533 U. S., at 194. P. 236.
(ii) Nevertheless, experience in this Court and the lower federal
courts has pointed out the rigid Saucier procedure’s shortcomings. For
example, it may result in a substantial expenditure of scarce judicial
resources on difficult questions that have no effect on the case’s outcome,
and waste the parties’ resources by forcing them to assume the costs
of litigating constitutional questions and endure delays attributable to
resolving those questions when the suit otherwise could be disposed of
more readily. Moreover, although the procedure’s first prong is in
tended to further the development of constitutional precedent, opinions
following that procedure often fail to make a meaningful contribution to

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such development. Further, when qualified immunity is asserted at the
pleading stage, the answer to whether there was a violation may depend
on a kaleidoscope of facts not yet fully developed. And the first step
may create a risk of bad decisionmaking, as where the briefing of consti
tutional questions is woefully inadequate. Application of the Saucier
rule also may make it hard for affected parties to obtain appellate re
view of constitutional decisions having a serious prospective effect on
their operations. For example, where a court holds that a defendant
has committed a constitutional violation, but then holds that the viola
tion was not clearly established, the defendant, as the winning party,
may have his right to appeal the adverse constitutional holding chal
lenged. Because rigid adherence to Saucier departs from the general
rule of constitutional avoidance, cf., e. g., Scott v. Harris, 550 U. S. 372,
388, the Court may appropriately decline to mandate the order of deci
sion that the lower courts must follow, see, e. g., Strickland v. Washing
ton, 466 U. S. 668, 697. This flexibility properly reflects the Court’s
respect for the lower federal courts. Because the two-step Saucier
procedure is often, but not always, advantageous, those judges are in
the best position to determine the order of decisionmaking that will best
facilitate the fair and efficient disposition of each case. Pp. 236–242.
(iii) Misgivings concerning today’s decision are unwarranted. It
does not prevent the lower courts from following Saucier; it simply rec
ognizes that they should have the discretion to decide whether that
procedure is worthwhile in particular cases. Moreover, it will not re
tard the development of constitutional law, result in a proliferation of
damages claims against local governments, or spawn new litigation over
the standards for deciding whether to reach the particular case’s mer
its. Pp. 242–243.
2. Petitioners are entitled to qualified immunity because it was not
clearly established at the time of the search that their conduct was un
constitutional. When the entry occurred, the consent-once-removed
doctrine had been accepted by two State Supreme Courts and three
Federal Courts of Appeals, and not one of the latter had issued a con
trary decision. Petitioners were entitled to rely on these cases, even
though their own Federal Circuit had not yet ruled on consent-once
removed entries. See Wilson v. Layne, 526 U. S. 603, 618. Pp. 243–245.
494 F. 3d 891, reversed.
Alito, J., delivered the opinion for a unanimous Court.
Peter Stirba argued the cause for petitioners. With him
on the briefs were Meb W. Anderson and Orin S. Kerr.

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226 PEARSON v. CALLAHAN
Counsel
Malcolm L. Stewart argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were former Solicitor General Garre, Acting Assistant
Attorneys General Friedrich and Katsas, Deputy Solicitor
General Dreeben, Ann Wallace, Barbara L. Herwig, and Ed
ward Himmelfarb.
Theodore P. Metzler, Jr., argued the cause for respondent.
With him on the brief were Robert A. Long, Jr., and James
K. Slavens.*
*Briefs of amici curiae urging reversal were filed for the State of Illi
nois et al. by Lisa Madigan, Attorney General of Illinois, Michael A. Sco
dro, Solicitor General, and Jane Elinor Notz, Deputy Solicitor General, by
Roberto J. Sa´ nchez-Ramos, Secretary of Justice of Puerto Rico, and by
the Attorneys General for their respective States as follows: Troy King of
Alabama, Talis J. Colberg of Alaska, Dustin McDaniel of Arkansas, Ed
mund G. Brown, Jr., of California, John W. Suthers of Colorado, Bill Mc-
Collum of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of
Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Martha
Coakley of Massachusetts, Michael A. Cox of Michigan, Jim Hood of Mis
sissippi, Mike McGrath of Montana, Catherine Cortez Masto of Nevada,
Kelly A. Ayotte of New Hampshire, Anne Milgram of New Jersey, W. A.
Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania,
Patrick C. Lynch of Rhode Island, Henry D. McMaster of South Carolina,
Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee,
Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of
Vermont, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of
West Virginia, J. B. Van Hollen of Wisconsin, and Bruce A. Salzburg of
Wyoming; and for the National Association of Counties et al. by Richard
Ruda and Lawrence Rosenthal.
Briefs of amici curiae urging affirmance were filed for the ACLU by
Steven R. Shapiro and Adam B. Wolf; for the National Association of
Criminal Defense Lawyers by Jeffrey A. Lamken and Barbara Bergman;
for the National Campaign to Restore Civil Rights by Beth S. Brinkmann,
Seth M. Galanter, and Michael Gerard; and for the National Police Ac
countability Project et al. by Michael Avery, John Burton, Stephen M.
Latimer, David Rudovsky, and Jeffrey L. Needle.
Briefs of amici curiae were filed for the Liberty Legal Institute by
Kelly J. Shackelford; and for the Texas Association of School Boards by
Ramo´ n G. Viada III.

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Opinion of the Court
Justice Alito delivered the opinion of the Court.
This is an action brought by respondent under Rev. Stat.
§ 1979, 42 U. S. C. § 1983, against state law enforcement offi
cers who conducted a warrantless search of his house inci
dent to his arrest for the sale of methamphetamine to an
undercover informant whom he had voluntarily admitted to
the premises. The Court of Appeals held that petitioners
were not entitled to summary judgment on qualified immu
nity grounds. Following the procedure we mandated in
Saucier v. Katz, 533 U. S. 194 (2001), the Court of Appeals
held, first, that respondent adduced facts sufficient to make
out a violation of the Fourth Amendment and, second, that
the unconstitutionality of the officers’ conduct was clearly
established. In granting review, we required the parties to
address the additional question whether the mandatory pro
cedure set out in Saucier should be retained.
We now hold that the Saucier procedure should not be
regarded as an inflexible requirement and that petitioners
are entitled to qualified immunity on the ground that it was
not clearly established at the time of the search that their
conduct was unconstitutional. We therefore reverse.
I
A
The Central Utah Narcotics Task Force is charged with
investigating illegal drug use and sales. In 2002, Brian Bar
tholomew, who became an informant for the task force after
having been charged with the unlawful possession of meth
amphetamine, informed Officer Jeffrey Whatcott that re
spondent Afton Callahan had arranged to sell Bartholomew
methamphetamine later that day.
That evening, Bartholomew arrived at respondent’s resi
dence at about 8 p.m. Once there, Bartholomew went inside
and confirmed that respondent had methamphetamine avail
able for sale. Bartholomew then told respondent that he
needed to obtain money to make his purchase and left.

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Bartholomew met with members of the task force at about
9 p.m. and told them that he would be able to buy a gram
of methamphetamine for $100. Af ter concluding that
Bartholomew was capable of completing the planned pur
chase, the officers searched him, determined that he had no
controlled substances on his person, gave him a marked $100
bill and a concealed electronic transmitter to monitor his con
versations, and agreed on a signal that he would give after
completing the purchase.
The officers drove Bartholomew to respondent’s trailer
home, and respondent’s daughter let him inside. Respond
ent then retrieved a large bag containing methamphetamine
from his freezer and sold Bartholomew a gram of metham
phetamine, which he put into a small plastic bag. Bartholo
mew gave the arrest signal to the officers who were monitor
ing the conversation, and they entered the trailer through a
porch door. In the enclosed porch, the officers encountered
Bartholomew, respondent, and two other persons, and they
saw respondent drop a plastic bag, which they later deter
mined contained methamphetamine. The officers then con
ducted a protective sweep of the premises. In addition to
the large bag of methamphetamine, the officers recovered
the marked bill from respondent and a small bag containing
methamphetamine from Bartholomew, and they found drug
syringes in the residence. As a result, respondent was
charged with the unlawful possession and distribution of
methamphetamine.
B
The trial court held that the warrantless arrest and search
were supported by exigent circumstances. On respondent’s
appeal from his conviction, the Utah attorney general con
ceded the absence of exigent circumstances, but urged that
the inevitable discovery doctrine justified introduction of the
fruits of the warrantless search. The Utah Court of Ap
peals disagreed and vacated respondent’s conviction. See
State v. Callahan, 2004 UT App. 164, 93 P. 3d 103. Respond

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ent then brought this damages action under 42 U. S. C. § 1983
in the United States District Court for the District of Utah,
alleging that the officers had violated the Fourth Amend
ment by entering his home without a warrant. See Calla
han v. Millard Cty., No. 2:04–CV–00952, 2006 WL 1409130
(2006).
In granting the officers’ motion for summary judgment,
the District Court noted that other courts had adopted the
“consent-once-removed” doctrine, which permits a warrant
less entry by police officers into a home when consent to
enter has already been granted to an undercover officer or
informant who has observed contraband in plain view. Be
lieving that this doctrine was in tension with our intervening
decision in Georgia v. Randolph, 547 U. S. 103 (2006), the
District Court concluded that “the simplest approach is to
assume that the Supreme Court will ultimately reject the
[consent-once-removed] doctrine and find that searches such
as the one in this case are not reasonable under the Fourth
Amendment.” 2006 WL 1409130, *8. The court then held
that the officers were entitled to qualified immunity because
they could reasonably have believed that the consent-once
removed doctrine authorized their conduct.
On appeal, a divided panel of the Tenth Circuit held that
petitioners’ conduct violated respondent’s Fourth Amend
ment rights. Callahan v. Millard Cty., 494 F. 3d 891, 895–
899 (2007). The panel majority stated that “[t]he ‘consent
once-removed’ doctrine applies when an undercover officer
enters a house at the express invitation of someone with au
thority to consent, establishes probable cause to arrest or
search, and then immediately summons other officers for as
sistance.” Id., at 896. The majority took no issue with ap
plication of the doctrine when the initial consent was granted
to an undercover law enforcement officer, but the majority
disagreed with decisions that “broade[n] this doctrine to
grant informants the same capabilities as undercover offi
cers.” Ibid.

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The Tenth Circuit panel further held that the Fourth
Amendment right that it recognized was clearly established
at the time of respondent’s arrest. Id., at 898–899. “In this
case,” the majority stated, “the relevant right is the right to
be free in one’s home from unreasonable searches and ar
rests.” Id., at 898. The Court determined that, under the
clearly established precedents of this Court and the Tenth
Circuit, “warrantless entries into a home are per se unrea
sonable unless they satisfy the established exceptions.” Id.,
at 898–899. In the panel’s words, “the Supreme Court and
the Tenth Circuit have clearly established that to allow po
lice entry into a home, the only two exceptions to the war
rant requirement are consent and exigent circumstances.”
Id., at 899. Against that backdrop, the panel concluded,
petitioners could not reasonably have believed that their con
duct was lawful because petitioners “knew (1) they had no
warrant; (2) [respondent] had not consented to their entry;
and (3) [respondent’s] consent to the entry of an informant
could not reasonably be interpreted to extend to them.”
Ibid.
In dissent, Judge Kelly argued that “no constitutional vio
lation occurred in this case” because, by inviting Bartholo
mew into his house and participating in a narcotics transac
tion there, respondent had compromised the privacy of the
residence and had assumed the risk that Bartholomew would
reveal their dealings to the police. Id., at 903. Judge Kelly
further concluded that, even if petitioners’ conduct had been
unlawful, they were nevertheless entitled to qualified immu
nity because the constitutional right at issue—“the right to
be free from the warrantless entry of police officers into one’s
home to effectuate an arrest after one has granted voluntary,
consensual entry to a confidential informant and undertaken
criminal activity giving rise to probable cause”—was not
“clearly established” at the time of the events in question.
Id., at 903–904.

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Opinion of the Court
As noted, the Court of Appeals followed the Saucier pro
cedure. The Saucier procedure has been criticized by Mem
bers of this Court and by lower court judges, who have been
required to apply the procedure in a great variety of cases
and thus have much firsthand experience bearing on its ad
vantages and disadvantages. Accordingly, in granting cer
tiorari, we directed the parties to address the question
whether Saucier should be overruled. 552 U. S. 1279 (2008).
II
A
The doctrine of qualified immunity protects government
officials “from liability for civil damages insofar as their con
duct does not violate clearly established statutory or consti
tutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982).
Qualified immunity balances two important interests—the
need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from har
assment, distraction, and liability when they perform their
duties reasonably. The protection of qualified immunity ap
plies regardless of whether the government official’s error is
“a mistake of law, a mistake of fact, or a mistake based on
mixed questions of law and fact.” Groh v. Ramirez, 540
U. S. 551, 567 (2004) (Kennedy, J., dissenting) (quoting Butz
v. Economou, 438 U. S. 478, 507 (1978), for the proposition
that qualified immunity covers “mere mistakes in judgment,
whether the mistake is one of fact or one of law”).
Because qualified immunity is “an immunity from suit
rather than a mere defense to liability . . . it is effectively lost
if a case is erroneously permitted to go to trial.” Mitchell v.
Forsyth, 472 U. S. 511, 526 (1985) (emphasis deleted). In
deed, we have made clear that the “driving force” behind
creation of the qualified immunity doctrine was a desire to
ensure that “ ‘insubstantial claims’ against government offi
cials [will] be resolved prior to discovery.” Anderson v.

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Creighton, 483 U. S. 635, 640, n. 2 (1987). Accordingly, “we
repeatedly have stressed the importance of resolving immu
nity questions at the earliest possible stage in litigation.”
Hunter v. Bryant, 502 U. S. 224, 227 (1991) (per curiam).
In Saucier, 533 U. S. 194, this Court mandated a two-step
sequence for resolving government officials’ qualified immu
nity claims. First, a court must decide whether the facts
that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6),
(c)) or shown (see Rules 50, 56) make out a violation of a
constitutional right. 533 U. S., at 201. Second, if the plain
tiff has satisfied this first step, the court must decide
whether the right at issue was “clearly established” at the
time of defendant’s alleged misconduct. Ibid. Qualified
immunity is applicable unless the official’s conduct violated a
clearly established constitutional right. Anderson, supra,
at 640.
Our decisions prior to Saucier had held that “the better
approach to resolving cases in which the defense of qualified
immunity is raised is to determine first whether the plaintiff
has alleged a deprivation of a constitutional right at all.”
County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5
(1998). Saucier made that suggestion a mandate. For the
first time, we held that whether “the facts alleged show the
officer’s conduct violated a constitutional right . . . must be
the initial inquiry” in every qualified immunity case. 533
U. S., at 201 (emphasis added). Only after completing this
first step, we said, may a court turn to “the next, sequential
step,” namely, “whether the right was clearly established.”
Ibid.
This two-step procedure, the Saucier Court reasoned, is
necessary to support the Constitution’s “elaboration from
case to case” and to prevent constitutional stagnation. Ibid.
“The law might be deprived of this explanation were a court
simply to skip ahead to the question whether the law clearly
established that the officer’s conduct was unlawful in the cir
cumstances of the case.” Ibid.

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Opinion of the Court
B
In considering whether the Saucier procedure should be
modified or abandoned, we must begin with the doctrine of
stare decisis. Stare decisis “promotes the evenhanded, pre
dictable, and consistent development of legal principles, fos
ters reliance on judicial decisions, and contributes to the ac
tual and perceived integrity of the judicial process.” Payne
v. Tennessee, 501 U. S. 808, 827 (1991). Although “[w]e ap
proach the reconsideration of [our] decisions . . . with the
utmost caution,” “[s]tare decisis is not an inexorable com
mand.” State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) (inter
nal quotation marks omitted). Revisiting precedent is par
ticularly appropriate where, as here, a departure would not
upset expectations, the precedent consists of a judge-made
rule that was recently adopted to improve the operation of
the courts, and experience has pointed up the precedent’s
shortcomings.
“Considerations in favor of stare decisis are at their acme
in cases involving property and contract rights, where reli
ance interests are involved; the opposite is true in cases . . .
involving procedural and evidentiary rules” that do not
produce such reliance. Payne, supra, at 828 (citations omit
ted). Like rules governing procedures and the admission of
evidence in the trial courts, Saucier’s two-step protocol does
not affect the way in which parties order their affairs.
Withdrawing from Saucier’s categorical rule would not
upset settled expectations on anyone’s part. See United
States v. Gaudin, 515 U. S. 506, 521 (1995).
Nor does this matter implicate “the general presumption
that legislative changes should be left to Congress.” Khan,
supra, at 20. We recognize that “considerations of stare
decisis weigh heavily in the area of statutory construction,
where Congress is free to change this Court’s interpretation
of its legislation.” Illinois Brick Co. v. Illinois, 431 U. S.
720, 736 (1977). But the Saucier rule is judge made and
implicates an important matter involving internal Judicial

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Branch operations. Any change should come from this
Court, not Congress.
Respondent argues that the Saucier procedure should not
be reconsidered unless we conclude that its justification was
“badly reasoned” or that the rule has proved to be “unwork
able,” see Payne, supra, at 827, but those standards, which
are appropriate when a constitutional or statutory precedent
is challenged, are out of place in the present context. Be
cause of the basis and the nature of the Saucier two-step
protocol, it is sufficient that we now have a considerable body
of new experience to consider regarding the consequences of
requiring adherence to this inflexible procedure. This expe
rience supports our present determination that a mandatory,
two-step rule for resolving all qualified immunity claims
should not be retained.
Lower court judges, who have had the task of applying
the Saucier rule on a regular basis for the past eight years,
have not been reticent in their criticism of Saucier’s “rigid
order of battle.” See, e. g., Purtell v. Mason, 527 F. 3d 615,
622 (CA7 2008) (“This ‘rigid order of battle’ has been criti
cized on practical, procedural, and substantive grounds”);
Leval, Judging Under the Constitution: Dicta About Dicta,
81 N. Y. U. L. Rev. 1249, 1275, 1277 (2006) (hereinafter Leval)
(referring to Saucier’s mandatory two-step framework as
“a new and mischievous rule” that amounts to “a puzzling
misadventure in constitutional dictum”). And application of
the rule has not always been enthusiastic. See Higazy v.
Templeton, 505 F. 3d 161, 179, n. 19 (CA2 2007) (“We do not
reach the issue of whether [plaintiff ’s] Sixth Amendment
rights were violated, because principles of judicial restraint
caution us to avoid reaching constitutional questions when
they are unnecessary to the disposition of a case”); Cherring
ton v. Skeeter, 344 F. 3d 631, 640 (CA6 2003) (“[I]t ultimately
is unnecessary for us to decide whether the individual
Defendants did or did not heed the Fourth Amendment

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command . . . because they are entitled to qualified immunity
in any event”); Pearson v. Ramos, 237 F. 3d 881, 884 (CA7
2001) (“Whether [the Saucier] rule is absolute may be
doubted”).
Members of this Court have also voiced criticism of the
Saucier rule. See Morse v. Frederick, 551 U. S. 393, 432
(2007) (Breyer, J., concurring in judgment in part and dis
senting in part) (“I would end the failed Saucier experiment
now”); Bunting v. Mellen, 541 U. S. 1019 (2004) (Stevens, J.,
joined by Ginsburg and Breyer, JJ., respecting denial of
certiorari) (criticizing the “unwise judge-made rule under
which courts must decide whether the plaintiff has alleged
a constitutional violation before addressing the question
whether the defendant state actor is entitled to qualified im
munity”); id., at 1025 (Scalia, J., joined by Rehnquist, C. J.,
dissenting from denial of certiorari) (“We should either make
clear that constitutional determinations are not insulated
from our review . . . or else drop any pretense at requiring
the ordering in every case” (emphasis in original)); Brosseau
v. Haugen, 543 U. S. 194, 201–202 (2004) (Breyer, J., joined
by Scalia and Ginsburg, JJ., concurring) (urging Court to
reconsider Saucier’s “rigid ‘order of battle,’ ” which “re
quires courts unnecessarily to decide difficult constitutional
questions when there is available an easier basis for the deci
sion (e. g., qualified immunity) that will satisfactorily resolve
the case before the court”); Saucier, 533 U. S., at 210 (Gins
burg, J., concurring in judgment) (“The two-part test to
day’s decision imposes holds large potential to confuse”).
Where a decision has “been questioned by Members of the
Court in later decisions and [has] defied consistent applica
tion by the lower courts,” these factors weigh in favor of
reconsideration. Payne, 501 U. S., at 829–830; see also
Crawford v. Washington, 541 U. S. 36, 60 (2004). Collec
tively, the factors we have noted make our present reevalua
tion of the Saucier two-step protocol appropriate.

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III
On reconsidering the procedure required in Saucier, we
conclude that, while the sequence set forth there is often
appropriate, it should no longer be regarded as mandatory.
The judges of the district courts and the courts of appeals
should be permitted to exercise their sound discretion in de
ciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circum
stances in the particular case at hand.
A
Although we now hold that the Saucier protocol should
not be regarded as mandatory in all cases, we continue to
recognize that it is often beneficial. For one thing, there are
cases in which there would be little if any conservation of
judicial resources to be had by beginning and ending with a
discussion of the “clearly established” prong. “[I]t often
may be difficult to decide whether a right is clearly estab
lished without deciding precisely what the existing constitu
tional right happens to be.” Lyons v. Xenia, 417 F. 3d 565,
581 (CA6 2005) (Sutton, J., concurring). In some cases, a
discussion of why the relevant facts do not violate clearly
established law may make it apparent that in fact the rele
vant facts do not make out a constitutional violation at all.
In addition, the Saucier Court was certainly correct in not
ing that the two-step procedure promotes the development
of constitutional precedent and is especially valuable with
respect to questions that do not frequently arise in cases in
which a qualified immunity defense is unavailable.
B
At the same time, however, the rigid Saucier procedure
comes with a price. The procedure sometimes results in a
substantial expenditure of scarce judicial resources on diffi

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cult questions that have no effect on the outcome of the case.
There are cases in which it is plain that a constitutional right
is not clearly established but far from obvious whether in
fact there is such a right. District courts and courts of ap
peals with heavy caseloads are often understandably unen
thusiastic about what may seem to be an essentially aca
demic exercise.
Unnecessary litigation of constitutional issues also wastes
the parties’ resources. Qualified immunity is “an immunity
from suit rather than a mere defense to liability.” Mitchell,
472 U. S., at 526 (emphasis deleted). Saucier’s two-step pro
tocol “disserve[s] the purpose of qualified immunity” when it
“forces the parties to endure additional burdens of suit—
such as the costs of litigating constitutional questions and
delays attributable to resolving them—when the suit other
wise could be disposed of more readily.” Brief for Na
tional Association of Criminal Defense Lawyers as Amicus
Curiae 30.
Although the first prong of the Saucier procedure is in
tended to further the development of constitutional prece
dent, opinions following that procedure often fail to make
a meaningful contribution to such development. For one
thing, there are cases in which the constitutional question is
so factbound that the decision provides little guidance for
future cases. See Scott v. Harris, 550 U. S. 372, 388 (2007)
(Breyer, J., concurring) (counseling against the Saucier
two-step protocol where the question is “so fact dependent
that the result will be confusion rather than clarity”);
Buchanan v. Maine, 469 F. 3d 158, 168 (CA1 2006) (“We do
not think the law elaboration purpose will be well served
here, where the Fourth Amendment inquiry involves a rea
sonableness question which is highly idiosyncratic and heav
ily dependent on the facts”).
A decision on the underlying constitutional question in a
§ 1983 damages action or a Bivens v. Six Unknown Fed. Nar

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cotics Agents, 403 U. S. 388 (1971),1 action may have scant
value when it appears that the question will soon be decided
by a higher court. When presented with a constitutional
question on which this Court had just granted certiorari, the
Ninth Circuit elected to “bypass Saucier’s first step and de
cide only whether [the alleged right] was clearly estab
lished.” Motley v. Parks, 432 F. 3d 1072, 1078, and n. 5
(2005) (en banc). Similar considerations may come into play
when a court of appeals panel confronts a constitutional
question that is pending before the court en banc or when
a district court encounters a constitutional question that is
before the court of appeals.
A constitutional decision resting on an uncertain interpre
tation of state law is also of doubtful precedential impor
tance. As a result, several courts have identified an “excep
tion” to the Saucier rule for cases in which resolution of the
constitutional question requires clarification of an ambiguous
state statute. Egolf v. Witmer, 526 F. 3d 104, 109–111 (CA3
2008); accord, Tremblay v. McClellan, 350 F. 3d 195, 200
(CA1 2003); Ehrlich v. Glastonbury, 348 F. 3d 48, 57–60 (CA2
2003). Justifying the decision to grant qualified immunity
to the defendant without first resolving, under Saucier’s first
prong, whether the defendant’s conduct violated the Consti
tution, these courts have observed that Saucier’s “underly
ing principle” of encouraging federal courts to decide unclear
legal questions in order to clarify the law for the future “is
not meaningfully advanced . . . when the definition of consti
tutional rights depends on a federal court’s uncertain as
sumptions about state law.” Egolf, supra, at 110; accord,
Tremblay, supra, at 200; Ehrlich, supra, at 58.
When qualified immunity is asserted at the pleading stage,
the precise factual basis for the plaintiff ’s claim or claims
1 See Harlow v. Fitzgerald, 457 U. S. 800, 818, and n. 30 (1982) (noting
that the Court’s decisions equate the qualified immunity of state officials
sued under 42 U. S. C. § 1983 with the immunity of federal officers sued
directly under the Constitution).

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may be hard to identify. See Lyons, 417 F. 3d, at 582 (Sut
ton, J., concurring); Kwai Fun Wong v. United States, 373
F. 3d 952, 957 (CA9 2004); Mollica v. Volker, 229 F. 3d 366,
374 (CA2 2000). Accordingly, several courts have recog
nized that the two-step inquiry “is an uncomfortable exercise
where . . . the answer [to] whether there was a violation may
depend on a kaleidoscope of facts not yet fully developed”
and have suggested that “[i]t may be that Saucier was not
strictly intended to cover” this situation. Dirrane v. Brook
line Police Dept., 315 F. 3d 65, 69–70 (CA1 2002); see also
Robinette v. Jones, 476 F. 3d 585, 592, n. 8 (CA8 2007) (declin
ing to follow Saucier because “the parties have provided
very few facts to define and limit any holding” on the consti
tutional question).
There are circumstances in which the first step of the Sau
cier procedure may create a risk of bad decisionmaking.
The lower courts sometimes encounter cases in which the
briefing of constitutional questions is woefully inadequate.
See Lyons, supra, at 582 (Sutton, J., concurring) (noting the
“risk that constitutional questions may be prematurely and
incorrectly decided in cases where they are not well pre
sented”); Mollica, supra, at 374.
Although the Saucier rule prescribes the sequence in
which the issues must be discussed by a court in its opinion,
the rule does not—and obviously cannot—specify the se
quence in which judges reach their conclusions in their own
internal thought processes. Thus, there will be cases in
which a court will rather quickly and easily decide that there
was no violation of clearly established law before turning to
the more difficult question whether the relevant facts make
out a constitutional question at all. In such situations, there
is a risk that a court may not devote as much care as it would
in other circumstances to the decision of the constitutional
issue. See Horne v. Coughlin, 191 F. 3d 244, 247 (CA2 1999)
(“Judges risk being insufficiently thoughtful and cautious in

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uttering pronouncements that play no role in their adjudica
tion”); Leval 1278–1279.
Rigid adherence to the Saucier rule may make it hard for
affected parties to obtain appellate review of constitutional
decisions that may have a serious prospective effect on their
operations. Where a court holds that a defendant com
mitted a constitutional violation but that the violation was
not clearly established, the defendant may face a difficult sit
uation. As the winning party, the defendant’s right to ap
peal the adverse holding on the constitutional question may
be contested. See Bunting, 541 U. S., at 1025 (Scalia, J.,
dissenting from denial of certiorari) (“The perception of un
reviewability undermines adherence to the sequencing rule
we . . . created” in Saucier); 2 see also Kalka v. Hawk, 215
F. 3d 90, 96, n. 9 (CADC 2000) (noting that “[n]ormally, a
party may not appeal from a favorable judgment” and that
the Supreme Court “has apparently never granted the cer
tiorari petition of a party who prevailed in the appellate
court”). In cases like Bunting, the “prevailing” defendant
faces an unenviable choice: “compl[y] with the lower court’s
advisory dictum without opportunity to seek appellate [or
certiorari] review,” or “def[y] the views of the lower court,
adher[e] to practices that have been declared illegal, and thus
2 In Bunting, the Court of Appeals followed the Saucier two-step proto
col and first held that the Virginia Military Institute’s use of the word
“God” in a “supper roll call” ceremony violated the Establishment Clause,
but then granted the defendants qualified immunity because the law was
not clearly established at the relevant time. Mellen v. Bunting, 327 F. 3d
355, 365–376 (CA4 2003), cert. denied, 541 U. S. 1019 (2004). Although
they had a judgment in their favor below, the defendants asked this Court
to review the adverse constitutional ruling. Dissenting from the denial
of certiorari, Justice Scalia, joined by Chief Justice Rehnquist, criticized
“a perceived procedural tangle of the Court’s own making.” 541 U. S., at
1022. The “tangle” arose from the Court’s “ ‘settled refusal’ to entertain
an appeal by a party on an issue as to which he prevailed” below, a practice
that insulates from review adverse merits decisions that are “locked in
side” favorable qualified immunity rulings. Id., at 1022, 1023, 1024.

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invit[e] new suits” and potential “punitive damages. ”
Horne, supra, at 247–248.
Adherence to Saucier’s two-step protocol departs from the
general rule of constitutional avoidance and runs counter to
the “older, wiser judicial counsel ‘not to pass on questions of
constitutionality . . . unless such adjudication is unavoid
able.’ ” Scott, 550 U. S., at 388 (Breyer, J., concurring)
(quoting Spector Motor Service, Inc. v. McLaughlin, 323
U. S. 101, 105 (1944)); see Ashwander v. TVA, 297 U. S. 288,
347 (1936) (Brandeis, J., concurring) (“The Court will not
pass upon a constitutional question although properly pre
sented by the record, if there is also present some other
ground upon which the case may be disposed of ”).
In other analogous contexts, we have appropriately de
clined to mandate the order of decision that the lower courts
must follow. For example, in Strickland v. Washington, 466
U. S. 668 (1984), we recognized a two-part test for determin
ing whether a criminal defendant was denied the effective
assistance of counsel: The defendant must demonstrate
(1) that his counsel’s performance fell below what could be
expected of a reasonably competent practitioner; and (2) that
he was prejudiced by that substandard performance. Id., at
687. After setting forth and applying the analytical frame
work that courts must use in evaluating claims of ineffective
assistance of counsel, we left it to the sound discretion of
lower courts to determine the order of decision. Id., at 697
(“Although we have discussed the performance component of
an ineffectiveness claim prior to the prejudice component,
there is no reason for a court deciding an ineffective assist
ance claim to approach the inquiry in the same order or even
to address both components of the inquiry if the defendant
makes an insufficient showing on one”).
In United States v. Leon, 468 U. S. 897 (1984), we created
an exception to the exclusionary rule when officers reason
ably rely on a facially valid search warrant. Id., at 913. In
that context, we recognized that a defendant challenging a

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search will lose if either: (1) the warrant issued was sup
ported by probable cause; or (2) it was not, but the officers
executing it reasonably believed that it was. Again, after
setting forth and applying the analytical framework that
courts must use in evaluating the good-faith exception to the
Fourth Amendment warrant requirement, we left it to the
sound discretion of the lower courts to determine the order
of decision. Id., at 924, 925 (“There is no need for courts to
adopt the inflexible practice of always deciding whether the
officers’ conduct manifested objective good faith before turn
ing to the question whether the Fourth Amendment has
been violated”).
This flexibility properly reflects our respect for the lower
federal courts that bear the brunt of adjudicating these
cases. Because the two-step Saucier procedure is often, but
not always, advantageous, the judges of the district courts
and the courts of appeals are in the best position to deter
mine the order of decisionmaking that will best facilitate the
fair and efficient disposition of each case.
C
Any misgivings concerning our decision to withdraw from
the mandate set forth in Saucier are unwarranted. Our de
cision does not prevent the lower courts from following the
Saucier procedure; it simply recognizes that those courts
should have the discretion to decide whether that procedure
is worthwhile in particular cases. Moreover, the develop
ment of constitutional law is by no means entirely dependent
on cases in which the defendant may seek qualified immunity.
Most of the constitutional issues that are presented in § 1983
damages actions and Bivens cases also arise in cases in
which that defense is not available, such as criminal cases
and § 1983 cases against a municipality, as well as § 1983
cases against individuals where injunctive relief is sought
instead of or in addition to damages. See Lewis, 523 U. S.,
at 841, n. 5 (noting that qualified immunity is unavailable

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“in a suit to enjoin future conduct, in an action against a
municipality, or in litigating a suppression motion”).
We also do not think that relaxation of Saucier’s mandate
is likely to result in a proliferation of damages claims against
local governments. Cf. Brief for National Association of
Counties et al. as Amici Curiae 29, 30 (“[T]o the extent that
a rule permitting courts to bypass the merits makes it more
difficult for civil rights plaintiffs to pursue novel claims, they
will have greater reason to press custom, policy, or practice
[damages] claims against local governments”). It is hard to
see how the Saucier procedure could have a significant effect
on a civil rights plaintiff ’s decision whether to seek damages
only from a municipal employee or also from the municipality.
Whether the Saucier procedure is mandatory or discre
tionary, the plaintiff will presumably take into account the
possibility that the individual defendant will be held to have
qualified immunity, and presumably the plaintiff will seek
damages from the municipality as well as the individual em
ployee if the benefits of doing so (any increase in the like
lihood of recovery or collection of damages) outweigh the
litigation costs.
Nor do we think that allowing the lower courts to exercise
their discretion with respect to the Saucier procedure will
spawn “a new cottage industry of litigation . . . over the
standards for deciding whether to reach the merits in a given
case.” Brief for National Association of Counties, supra, at
29, 30. It does not appear that such a “cottage industry”
developed prior to Saucier, and we see no reason why our
decision today should produce such a result.
IV
Turning to the conduct of the officers here, we hold that
petitioners are entitled to qualified immunity because the
entry did not violate clearly established law. An officer con
ducting a search is entitled to qualified immunity where
clearly established law does not show that the search vio

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lated the Fourth Amendment. See Anderson, 483 U. S., at
641. This inquiry turns on the “objective legal reasonable
ness of the action, assessed in light of the legal rules that
were clearly established at the time it was taken.” Wilson
v. Layne, 526 U. S. 603, 614 (1999) (internal quotation marks
omitted); see Hope v. Pelzer, 536 U. S. 730, 739 (2002)
(“[Q]ualified immunity operates to ensure that before they
are subjected to suit, officers are on notice their conduct is
unlawful” (internal quotation marks omitted)).
When the entry at issue here occurred in 2002, the
“consent-once-removed” doctrine had gained acceptance in
the lower courts. This doctrine had been considered by
three Federal Courts of Appeals and two State Supreme
Courts starting in the early 1980’s. See, e. g., United States
v. Diaz, 814 F. 2d 454, 459 (CA7), cert. denied, 484 U. S. 857
(1987); United States v. Bramble, 103 F. 3d 1475 (CA9 1996);
United States v. Pollard, 215 F. 3d 643, 648–649 (CA6), cert.
denied, 531 U. S. 999 (2000); State v. Henry, 133 N. J. 104, 627
A. 2d 125 (1993); State v. Johnston, 184 Wis. 2d 794, 518 N. W.
2d 759 (1994). It had been accepted by every one of those
courts. Moreover, the Seventh Circuit had approved the
doctrine’s application to cases involving consensual entries
by private citizens acting as confidential informants. See
United States v. Paul, 808 F. 2d 645, 648 (1986). The Sixth
Circuit reached the same conclusion after the events that
gave rise to respondent’s suit, see United States v. Yoon, 398
F. 3d 802, 806–808, cert. denied, 546 U. S. 977 (2005), and
prior to the Tenth Circuit’s decision in the present case, no
court of appeals had issued a contrary decision.
The officers here were entitled to rely on these cases, even
though their own Federal Circuit had not yet ruled on
“consent-once-removed” entries. The principles of qualified
immunity shield an officer from personal liability when an
officer reasonably believes that his or her conduct complies
with the law. Police officers are entitled to rely on existing
lower court cases without facing personal liability for their

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actions. In Wilson, we explained that a Circuit split on the
relevant issue had developed after the events that gave rise
to suit and concluded that “[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.” 526
U. S., at 618. Likewise, here, where the divergence of views
on the consent-once-removed doctrine was created by the
decision of the Court of Appeals in this case, it is improper
to subject petitioners to money damages for their conduct.
Because the unlawfulness of the officers’ conduct in this
case was not clearly established, petitioners are entitled to
qualified immunity. We therefore reverse the judgment of
the Court of Appeals.
It is so ordered.