Indiana Law Review


Excessive Reasonableness

Diana Hassel*

Abstract

This Article examines a crucial flaw in the qualified immunity

doctrine and explains how it results in overprotection ofdefendants from
liability. When qualified immunity is applied in a Fourth Amendment
excessive force case, the defendant, typically a police officer, is

protected from liability by two layers ofreasonableness. First, qualified

immunity absolves an individual government agent from liability under

42 U.S.C. § 1983, notwithstanding his violation ofa constitutional right,

if his actions were "objectively reasonable." Second, the agent is

likewise absolved from liability under the Fourth Amendment itself if
the amount offorce used was "objectively reasonable." When these two
doctrines converge, an almost impenetrable barrier to liability results.

Although the Supreme Court has repeatedly tried to resolve conflicts

inherent in the qualified immunity doctrine, most recently in Pearson v.

Callahan, the excessive reasonableness in the qualified immunity

regime, and the excessive force that is its practical consequence, remain.

Introduction

The qualified immunity doctrine arises as a defense to virtually every

constitutional claim brought against an individual government actor under 42

U.S.C. § 1983 or its federal defendant analogue, Bivens v. Six Unknown Named
Agents ofthe Federal Bureau ofNarcotics} By dint ofthe defense, defendants
are not liable unless their actions violate a clearly established right "ofwhich a

reasonable person would have known."
2

Defendants are entitled to qualified

* Professor, Roger Williams University School of Law. B.A., 1979, Mount Holyoke

College; J.D., 1 985, Rutgers University School ofLaw at Newark. I would like to thank Professors

Jared Goldstein, Jonathan Gutoff, Colleen Murphy, and Michael Yelnosky for their helpful

comments. Able research assistance was provided by Kyle Posey and Julie Moore. Also, thank you

to Ron Shwartz for his skilled editing.

1

.

Section 1 983 was first passed in 1871 and was known as the Ku Klux Klan Act. Act of

Apr. 20, 1871, ch. 22, § 1, 17 Stat. 13 (1871) (current version at 42 U.S.C. § 1983 (2006)). It was

enacted in response to violence against newly freed slaves that was uncontrolled by state

governments; the Act was meant to provide a broad federal remedy against violations ofcivil rights

by state government. See Peter H. Schuck, Suing Government: Citizen Remedies for

Official Wrongs 47 ( 1 983). In the absence of a similar remedy against civil rights violations by

the federal government, the Supreme Court in Bivens v. Six Unknown NamedAgents ofthe Federal

Bureau ofNarcotics created a broad remedy, similar to § 1983, for federal officials. 403 U.S. 388,

396-97(1971).

2. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).



1 1

8

INDIANA LAW REVIEW [Vol. 43 : 1 1

7

immunity if their actions are objectively reasonable.
3

Since its inception, the

doctrine has routinely perplexed and frustrated civil rights litigants, federal

judges, and even the U.S. Supreme Court. The courts and litigants grappling
with the complex qualified immunity defense seem to be following the dance
steps required by the doctrine but without any music to give the dance meaning.

In January 2009, the Supreme Court, in Pearson v. Callahan,
4
once again

attempted to bring some clarity to the qualified immunity regime. Pearson gives
discretion to the lower courts in the sequence in which they address the issues

raised by a qualified immunity defense to a constitutional claim.
5
Rather than

requiring that lower courts first determine whether a constitutional right has been

violated before moving on to qualified immunity, the courts are permitted to
address whether the defendant is entitled to qualified immunity without ever

reaching the constitutional issue.
6

This modification may give some relief to
courts attempting to apply the qualified immunity defense, but it does not address

fundamental problems at the heart of the qualified immunity doctrine.

Meaningful improvements can only be made by examining the defense's basic
underlying principles.

The Court's development of the qualified immunity doctrine has stretched
the rationale underlying the defense to a breaking point. Instead of providing

protection only to those government actors who violate the law unwittingly and
reasonably, qualified immunity has metastasized into an almost absolute defense

to all but the most outrageous conduct. The values of deterrence of unlawful
behavior and compensation for civil rights victims have been overshadowed by
the desire to protect government agents, particularly police officers, from almost

all claims against them. The balance originally struck by the qualified immunity
defense—protection for the innocent wrongdoer versus compensation for the
victim—has gone awry.

This Article focuses on the most significant feature of the imbalance that

now exists in the qualified immunity doctrine: the Court's insistence on applying
the objective reasonableness standard ofqualified immunity in conjunction with

a duplicative underlying constitutional standard. This problem is most acute in

excessive force claims. An apparent duplication ofthe objective reasonableness
standard of the Fourth Amendment in excessive force cases and the same
objective reasonableness standard in the qualified immunity doctrine has created

a nearly impenetrable defense to excessive force claims. Despite critical

scholarly commentary and the Supreme Court's own attempts to quiet the
controversy created by this excessive reasonableness, the problem remains

unresolved.
7

3. Id at 818-19.

4. 129S. Ct. 808(2009).

5. Id at 818. "[Lower courts] should be permitted to exercise their sound discretion

in deciding which of the two prongs of the qualified immunity analysis should be addressed

first

6. Id at 819-20.

7. In addition to the excessive reasonableness problem, an extensive body of critique has



2009] EXCESSIVE REASONABLENESS 1 1

9

Meanwhile, far removed from the debate over doctrinal niceties, the

operational problem of how to address the use of unjustified force by police
officers persists. The current legal regime has largely failed in its attempt to

control excessive police violence.
8
At least in part that failure flows from the

difficulty faced by claimants under § 1983 to overcome the insulation from

liability that defendants derive from both the Fourth Amendment requirements
and the qualified immunity standard. Until the nearly insurmountable barrier to

recovery created by excessive reasonableness is somehow relieved, civil actions
based on the Fourth Amendment will not effectively deter police violence.

Addressing the problem of police violence, providing balance to doctrine

overly protective of defendants, and simplifying the procedural morass that

qualified immunity has created in excessive force cases requires a radical

modification of the doctrine. In excessive force cases, the doctrine should be

modified to protect a defendant only when there has been a genuine change in the
legal standard governing his actions—not merely an application of established
doctrine to a somewhat new set offacts. Currently, qualified immunity prevents
liability if the defendant's actions do not violate clearly established law "of

which a reasonable person would have known."
9
Instead, the standard should be

that the defendant will be liable unless his actions violate a newly developed

legal standard. In the excessive force context, the protection provided by the

reasonableness standard of Fourth Amendment, in conjunction with this more

developed concerning the qualified immunity defense generally. See, e.g., Akhil Reed Amar,

Fourth Amendment First Principles, 1 07 Harv. L. REV. 757,812(1 994) (questioning whether the

defense should exist at all); Alan K. Chen, The Facts About Qualified Immunity, 55 EMORY L.J.

229 (2006); Teressa E. Ravenell, Hammering in Screws: Why the Court Should Look Beyond

Summary Judgment When Resolving § 1983 Qualified Immunity Disputes, 52 VlLL. L. Rev. 135,

185-86 (2007) (discussing whether the qualified immunity defense should be used to quickly

resolve civil rights litigation); Henk J. Brands, Note, Qualified Immunity and the Allocation of

Decision-Making Functions Between Judge and Jury, 90 COLUM. L. Rev. 1045, 1057 (1990)

(discussing what role judges and juries play in resolving qualified immunity issues); Michael S.

Catlett, Note, Clearly Not Established: Decisional Law and the Qualified Immunity Doctrine, 47

Ariz. L. Rev. 1031 (2005) (discussing how to determine what rights are "clearly established").

8

.

See Jerome H. Skolnick&James J. Fyfe, Abovethe Law: Police andthe Excessive
Use OF FORCE (1993); Barbara E. Armacost, Organizational Culture and Police Misconduct, 72

GEO. WASH. L. Rev. 453 (2004); Jeremy R. Lacks, Note, The Lone American Dictatorship: How
Court Doctrine andPolice Culture Limit Judicial Oversight ofthe Police Use ofDeadly Force, 64

N.Y.U. Ann. Surv. Am. L. 391 (2008). In particular, police violence has been seen to have a

disproportionate effect on racial minorities. E.g., Richard R.W. Brooks, Fear andFairness in the

City: Criminal Enforcement andPerceptions ofFairness in Minority Communities, 73 S. CAL. L.

REV. 1219 (2000); Andrea J. Ritchie & Joey L. Mogul, In the Shadows ofthe War on Terror:
Persistent Police Brutality and Abuse ofPeople ofColor in the United States, 1 DePaul J. FOR

Soc. Just. 175, 177 (2008) (noting the conclusions of the United Nations Committee regarding

police violence targeted at racial minorities); Alison L. Patton, Note, The Endless Cycle ofAbuse:

Why 42 U.S.C § 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L.J. 753 (1993).

9. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).



1 20 INDIANA LAW REVIEW [Vol. 43 : 1 1

7

limited defense based on a newly developed law, will provide ample protection

for the reasonably mistaken officer and will make compensation for the victim
possible.

In Part I, this Article explains how the excessive reasonableness problem
developed as Fourth Amendment doctrine and the qualified immunity doctrine
were independently created and modified. Part II discusses repeated judicial

attempts to avoid the difficulties presented by excessive reasonableness. Part III
explores a modification of qualified immunity in the excessive force context

limited to violations of newly developed legal standards.

I. Qualified Immunity and Excessive Force Create
Excessive Reasonableness

A. Excessive Force

In Graham v. Connor™ the Supreme Court resolved any doubt about the
appropriate standard to be applied when assessing the constitutionality ofthe use
offorce during a stop or arrest. Determining that the requirements ofthe Fourth

Amendment were the proper focus of an analysis of the use of excessive force
during an arrest or stop, the Court announced that an "objective reasonableness"

standard would apply. 11 The application of the "objective reasonableness"
standard requires "a careful balancing of 'the nature and quality of the intrusion

on the individual's Fourth Amendment interests' against the countervailing
governmental interests at stake."

12
Factors such as the crime's severity, the

immediacy of the threat to police or others, and whether the suspect is resisting

arrest or attempting to flee, must be considered when analyzing reasonableness. 13

The test is an objective one that must make "allowance for the fact that police
officers are often forced to make split-secondjudgments—in circumstances that
are tense, uncertain, and rapidly evolving."

14 The Court emphasized that
reasonableness "must be judged from the perspective of a reasonable officer on

10. 490 U.S. 386 (1989). Prior to Graham, many courts applied a substantive due process

standard to analyze excessive force cases. Id. at 392-93. The Court rejected the use of the same

standard for all types of excessive force and instead mandated that a more specific constitutional

standard, such as the Fourth or Eighth Amendments, be employed in analyzing allegations of

excessive force. Id. at 394. Graham built on the Court's reasoning in Tennessee v. Garner, Al\

U.S. 1, 7-22 (1985), in which the Court determined that the test for whether deadly force could be

used in a seizure was based on an "objective reasonableness" standard. Graham, 490 U.S. at 392.

1 1

.

Graham, 490 U.S. at 388 ("This case requires us to decide what constitutional standard

governs a free citizen's claim that law enforcement officials used excessive force in the course of

making an arrest, investigatory stop, or other 'seizure' ofhis person. We hold that such claims are
properly analyzed under the Fourth Amendment's 'objective reasonableness' standard, rather that

under a substantive due process standard.").

12. Id. at 396 (quoting Garner, 471 U.S. at 8).

13. Id.

14. Id. at 397.



2009] EXCESSIVE REASONABLENESS 121

the scene, rather than with the 20/20 vision of hindsight."
15

In the thousands ofexcessive force cases that have followed Graham, courts

have analyzed the question of what is objectively reasonable.
16 Most recently,

in Scott v. Harris,
11
the Court emphasized that in determining whether the Fourth

Amendment was violated there is no avoiding the necessity of "slosh[ing] our
way through the factbound morass of 'reasonableness.'" 18 The cases analyzing
the excessive force standard have arisen in a variety of factual scenarios,

including: termination of high speed chases,
19

shootings,
20

use of restraints,
21

beatings,
22
and use ofpolice dogs.

23
Actions based on excessive force are some

of the most common civil rights claims and consume a large portion of federal
courts' § 1983 docket.

24

15. Mat 396.
16. See, e.g., Chew v. Gates, 27 F.3d 1432, 1439 (9th Cir. 1994); Quezada v. County of

Bernalillo, 944 F.2d 710, 716-17 (10th Cir. 1991). The question of whether the amount of force

used was "objectively reasonable" is often submitted to the jury. Id. at 715 (citing Calamia v. City

ofNew York, 879 F.2d 1025, 1035 (2d Cir. 1989).
17. 550 U.S. 372 (2007).

18. Mat 383.
19. Id. at 374.

20. E.g., McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1238 (11th Cir. 2003);

Hemphill v. Schott, 141 F.3d 412, 414 (2d Cir. 1998).

21. E.g., Muehler v. Mena, 544 U.S. 93, 95 (2005); Garrett v. Athens-Clarke County, 378

F.3d 1274, 1279 (11th Cir. 2004).

22. E.g., Reese v. Herbert, 527 F.3d 1253, 1257-61 (1 1th Cir. 2008); Phelps v. Coy, 286 F.3d

295, 297 (6th Cir. 2002).

23. E.g., Jarrett v. Town of Yarmouth, 331 F.3d 140 (1st Cir. 2003); Vathekan v. Prince

George's County, 154 F.3d 173, 175 (4th Cir. 1998).

24. Richard P. Shafer, Annotation, When Does Police Officer 's Use ofForce During Arrest

Become So Excessive as to Constitute Violation ofConstitutional Rights, Imposing Liability Under

Federal Civil rights Act of1871, 60 A.L.R. Fed. 204 § 2(a) ( 1 982); 2 1 Am. JUR. 3d ProofofFacts

685 (2009). Some argue that Fourth Amendment doctrine on the issue ofexcessive force is deeply

flawed and results in unprincipled and indeterminate results. See Rachel A. Harmon, When Is

Police Violence Justified?, 102 Nw. U. L. Rev. 1 1 19, 1 132-33 (2008). Harmon maintains that the

Court has provided little guidance on how to determine how much police force is "reasonable"

under the Fourth Amendment. Id. Having received little guidance, the lower courts "have recited

Graham as if it were a mantra and then gone on to try to make sense ofthe facts ofindividual cases

using intuitions about what is reasonable for officers to do." Id. at 1132. For example, some

Circuits have required that a plaintiff suffer an actual physical injury in order to successfully bring

an excessive force claim. Bryan N. Georgiady, Note, An Excessively Painful Encounter: The

Reasonableness ofPain andDe Minimis Injuriesfor Fourth Amendment Excessive Force Claims,

59 Syracuse L. Rev. 123, 137-38 (2008); see also Kathryn R. Urbonya, Dangerous

Misperceptions: Protecting Police Officers, Society, andthe FourthAmendment Right to Personal

Security, in SWORD& SHIELD REVISITED: APRACTICALAPPROACHTO SECTION 1983, at 259 (Mary
Massaron Ross ed., 1998).



1 22 INDIANA LAW REVIEW [Vol. 43 : 1 1

7

In a typical case, such as Jennings v. Pare,
25

the plaintiff alleges that the

force used in restraining him during an arrest was excessive. In Jennings, state
police officers entered a smoke shop run by the Narragansett Indian Tribe and
were attempting to search it when the plaintiff, one ofthe employees ofthe shop,
objected to the search and began struggling with the police as they tried to

handcuff him.
26

In the course of the struggle one of the officers, the defendant

in the action, grabbed the plaintiffs ankle and twisted it—the plaintiffs ankle
was broken in the process.

27 The plaintiff claimed that the defendant kept
twisting even after the plaintiff stopped resisting.

28 The defendant claimed that
he was properly executing an "ankle turn control technique" to restrain the
plaintiff.

29

In analyzing whether the defendant's behavior violated the Fourth

Amendment, the court reviewed, in detail, all the conflicting factual evidence
about the actions ofthe plaintiffand the actions ofthe police before, during, and

after the struggle.
30

Focusing on the conflicting testimony regarding whether the

plaintiffkept resisting after the "ankle turn control technique" was administered,
the court concluded that "[the plaintiff] failed to present any evidence that, under

the circumstances confronting [the defendant], 'no objectively reasonable officer'

would have applied the ankle turn control technique in the manner that [the

defendant] did."
31

In determining that there had been no Fourth Amendment
violation, the court emphasized that police officers must act "'in circumstances

that are tense, uncertain, and rapidly evolving,' and that their conduct 'must be

judged from the perspective of a reasonable officer on the scene.'"
32

Thus, in applying the Graham objective reasonableness standard, the benefit
of the doubt goes to the defendant police officer. If there is any way his actions
could have been believed to be a reasonable response to the situation, as

perceived by the officer at the time, the Fourth Amendment is not violated.

B. Qualified Immunity

Meanwhile, the Court was refining the standard for qualified immunity.
Qualified immunity was initially understood to be similar to the good faith

25. No. 03-572-T, 2005 WL 2043945, (D.R.I. Aug. 24, 2005), vacated sub nom., Jennings
v. Jones, 479 F.3d 1 10 (1st Cir. 2007).

26. Mat*1-2.
27. Id. at *2.

28. Id.

29. Id.

30. Id. at *6. Thejury found that the defendant's actions constituted excessive force but the

court determined that the issue should not have been submitted to the jury and granted a motion for

judgment as a matter oflaw for the defendant. Id. at * 1 , * 1 3- 1 4. That motion was later vacated by

the First Circuit Court of Appeals. Jennings v. Jones, 479 F.3d 1 10, 1 12 (1st Cir. 2007).

3 1

.

Jennings, 2005 WL 2043945 at *7.
32. Id. at *6 (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).



2009] EXCESSIVE REASONABLENESS 123

defense available under common law in 1871 when § 1983 was adopted.
33 The

common law immunity foreclosed liability when a government officer acted with
good faith and probable cause in making an arrest.

34 The Court was particularly
concerned with the unfairness of imposing liability on a government official

based on newly developed law: police officers should "not [be] charged with

predicting the future course of constitutional law."
35

In time, the qualified

immunity defense was expanded beyond law enforcement officials to cover
virtually any kind of government actor.

36
So long as the officer reasonably and

with good faith believed that he was acting within constitutional limits, immunity
would be granted.

Because the qualified immunity defense contained a subjective element—that
the officer acted in good faith—factual disputes with respect to the officer's state
ofmind could easily defeat a summaryjudgment motion on the issue ofqualified
immunity. Because few qualified immunity defenses could be resolved prior to
trial, government officials might well be involved in lengthy, but essentially

meritless, litigation. This concern led the Court in Harlow v. Fitzgerald?1 to
eliminate the subjective component of qualified immunity.38 The newly
articulated qualified immunity test provided that "government officials . . .

generally are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known."
39

The Court hoped that the elimination
of the subjective good faith portion of the standard would make it possible to
dismiss frivolous suits at the summary judgment stage.40 No longer would a
plaintiffbe able to prolong a civil rights suit by alleging that the defendant acted
in bad faith.

41 The objective qualified immunity standard was seen to represent

33. See Pierson v. Ray, 386 U.S. 547, 550-51 (1967).

34. Id. at 555. In Pierson, police officers arrested the plaintiffs under a statute that was later

held to be unconstitutional. Id. at 550. The Court reasoned that it would be unfair to hold the

police officers liable "for acting under a statute that [they] reasonably believed to be valid but that

was later held unconstitutional." Id. at 555.

35. Id. at 557.

36. See Wood v. Strickland, 420 U.S. 308, 322 (1975) (expanding qualified immunity to
cover school board officials); Scheuer v. Rhodes, 416 U.S. 232, 247-48 (1974) (expanding

qualified immunity to cover all executive branch officers). Some government officials, judges,

legislators, prosecutors, and the president, are entitled to absolute immunity. See Nixon v.

Fitzgerald, 457 U.S. 73 1 , 757 ( 1 982) (president entitled to absolute immunity); Imbler v. Pachtman,

424 U.S. 409, 430-31 (1976) (prosecutors protected by absolute immunity); Pierson v Ray, 386

U.S. 547, 553-54 (1967) (judges covered by absolute immunity); Tenney v. Brandhove, 341 U.S.

367, 379 (1951) (legislators absolutely immune).

37. 457 U.S. 800(1982).

38. Mat 816-18.
39. Id. at 817-18.

40. Id.

41. See id. In addition, defendants in civil rights suits have the right to an immediate

interlocutory appeal of a denial of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530



1 24 INDIANA LAW REVIEW [Vol. 43 : 1 1

7

the proper balance between conflicting interests: the interest in providing

compensation for, and deterring unconstitutional conduct against the need to

protect against frivolous lawsuits and to encourage vigorous enforcement ofthe

law.
42

Evaluation of a qualified immunity defense requires courts to determine

whether the acts alleged by the plaintiff constitute a violation of a federal right
and, if so, to determine whether that violation has been sufficiently established

so that a reasonable official would know his acts violate the law. For example,
inJennings, the excessive force case discussed earlier,

43
the court determined that

even if the police officer's actions had violated the Fourth Amendment, he was
nonetheless entitled to qualified immunity.

44 The court first determined that the
unlawfulness of using an "ankle turn control technique" in the circumstances

confronted by the officer, had not been clearly established by prior case law.
45

The court then determined that even if the law had been clearly established, the
defendant was still entitled to qualified immunity because any misapprehension
of the law or the factual circumstances he might have had would be reasonable
given the ambiguity of the situation with which he was confronted.46

As articulated by Harlow and as subsequently interpreted by the courts,
qualified immunity has provided a broad and generally successful defense to

most civil rights claims.
47 As the Court has explained, qualified immunity

ensures that only "the plainly incompetent or those who knowingly violate the
law" will be found liable under § 1983.

48
Qualified immunity has moved closer

to a system of absolute immunity for most defendants, resulting in a finding of

liability for only the most extreme and most shocking misuses ofpolice power.

C. Application ofthe Two Standards

Operating on two different fronts, the Court, by the late 1980s, had created

two almost identical objective reasonableness tests: One governed excessive
force under the Fourth Amendment and the other governed qualified immunity.
Difficulty arose, however, when these two standards were called into play at the

(1985).

42. See Diana Hassel, Living A Lie: The Cost ofQualified Immunity, 64 Mo. L. Rev. 123,

131 (1999).

43. See supra text accompanying notes 25-32.

44. Jennings v. Pare, No. 03-572-T, 2005 WL 2043945, at *13 (D.R.I. Aug. 24, 2005),
vacated sub nom. Jennings v. Jones, 479 F.3d 1 10 (1st Cir. 2007).

45. Id. at*10.

46. /</. at*ll.

47. See Sword and Shield: A Practical Approach to Section 1 983 Litigation 46-53
(Mary Massaron Ross & Edwin P. Voss, Jr. eds., 3rd ed. 2006). Claims involving prisoner rights
and actions against police officers appear to be particularly unlikely to succeed. Melissa L. Koehn,

The New American Caste System: The Supreme Court and Discrimination Among Civil Rights

Plaintiffs, 32 U. MlCH. J.L. REFORM 49, 103 (1998).

48. Malley v. Briggs, 475 U.S. 335, 341 (1986).



2009] EXCESSIVE REASONABLENESS 125

same time in considering the liability of a defendant in a civil rights action.
When these two standards are both operating, a court must first determine
whether a defendant's actions are objectively reasonable. Then, assuming that

the actions were not objectively reasonable, the court must determine whether it

was nonetheless objectively reasonable for the defendant to have believed his
actions were objectively reasonable. The application of this nonsensical series
ofquestions leads to skewed results. Most problematically the two doctrines lead
to two levels of protection for a defendant. Additionally, courts must jump
through convoluted analytical hoops that result in unclear and needlessly

complicated decisions.

The problem of having two reasonableness standards could come into play
in any Fourth Amendment claim, but the difficulty is most acute in an action
concerning excessive force. Although other Fourth Amendment questions, such
as the legality of searches or the legality of arrests, are also ultimately based on
reasonableness, the standards governing such actions are much more concrete
and specific than those governing excessive force.

49 The excessive force
standard, as articulated by Graham is just a generalized reasonableness
test—thus, the closest parallel to the qualified immunity doctrine.

Following the convergence of the qualified immunity doctrine and the

excessive force standards, the courts of appeals attempted to apply the odd
doctrinal regime. Although some courts attempted to comply with the message
from the Court in Anderson v. Creighton,

50
that the Fourth Amendment inquiry

was separate from the qualified immunity question even in an excessive force
case, others found such an application impossible.

51
For example, in Roy v. City

ofLewiston,
52

the First Circuit Court of Appeals grappled with the qualified

49. Concern with the convergence of reasonableness standards has arisen in Fourth

Amendment contexts other than excessive force. This aggregation of reasonableness was

commented on by Justice Stevens in his dissent in Anderson v. Creighton, where he criticized the

"two layers of insulation from liability" that result in the application of the qualified immunity

defense to a Fourth Amendment claim. 483 U.S. 635, 659 (1987) (Stevens, J., dissenting).

Anderson concerned the application of the qualified immunity defense to a Fourth Amendment

claim based on a warrantless search by the FBI. Id. at 637. Justice Stevens argued that the

underlying Fourth Amendment standard provided ample protection for the reasonably mistaken law

enforcement official and that by adding another reasonableness standard to the mix, "the Court

counts the law enforcement interest twice and the individual's . . . interest only once." Id. at 664

(Stevens, J., dissenting) (footnote omitted); see also Lisa R. Eskow & Kevin W. 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 (1998).

50. 483 U.S. 635(1987).

51. E.g., Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994) (finding no distinction between

qualified immunity inquiry and inquiry on the merits in excessive force case); Brown v. Glossip,

878 F.2d 871, 873 (5th Cir. 1989) (discerning "no principled distinction between availability of

qualified immunity" in unreasonable search case and qualified immunity in excessive force case).

52. 42F.3d691(lstCir. 1994).



1 26 INDIANA LAW REVIEW [Vol. 43 : 1 1

7

immunity defense in a case alleging excessive force in the course of an arrest.
53

Determining that the substantive liability issue and the qualified immunity issue

were the same, the court expressed doubt that, in an excessive force case, the

issue of the Fourth Amendment violation could have a different outcome from
the qualified immunity question.

54
In another attempt to work with the qualified

immunity doctrine, the Second Circuit Court of Appeals in Finnegan v.

Fountain,
55

separated the two different prongs of qualified immunity.56 The
aspect of the qualified immunity defense that precludes liability when the
conduct ofthe defendant does not violate clearly established rights was available
in an excessive force claim.

57
But the second prong of the qualified immunity

defense, which asks whether the defendant's belief that his actions were lawful

was objectively reasonable, would already have been answered in a
determination that the actions violated the Fourth Amendment.58 In the end, the
Tenth, Ninth, Seventh, Sixth, and D.C. Circuit Courts ofAppeals abandoned the

attempt to follow Anderson's guidance and held that the two questions—use of
excessive force and qualified immunity—merged into one inquiry.59

Academic commentators also questioned the workability or the necessity of
the simultaneous application of the qualified immunity and the excessive force

standards.
60

Kathryn Urbonya argued that the qualified immunity standard
defense is unnecessary in excessive force claims because the substantive

standards already includes the protection inherent in a reasonableness standard.
61

Urbonya and others maintained that once the Fourth Amendment issue is
resolved, the qualified immunity issue has also been resolved, and to treat the

53. Mat 693.
54. Id. at 695. "In theory, substantive liability and qualified immunity are two separate

questions and, indeed, may be subject to somewhat different procedural treatment. In police

misconduct cases, however, the Supreme Court has used the same 'objectively reasonable' standard

in describing both the constitutional test of liability, and the Court's own standard for qualified

immunity. It seems unlikely that this case would deserve a different outcome even ifthe qualified

immunity defense had not been raised." Id. (citations omitted).

55. 915F.2d817(2dCir. 1990).

56. Id. at 822-23.

57. Mat 823.
58. Id.

59. See, e.g., Katz v. United States, 194 F.3d 962, 968 (9th Cir. 1999), rev 'd sub nom.

Saucier v. Katz, 533 U.S. 194 (2001); Frazell v. Flanigan 102 F.3d 877, 886 (7th Cir. 1996); Scott

v. District of Columbia, 101 F.3d 748, 759 (D.C. Cir. 1996); Street v. Parham, 929 F.2d 537, 540

(10th Cir. 1991); Holt v. Artis, 843 F.2d 242, 245-46 (6th Cir. 1988).

60. E.g., Eskow & Cole, supra note 49, at 878-79; Kathryn R. Urbonya, Problematic
Standards ofReasonableness: Qualified Immunity in Section 1983 Actionsfor a Police Officer 's

Use ofExcessive Force, 62 TEMP. L. Rev. 61 (1989); Stephen Yagman, Excessive Force—What Is
It Goodfor? Absolutely Nothing, Juries are Supposed to Decide WhetherForce Is Excessive, and,

When They Do, There Is No QualifiedImmunity, 568 PRACT. L. INST. 735 (1997). But see Barbara

E. Armacost, Qualified Immunity: Ignorance Excused, 51 VAND. L. Rev. 583, 659 (1998).

6 1

.

Urbonya, supra note 60, at 1 08.



2009] EXCESSIVE REASONABLENESS 127

two separately would unfairly benefit the defendant.
62

The two standards also created difficulties in allocating resolution offactual
and of legal issues between the judge and the jury. Determining whether a

particular set of actions is reasonable under the Fourth Amendment will often
present factual questions that normally are submitted to a jury. In contrast,

qualified immunity is characterized as a legal question to be resolved by the
judge.

63
Because the two questions—Fourth Amendment and qualified

immunity—require resolution ofthe same reasonableness issues, courts struggled
to determine how to divide the task between thejudge and the jury.64 Some even
argued that once a jury finds that a defendant's acts were determined to be an

unreasonable use of force under the Fourth Amendment, it was a usurpation of
the jury's role for the judge to, in effect, undo that determination by concluding
that the actions were reasonable under the qualified immunity standard.

65

Application of the qualified immunity defense is less difficult when the
underlying constitutional standard is not one of objective reasonableness. For

example, in civil rights actions based on a violation ofa public employee's First

Amendment rights, the court first determines if the employee's actions were
protected by the First Amendment.

66
For public employee speech, the relevant

questions include whether the employee was speaking on a matter of public
concern, whether the employee was speaking as an employee or as a citizen, and
how disruptive the speech was to the workplace function.67 Ifthe court finds that
the facts alleged by the plaintiff support a finding of a violation of the First
Amendment, the court must then determine if the law on the issue was clearly
established, and whether a reasonable official would have been aware of that
constitutional right.

68 The last step ensures that the court does "not impose on
the official a duty to sort out conflicting decisions or to resolve subtle or open

issues."
69

For example, in Lindsey v. Orrick, the Eighth Circuit Court of Appeals

62. Urbonya, supra note 60, at 1 05-09; Armacost, supra note 60, at 661

.

63. Hunter v. Bryant, 502 U.S. 224, 228 (1991).

64. See Tatro v. Kervin, 41 F.3d 9, 15 (1st Cir. 1994); Finnegan v. Fountain, 915 F.2d 817,

82 1 (2d Cir. 1 990) (explaining that it was error to submit the issue ofqualified immunity to thejury

because the application of qualified immunity is for the court to decide); Hall v. Ochs, 817 F.2d

920, 924 (1st Cir. 1987) (explaining that the objective reasonableness assessment for qualified

immunity is for the judge to make, not the jury).

65. Yagman, supra note 60, at 737 ("In [excessive] force cases . . . juries decide iftoo much

force was used, and when they do, there is no qualified immunity defense. A finding ofexcessive
force makes a finding of qualified immunity factually and legally impossible, and a finding of

reasonable force renders the issue of qualified immunity moot.").

66. Lindsey v. City of Orrick, 491 F.3d 892, 897 (8th Cir. 2007).

67. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Charles v. Grief, 522 F.3d 508, 512

(5th Cir. 2008); Campbell v. Galloway, 483 F.3d 258, 266 (4th Cir. 2007) (citing Garcetti, 547

U.S. at 421); Lindsey, 491 F.3d at 897.

68. Campbell, 483 F.3d at 271-72.

69. Id. at 271 (citing to McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998)).



128 INDIANA LAW REVIEW [Vol. 43 : 1 1

7

affirmed a lower court's denial ofthe defendant's motion for summaryjudgment
because the facts alleged by the plaintiff established that her speech was
protected and that a reasonable official would have realized that firing her
because of the speech was unconstitutional.

70 The plaintiffs speech—raising
concerns about the city's compliance with open meetings law—was protected
because it was made as a citizen, not an employee, it was on a matter of public
concern, and there were insufficient allegations that the employee's speech was
disruptive to the workplace.

71
Having determined that the plaintiffs allegations

supported a violation ofher First Amendment rights, the court then addressed the
question whether "[the] right was clearly established such that a reasonable
official would have known [the firing] was unlawful."72 Only at this point was
the reasonableness ofthe defendant's behavior evaluated. The court in Lindsey
rejected the defendant's assertions of a reasonable mistake, finding that the law

in the area was too well established and the protected nature of the speech was
too obvious for the defendant's behavior in terminating the plaintiff to be

objectively reasonable.
73

Although the questions relating to First Amendment doctrine and the limits
ofthe constitutional protection ofpublic employee speech may be complex, the
doctrine does not include a cushion for reasonable mistakes made by a
government official. Any wiggle room for the official only comes into play when
the qualified immunity test is applied. The substantive First Amendment
standard does not allow for reasonable, even ifmistaken, actions. Only when the
qualified immunity defense is asserted does the wiggle room provided by
reasonableness come into play. By contrast, in an excessive force case, the court
must first determine whether the amount offorce used was reasonable given the
circumstances faced by the officer and then determine whether it was reasonable
for the officer to believe that the amount of force used was constitutional.

II. The Supreme Court's Flawed Solutions

As voices of discontent with the two standards grew in the lower courts and
among legal scholars, the Court attempted to quiet the waters with a firm
reiteration of basic principles.

A. Saucier v. Katz

In 200 1 , the problem presented by the two reasonableness standards made its
way to the U.S. Supreme Court in Saucier v. Katz.14 This case grew out of the
arrest of a demonstrator at a speech given by Vice President Al Gore at a U.S.
Army base in California.75 The plaintiff, an animal rights activist, began to

70. Lindsey, 491 F.3d at 902.

71. Id at 901.

72. Id

73. Mat 901-02.
74. 533 U.S. 194(2001).

75. Katz v. United States, 1 94 F.3d 962, 965 (9th Cir. 1 999), rev 'dsub nom. Saucier v. Katz,



2009] EXCESSIVE REASONABLENESS 129

unfurl a banner during Gore's speech concerning the treatment ofanimals.
76 He

was forcibly removed and placed in a van by military police officers.
77 He was

detained briefly and then released.
78 The plaintiff alleged, among other things,

that the force used during his seizure was excessive.
79

Because of factual

disputes concerning both the amount of force used and whether the plaintiff

resisted the actions ofthe police, the district court denied the defendant's motion

for summary judgment on the excessive force claim.
80

The court stated that
because there was a factual dispute on the substance of the Fourth Amendment
claim, there could be no resolution of the qualified immunity issue: "the

qualified immunity inquiry is the same as the inquiry on the merits in an
excessive force claim."

81

The Ninth Circuit Court ofAppeals, consistent with many circuits, held that
"'the inquiry as to whether officers are entitled to qualified immunity for the use

ofexcessive force is the same as the inquiry on the merits ofthe excessive force

claim.'"
82

Therefore a factual dispute with respect to the merits ofan excessive

force claim would preclude the resolution ofsummaryjudgment ofthe qualified
immunity defense. The court distinguished those situations where the qualified
immunity defense was based not on the objective reasonableness ofthe officer's
belief in the lawfulness of his action, but on the fact that the law was not clearly
established.

83
Factual disputes would not prevent a court from granting summary

judgment for the defendant if the actions alleged by the plaintiff did not violate

clearly established law.
84

In support ofthe court ofappeals 's decision, briefs submitted to the Supreme
Court argued that the qualified immunity issue and the excessive force issue

merge into a single analytical question and that the Graham standard already
gave an officer substantial latitude in the amount of force that could be used.

85

The reconsideration ofthe same factor twice would give the defendant an unfair
advantage in excessive force cases and would, in effect, increase the plaintiffs

burden ofproof.
86

At the oral argument the respondents urged that the Graham

533 U.S. 194(2001).

76. Id.

77. Id.

78. Mat 965-66.
79. Id. at 966.

80. Id.

81. Id.

82. Id. at 968 (citing Alexander v. County of Los Angeles, 64 F.3d 1315, 1322 (9th Cir.

1995)).

83. Id. at 970.

84. Id.

85. See, e.g., Brief for Amicus Curiae Ass'n of the Bar of the City of N.Y. in Support of

Respondents at 13, Saucier v. Katz, 533 U.S. 194 (2001) (No. 99-1977), 2001 WL 173525; Brief
Amicus Curiae ofthe ACLU et al. at 8, in Support of Respondents, Saucier v. Katz, 533 U.S. 194
(2001) (No. 99-1977), 2001 WL 173522.

86. BriefAmicus Curiae ofthe ACLU et al., in Support ofRespondents at 1 8, supra note 85.



1 30 INDIANA LAW REVIEW [Vol. 43 : 1 1

7

standard provides adequate protection for reasonable mistakes made by
government officials and that it "gives a buffer for the trial courtjudge to get rid

of an insubstantial case."
87

The Supreme Court reversed the court of appeals in Saucier and held that,
contrary to what many of the circuits had determined, "the ruling on qualified
immunity requires an analysis not susceptible offusion with the question whether

unreasonable force was used in making the arrest."88 The Court explained that
the standard articulated in Graham with respect to reasonableness is different
from the reasonableness inquiry required by qualified immunity.89 Specifically,
the Fourth Amendment asks the question whether the officer reasonably believed
that amount of force used was necessary.90 Even if that reasonable assessment
was a mistake, the officer did not violate the Fourth Amendment.91 The qualified
immunity defense asks the further question whether the officer made a mistake
with respect to "the legal constraints on particular police conduct."

92
Qualified

immunity is appropriate when the officer correctly perceives "all ofthe relevant
facts but [has] a mistaken understanding as to whether a particular amount of
force is legal in those circumstances."

93

In applying these standards, the Court instructed the lower courts to first

determine if the Fourth Amendment right against excessive force was violated
and then separately determine whether the defendant is entitled to qualified

immunity.
94 On a summary judgment motion, the court should determine if the

facts viewed most favorably to the plaintiff show that the Graham standard was
violated.

95
If there is a constitutional violation, the court should then determine

if it has been clearly established that the amount of force used in these

circumstances is excessive.
96

Qualified immunity will protect the defendant

87. Transcript of Oral Argument at 28, Saucier, 533 U.S. 194 (No. 99-1977). Arguing on

behalf ofthe petitioner, the Deputy Solicitor General maintained that the Fourth Amendment and

qualified immunity standards should be kept separate. Id. at 4. The Deputy Solicitor General

explained the difference between the two standards as the "[Fourth Amendment] looks at the force

used and asks whether that force was reasonable," whereas the qualified immunity test "takes a

broader look at what the preexisting law was and asks whether the officer was on notice that his

conduct . . . violated clearly-established law." Id. at 4, 13.

88. Saucier v. Katz, 533 U.S. 194, 197 (2001). Justice Kennedy wrote the opinion of the

Court and was joined by ChiefJustice Rehnquist, and Justices O'Connor, Scalia, and Thomas and

in part by Justice Souter. Justices Souter and Ginsburg wrote a concurring opinion in which

Justices Stevens and Breyer joined and Justice Souter filed an opinion concurring in part and

dissenting in part. Id. at 196.

89. Mat 203-04.
90. Id. at 201-02.

91. Mat 205.
92. Id.

93. Id.

94. Mat 202.
95. Mat 201-02.
96. Mat 202.



2009] EXCESSIVE REASONABLENESS 1 3

1

when his actions fall on the '"hazy border between excessive and acceptable
force.

'"97 On a concrete level, the questions for the court are whether the amount
of force used is reasonable given the Graham factors: severity of the crime,
whether the suspect posed an immediate threat, and whether the suspect was
actively resisting arrest.

98
That assessment must be made with "careful attention

to the facts and circumstances ofeach particular case."
99 Assuming the court can

resolve that issue, it must then ask if it was reasonable for the defendant to
believe that his actions did not violate the standard articulated in Graham and its
progeny. If there is a controlling case exactly on point, qualified immunity

should be denied. If, as is more likely, the particular factual situation presented

by the case has not been previously litigated, the court must ask whether there is

specific enough notice from Graham and other case law to put the defendant on
notice that his actions were unconstitutional.

100

A separate analysis of the Fourth Amendment violation and qualified
immunity also served the purpose of clarifying constitutional standards. The
resolution of the constitutional standard may well become the basis for a
determination in a future case that the law is clearly established.

101 The Court's
belief that a separate analysis of the constitutional claim would enhance the
development ofthe law served as one ofthe rationales for the Saucier holding.

102

The flaw in the Court's instructions in Saucier is that the second
reasonableness inquiry required by Saucier—given the state ofthe law, whether
it was reasonable for a defendant to believe the amount of force he used was
lawful—is hard to distinguish from the first reasonableness inquiry under
Graham. For both questions, the answer turns on the threat as perceived by the
officer, including the dangerousness of the plaintiff to the officer and to the

public. The same factors that determine whether a particular use of force is
reasonable under Graham will also determine whether the actions could
reasonably be considered unlawful. The mere assertion that the two reasonable
standards are different does not make them so.

In her concurring opinion, Justice Ginsburg, argued that the methodology

laid out by the Court to resolve qualified immunity in an excessive force case

was too complicated. 103 Justice Ginsburg concluded that, "[t]he two-part test
today's decision imposes holds large potential to confuse."

104
In the end, the

analysis ofwhether there has been excessive force and whether the defendant is

entitled to qualified immunity is the same: "Taking into account the particular

circumstances confronting the defendant officer, could a reasonable officer,

97. Id. at 206 (citing Priester v. Riviera Beach, 208 F.3d 919, 926-27 (1 1th Cir. 2000)).

98. Id. at 205 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

99. Graham, 490 U.S. at 396.

100. Saucier, 533 U.S. at 202.

101. Mat 201.
102. See id.

103. Id. at 210 (Ginsburg, J., concurring).

104. Id.



1 32 INDIANA LAW REVIEW [Vol. 43 : 1 1

7

identically situated, have believed the force employed was lawful?"105 Justice
Ginsburg rejected the inherent duplication in the Court's two part inquiry
regarding excessive force and qualified immunity, and argued that "[o]nce it has

been determined that an officer violated the Fourth Amendment by using
'objectively unreasonable' force as that term is explained in Graham v. Connor

\

there is simply no work for a qualified immunity inquiry to do."106

Saucier rejected the reasoning of several courts of appeals and many
commentators by insisting that the qualified immunity defense would be handled
in excessive force cases just as it was in other civil rights claims. 107 There were
likely several forces at work causing the Court to insist on this almost certainly
unworkable regime. Among those motivations may have been a desire for
consistency and an adherence to Harlow; a reluctance to diminish the protection

from liability in excessive force cases; a desire to keep qualified immunity firmly

in the hands of the judge not a jury; and a desire to encourage resolution of

qualified immunity issues in the early stages of litigation.

Harlow set forth a general "objective reasonableness" standard for qualified
immunity to be applied regardless ofthe underlying constitutional claim.

108 To
allow a variation of that standard in excessive force cases might start to unravel

other, often criticized, aspects of the qualified immunity doctrine.
109 The

prospect ofevaluating the appropriateness ofthe qualified immunity standard in

conjunction with doctrine relating to a wide range of constitutional rights may
have seemed to the Court to be a step toward an even more complicated civil

rights regime.

The Saucier decision also reflects the increasingly protective nature of
qualified immunity and the Court's transformation ofthe defense into a kind of

absolute immunity. Since its early adoption as a common law "good faith and
probable cause" defense, qualified immunity has grown steadily more favorable
for defendants: it was transformed into an objective test to protect defendants
from lengthy litigation; resolution of qualified immunity prior to allowing the

plaintiff any significant discovery is favored; and interlocutory appeals are

allowed so that a defendant need not wait until the end of trial to appeal a denial

of qualified immunity.
110

It has come to be viewed not merely as a defense
against liability, but also an "immunity from suit" similar to absolute

immunity.
1 1

1

Protection ofgovernment agents from civil rights claims is seen as

105. Id

106. Mat 216-17.
1 07. See supra notes 47-64 and accompanying text.

108. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).

109. See, e.g., Armacost, supra note 60, at 584-85 (discussing inconsistency ofemphasis on

individual fault inherent in qualified immunity defense and reality ofindemnification); Chen, supra

note 7, at 229-30 (arguing that qualified immunity doctrine is inconsistent in its insistence on early

termination ofsuits while failing to acknowledge the critical role fact finding must play in resolving

an assertion of a qualified immunity defense).

1 1 0. See Chen, supra note 7, at 233-4 1

.

111. Mitchell v. Forsyth, 472 U.S. 51 1, 526 (1985).



2009] EXCESSIVE REASONABLENESS 133

particularly appropriate when the accusations stem from a violent confrontation
between a law enforcement official and an apparent law breaker.

112

The reluctance to collapse the excessive force and qualified immunity issues
also stems from a desire to keep the immunity question out of the hands of the

jury.
113

Although the substantive issue of whether the Fourth Amendment was
violated may be appropriate for a jury, in the Court's view, the question of
whether a defendant is entitled to qualified immunity is not.

114 By insisting that
the Fourth Amendment analysis be kept separate from the qualified immunity
analysis, the Saucier rule ensures that the role of the jury in the resolution of

qualified immunity be kept to a minimum. The Rehnquist Court's qualified
immunity doctrine may also reflect a more general distrust ofjuries and hostility
to the trial process itself.

115 Andrew Siegel has concluded that the Court's
approach to qualified immunity is part of a larger attempt to limit litigation,

116

that is to remove the resolution of civil disputes from trial courts by limiting the

suits that can be brought,
117

limiting the damages that can be awarded,
118

and by
requiring claims to be resolved through arbitration or other private dispute

resolution mechanisms.
119

Qualified immunity doctrine illustrates this hostility

to litigation by broadly eliminating liability for constitutional wrongs. At

bottom, Siegel believes that the Court in recent years has exhibited "doubt in the

efficacy of a lawsuit as a mechanism for resolving the problem at hand, coupled
perhaps with a disproportionate animosity towards those who believe
otherwise."

120

Regardless ofthe forces that led to the decision, following Saucier, the courts

of appeals dutifully attempted to apply the two-part standard in excessive force

cases.
121

Attempting to separate the excessive force analysis from the qualified

immunity analysis, however, proved difficult.
122

In many cases, of course, the

112. Koehn, supra note 47, at 5 1 . Koehn maintains that suits against police officers are among

the least likely to result in successful outcomes for plaintiffs. Id. at 50-5 1 ; see Hassel, supra note

42, at 146.

113. Chen, supra note 7, at 262-63.

114. Karen Blum, QualifiedImmunity in the Fourth Amendment: A Practical Application of
§1983 As It Applies to Fourth Amendment Excessive Force Cases, 2 1 TOURO L. REV. 57 1 , 594-95

(2005) (explaining that while the issue ofwhether there has been excessive force under the Fourth

Amendment should be decided by the jury, the question ofqualified immunity must be decided by

the court. Ifthe two issues are 'intertwined' with unresolved factual issues, special interrogatories

should be submitted to the jury.).

115. Andrew M. Siegel, The Court Against the Courts: Hostility to Litigation as an

Organizing Theme in the Rehnquist Court 's Jurisprudence, 84 TEX. L. Rev. 1097, 1 130-32 (2006).

116. Mat 1132.
117. Mat 1133-34.
118. Mat 1136-37.
119. Mat 1140-41.
120. Mat 1115.
121. See infra notes 1 22-23

.

122. Interestingly, while Saucier has led to more courts delineating the contours of



1 34 INDIANA LAW REVIEW [Vol. 43:117

courts found that there was no violation of the Fourth Amendment and thus
determined that the qualified immunity issue need not be reached.

123

Frequently, however, courts painstakingly concluded that a Fourth

Amendment violation had occurred and that, almost inevitably, the defendant was
not entitled to qualified immunity. For example, in Jennings v. Jones™ the First
Circuit Court of Appeals set forth the inquiry required by Saucier.

(1) whether the claimant has alleged the deprivation of an actual

constitutional right; (2) whether the right was clearly established at the
time ofthe alleged action or inaction; and (3) ifboth these questions are

answered in the affirmative, whether an objectively reasonable official

would have believed that the action taken violated that clearly
established constitutional right.

125

Having determined that a violation of a clearly established right occurred, the

court then asked the last question—whether the objectively reasonably officer
would have realized he was violating a constitutional right and admits candidly,
"[a]t first glance, this inquiry appears indistinguishable from that in the first

prong."
126

Struggling to find a distinction, the court concluded that, "the key

distinction is that prong one deals with whether the officer's conduct was
objectively unreasonable, whereas prong three deals with whether an objectively

constitutional rights, those delineations have resulted in a contraction ofrights, that is, more losses

for plaintiffs. See Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical

Analysis, 36 Pepp. L. Rev. 667, 688-89 (2009) (arguing that once the court determines that

qualified immunity is appropriate, it is reluctant to at the same time determine that a right has been

violated). But cf. Paul W. Hughes, Not a FailedExperiment: Wilson-Saucier Sequencing and the

Articulation of Constitutional Rights, 80 U. COLO. L. REV. 401 (2009) (asserting that Saucier

sequencing results in articulation of constitutional rights).

123. See e.g., McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1246 (1 1th Cir. 2003);

Ewolski v. City of Brunswick, 287 F.3d 492, 507 (6th Cir. 2002).

124. 499 F.3d 2 (1st Cir. 2007). Jennings grew out of a highly publicized raid by state

authorities of a smoke shop run by the Narragansett Indian Tribe in Rhode Island. Id. at 3-4.

Jennings was arrested during that raid and claimed that excessive force, resulting in a broken ankle,

was used to restrain him. Id. at 5. Jennings sought damages against the police officer for battery

under state law and damages for excessive force under § 1 983. Id. After thejury awarded Jennings

$301,000 in damages, the trial judge granted the police officer's post-verdict motion forjudgment

as a matter oflaw, stating that there was no evidence ofa constitutional violation and even ifthere

was, the defendant was entitled to qualified immunity. Id. at 6-7. The First Circuit, after re-

hearing, reversed the trial judge and held that the plaintiffs Fourth Amendment rights were

violated, that the right to be free from excessive force was clearly established, and that a reasonable

police officer would have known his actions were a violation. Id. at 20-2 1 . At the re-trial, the jury

ruled in favor of the defendant police officer, determining that there was no Fourth Amendment

violation because the officer acted reasonably. Jennings v. Jones, C.A. 03-572ML (D.R.I. July 29,

2008).

125. Jennings, 499 F.3d at 10 (citations omitted).

126. Mat 18.



2009] EXCESSIVE REASONABLENESS 135

reasonable officer would have believed the conduct was unreasonable."
127 The

difference between these two questions is difficult to grasp as both questions turn

on the reasonableness of the defendant's understanding of the situation at the

time the force was used and an assessment ofthe threat presented by the plaintiff.
It is unclear how if the plaintiffs conduct was unreasonable, based on the facts
known to him at the time, he nonetheless could have believed that his conduct
was reasonable.

As the court in Jennings concedes, the third prong of the Saucier analysis
"seems nonsensical at first blush."

128
However, soldiering on, the court gamely

continues through the analysis and determines that the defendant violated the

Fourth Amendment and is, not surprisingly given the similarity ofthe analysis,
not entitled to qualified immunity.

129 One approach, then, post-Saucier, is for a
court to focus its analysis of the Fourth Amendment issue and determine that
excessive force was used, then rather cursorily deny qualified immunity.

130

The cases in which a violation ofthe Fourth Amendment has been found and
qualified immunity is granted to the defendants are even more analytically
disingenuous. The courts either conduct only a brief analysis of whether a
Fourth Amendment violation has occurred, and assuming it has, turn to the
qualified immunity question,

131
or grant qualified immunity because the case law

establishing the Fourth Amendment violation was unclear at the time the
government official acted,

132
never reaching the second reasonableness issue.

The difficulty presented by the three part test mandated by Saucier is avoided by
breezing past the Fourth Amendment analysis or by truncating the qualified
immunity analysis to the question ofwhat law is clearly established. By focusing
merely on the first or second prong of the Saucier test, these courts avoid the

difficulty of grappling with all three inquiries.

Even the Supreme Court had trouble following the regime it set forth in
Saucier. In Brosseau v. Hagen,

m
the Court addressed the question of whether

a police officer who shot a fleeing suspect violated the Fourth Amendment and
whether he was entitled to qualified immunity. 134 Rather than addressing the
Fourth Amendment violation, the Court merely adopted the court of appeals
conclusion that there was a constitutional violation: "We express no view as to
the correctness ofthe Court of Appeals' decision on the constitutional question

127. Id

128. Id

129. Id at 20.

130. See, e.g., Cortez v. McCauley, 478 F.3d 1 108, 1 128 (10th Cir. 2007); Smoak v. Hall, 460

F.3d 768, 783 (6th Cir. 2006); Clem v. Corbeau, 284 F.3d 543, 550 (4th Cir. 2002).

131. See, e.g., Humphrey v. Mabry, 482 F.3d 840, 846-47 (6th Cir. 2007); Parks v. Pomeroy,

387 F.3d 949, 957-58 (8th Cir. 2004); Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d

Cir. 2004).

132. See, e.g. , Waterman v. Batton, 393 F.3d 47 1 , 483 (4th Cir. 2005); Smith v. Wampler, 1 08

F. App'x 560, 566 (10th Cir. 2004); Ross v. City of Ontario, 66 F. App'x 93, 96 (9th Cir. 2003).

133. 543 U.S. 194(2004).

134. Mat 194-95.



1 36 INDIANA LAW REVIEW [Vol. 43 : 1 1

7

itself."
135

Instead, the Court focused on the qualified immunity analysis and
determined that the lower court was incorrect in denying the defense. 136 Indeed,
Justice Breyer in his concurrence suggested that the requirement ofconsidering

the constitutional issue separately from the qualified immunity issue made little
sense.

137
In Scott v. Harris,

u%
the Court was faced with the question ofwhether

a police pursuit that resulted in a collision that severely injured a fleeing motorist

violated the Fourth Amendment and, if so, whether the defendants' were
nonetheless entitled to qualified immunity.

139 Again avoiding a separate analysis

ofthe Fourth Amendment excessive force issue and the qualified immunity issue,
the Court concluded, based largely on a videotape ofthe police chase in question,

that the Fourth Amendment had not been violated. 140

Just as pressure built up prior to Saucier for the Court to provide additional

guidance for the thorny problems created by qualified immunity and excessive
force, again in the years post-Saucier the Court was faced with considerable
discontent with the regime it had mandated. As illustrated above, lower courts
found ways to avoid the strictures of the three prong test. Commentators also
began to question the wisdom of Saucier. Most of the criticism of Saucier
centered on the "order-of-battle" aspect of the qualified immunity test.

141
That

is, that the court must first determine that a constitutional violation has been

alleged and the only secondly analyze whether the defendant is entitled to

qualified immunity. Justice Breyer criticized this aspect of the Saucier rule

lamenting that the current rule "rigidly requires courts unnecessarily to decide

difficult constitutional questions when there is available an easier basis for the
decision (e.g.

,
qualified immunity) that will satisfactorily resolve the case before

the court."
142

Others argued that the benefit offorcing courts to clearly articulate

135. Id. at 198. Even though the Court did not follow the two-step process outlined in

Saucier, it reaffirmed its instructions that the constitutional issue must be addressed separately from

the qualified immunity issue. Id. at 198 n.3.

1 36. Id. at 20 1 (finding the defendant's actions "fell in the 'hazy border between excessive and

acceptable force'" (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001))).

137. Id. (Breyer, J., concurring) ("I am concerned that the current rule rigidly requires courts

unnecessarily to decide difficult constitutional questions when there is available an easier basis for

the decision (e.g., qualified immunity) that will satisfactorily resolve the case before the court.").

138. 550 U.S. 372 (2007).

139. Id. at 375-76.

140. Id. at 384. Many commentators have critiqued the Court's unusual step in acting as the

fact finder based solely on the evidence presented by the videotape. E.g., Erwin Chermerinsky, A

Troubling Take on Excessive Force Claims, 43 TRIAL 74 (2007); George M. Dery, III, TheNeedless

"Slosh " Through the "Morass ofReasonableness ": The Supreme Court 's Usurpation ofFact

Finding Powers in Assessing Reasonable Force in Scott v. Harris, 1 8 GEO. MASON U. Civ. RTS.

L.J. 417 (2008); Dan M. Kahan et al., Whose Eyes Are You Going to Believe? Scott v. Harris and

the Perils ofCognitive Illiberalism, 122 HARV. L. Rev. 837 (2009).

141

.

E.g., Michael L. Wells, The "Order ofBattle " in Constitutional Litigation, 60 SMU L.
Rev. 1539(2007).

142. Brosseau, 543 U.S. at 201 (Breyer, J., concurring).



2009] EXCESSIVE REASONABLENESS 137

constitutional standards outweighed the disadvantages of the regime.
143

Although the critiques were framed in terms of the "order-of-battle"

requirement, the problem was, of course, exacerbated, at least in the excessive

force context, by the difficulty in untangling the merits ofthe Fourth Amendment
claim from the qualified immunity defense. It especially made no sense to
require a court to separately analyze the constitutional claim and qualified

immunity when the two questions, were, in effect, the same.
In 2009, several decades after the standards developed in Graham and

Harlow, the Court again attempted to bring order and coherence to an inherently

unworkable doctrine. Apparently bowing to the pressures from both within and
without, the Court has again revised the qualified immunity doctrine.

B. Pearson v. Callahan

In an unusual move, the Supreme Court, on its own, in Pearson v. Callahan,
sought review of the question of whether Saucier *s approach to qualified

immunity should be overruled.
144

The Pearson case involved a denial by the
Tenth Circuit Court of Appeals of qualified immunity for a warrantless search

ofthe plaintiffs home.
145 The Supreme Court granted certiorari on the questions

ofwhether the defendants' search ofthe home violated the Fourth Amendment,
whether the defendants were entitled to qualified immunity, and added the

question of whether Saucier should be overruled.
146

The police officers as petitioners argued that Saucier^ mandate that the
constitutional issue be resolved first, before a court moves to the question of
qualified immunity, either be entirely overruled or modified.

147
The petitioner

143. Wells, supra note 141, at 1554.

144. Pearson v. Callahan, 128 S. Ct. 1702 (2008) ("In addition to the questions presented by

the petition, the parties are directed to briefand argue the following question: 'Whether the Court's

decision in Saucier v. Katz should be overruled?"' (citation omitted)). Numerous critiques of the

workability of the Saucier two-step mandate preceded the Court's unusual step. See, e.g., The

Supreme Court, 2006 Term—Leading Cases, 121 HARV. L. Rev. 214 (2007); Wells, supra note
141, at 1539-43 (defending the Saucier rule, while noting numerous criticisms of the doctrine).

145. Callahan v.Millard County, 494 F.3d 891, 893-94 (10th Cir. 2007), rev'd, 129S.Ct. 808

(2009). The issue in Callahan was whether police entry into the plaintiffs home without a warrant

violated his Fourth Amendment rights, given that there were no exigent circumstances. Id The

defendant argued that consent to enter was given to his confidential informant and so it was

reasonable for the defendant to enter. Id.

1 46. Pearson v. Callahan, 1 29 S. Ct. 808, 8 1 3 (2009). Sam Kamin has taken the position that

Saucier should not be overruled and that to allow courts to reach the qualified immunity issue,

without first determining whether the constitution has been violated will be contrary Article Ill's

ban on advisory opinions. Sam Kamin, An Article III Defense ofMerits-First Decisionmaking in

Civil Rights Litigation: The Continued Viability o/Saucier v. Katz, 16 GEO. MASON L. REV. 53,
55-57 (2008).

147. Brieffor Petitioner at 55, Pearson v. Callahan, 129 S. Ct. 808 (2009) (No. 07-75 1 ), 2008

WL 2367229; see Brief for the United States as Amicus Curiae Supporting Petitioners at 23,



138 INDIANA LAW REVIEW [Vol. 43:1 17

argued that the Saucier "order of battle" rule should be abandoned in Fourth

Amendment cases, or at least in Fourth Amendment cases involving the
unconstitutional seizure of evidence.

148 The development of constitutional
standards, one goal of Saucier" s requirement that the constitutional issue be

addressed before qualified immunity, is not necessary in Fourth Amendment
cases because the constitutional issues are frequently litigated in the course of

criminal prosecutions.
149

Accordingly, the petitioners argued, the court should

be able to address the qualified immunity issue without first resolving whether

a Fourth Amendment violation has occurred. 150

Similarly, the United States as amicus curiae argued that the Saucier "two-

step approach" should not be mandatory.
151

Although there may sometimes be
benefits to resolving the constitutional question before reaching qualified

immunity, the United States suggested that discretion should be left with the

lower courts with respect to the order ofresolving the issues.
1 52

Significantly, the

United States identified one ofthe benefits of resolving the constitutional issue

first as the defendant getting the benefit ofthe double reasonableness inherent in

the Fourth Amendment and qualified immunity standards.

'

53
Ifa court avoids the

Fourth Amendment issue and turns only to qualified immunity the "risk of
conflating [the two standards] . . . would be exacerbated."

154 Even though
"courts have had difficulties" with the task ofseparating the Fourth Amendment
standard from qualified immunity, addressing them separately "ensures that

courts will treat the two forms of 'reasonableness' as distinct and that the

important interests protected by the qualified-immunity doctrine will be
served."

155
Notwithstanding the benefit ofadhering to the Saucier mandate, the

Pearson v. Callahan, 129 S. Ct. 808 (2009) (No. 07-751) (arguing for a modification, but stating

that there was "no reason ... to overrule [Saucier]").

148. Brief for Petitioner, supra note 147, at 56-60. When the resolution of the qualified

immunity issue is particularly fact intensive, the trial court should bypass the constitutional issue

and go directly to qualified immunity. Id.

149. Mat 57-58.
150. Id. at 58-59. The petitioner argues that the Saucier rule is particularly inapposite in

Fourth Amendment cases involving the seizure of evidence since those issues are litigated so

frequently in criminal cases. Id. However, Fourth Amendment issues, such as excessive force,

which are not litigated in criminal court, might still be subject to the Saucier rule. Id.

151. Brief for the United States as Amicus Curiae Supporting Petitioners, supra note 147.

152. Mat 30.
153. Id. at 26-27.

154. Id.

155. Id. at 27; e.g., Brieffor the Nat'l Campaign to Restore Civil Rights as Amicus Curiae in

Support of Respondent, Pearson v. Callahan, 129 S. Ct. 808 (2009) (No. 07-751), 2008 WL
383 1555; BriefofLiberty Legal Inst, as Amicus Curiae in Support ofRespondent Afton Callahan,

Pearson v. Callahan, 1 29 S. Ct. 808 (2009) (No. 07-75 1 ), 2008 WL 385 1 625 ; BriefofAmici Curiae
Nat'l Police Accountability Project & Ass'n ofAm. Justice in Support of Respondent, Pearson v.
Callahan, 129 S. Ct. 808 (2009) (No. 07-751), 2008 WL 3851626; Brief Amicus Curiae of the
ACLU in Support ofRespondent, Pearson v. Callahan, 129 S. Ct. 808 (2009) (No. 07-751), 2008



2009] EXCESSIVE REASONABLENESS 139

United States argued that the lower courts should have discretion in deciding

whether to first address the question of whether there has been a violation of the

Fourth Amendment.
Respondent, and many amice, took the position that the Saucier two-step

process should not be overruled or modified.
1 ' 6

Rather than seeing the two-step

process as an advantage for defendants in civil rights cases, respondent argued

that the benefit of establishing clear constitutional precedent by requiring courts

to address the constitutional question at issue outweighs the disadvantages of the

two-step process.
1
" If the two-step process can be avoided, constitutional law

will not be developed and defendants will continually be able to claim that they

are entitled to qualified immunity because of lack of clarity in the law."
Rather predictably, given that it raised the issue, the Court issued a

unanimous opinion written by Justice Alito overruling the requirement ofSaucier

that a court first resolve the constitutional issue before reaching qualified

immunity, concluding that a "mandatory, two-step rule for resolving all qualified

immunity' claims should not be retained."
1 " 9

Rather, lower court judges "should

be permitted to exercise their sound discretion in deciding which of the two

prongs ofthe qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand."
16JJ

The Court determined that the

requirement that the constitutional violation be analyzed before turning to the

issue of qualified immunity' was inefficient, sometimes resulted in insufficiently

briefed and reasoned decisions, could make appellate review ofthe constitutional
ruling difficult, and generally was contrary to the general rule of the avoidance

of constitutional issues.
161

Although the discussion in Pearson focused on the problems with

unnecessarily addressing a constitutional issue when a court can resolve a case
by deciding that the defendant is entitled to qualified immunity, the problem is

more fundamentally that the two standards are the same in the Fourth

Amendment context. If the Court now allows the lower courts to bypass a

WL 3851627.
156. Brief of Respondent at 48-49, Pearson v. Callahan. 129 S. Ct. 808 (2009) (No. 07-751),

2008 WL 3895481 (doubting whether Pearson is an appropriate case to bring up the continued
viability of Saucier); see Wells, supra note 141 (outlining benefits of two step regime).

15". Brief of Respondent, supra note 156. at 51-52.

158. Brief for Nat'l Campaign to Restore Civil Rights as Amicus Curaie m Support of
Respondent, supra note 155. at 3: Brief of Liberty Legal Inst, as .Amicus Curaie in Support of

Respondent, supra note 155. at 15.

159. Pearson. 129 S. Ct. at 817.

160. Id. at 818.

161. Id. at 818-21. The Court downplayed the concern that by allowing courts to avoid

constitutional issues, new constitutional norms would never be clearly established reasoning that

constitutional norms could be developed in criminal cases, in cases against municipalities, or in

cases that seek injunctive relief. Id. at 822. The Court noted that 'the development of

constitutional law is by no means entirely dependent on cases in which the defendant may seek

qualified immunity.'" Id. at 821-22.



140 INDIANA LAW REVIEW [Vol. 43:1 17

separate analysis of the excessive force issue, it seems inevitable that the two
standards will collapse bringing us back to the situation that existed pre-

Saucier}
62 Some courts will, in effect, conflate the excessive force and qualified

immunity standards. Others will attempt to separate them, thus providing

additional protection to defendants by applying reasonableness twice. Rather

than address the heart ofthe conflicts inherent in qualified immunity, the Court

in Pearson merely provided a mechanism to paper over those problems.

III. ANew Legal Standard for Qualified Immunity in
Excessive Force Claims

The problems that bubbled up to the Court in Saucier, and now in Pearson,
are not merely based on the order ofthe inquiry in a qualified immunity analysis,

but rather are caused by the unworkability ofcombining the Fourth Amendment
constitutional standard with qualified immunity. Although Pearson applied

another temporary fix to the problem by allowing courts to forego a

constitutional analysis and focus only on qualified immunity, the underlying

problem remains unchanged. Rather than looking at the order in which the issues

are decided in a Fourth Amendment civil rights action, a more radical solution
is needed that addresses the heart of the difficulty.

The current regime poses at least three questions in resolving qualified
immunity in an excessive force case: 1) whether the facts establish an

unreasonable use of force; 2) whether the unreasonableness of that use of force

was clearly established at the time ofthe defendant's actions; and 3) whether an
objectively reasonable official would have known that his actions violated the
clearly established right. The incoherency of this regime becomes most acute
when a court attempts to answer the third inquiry—whether the reasonable
official would have known that his actions violate a clearly established right. 163

Given that it has already determined that the amount of force used was
unreasonable, the court must now somehow apply another level of
reasonableness to the facts. To alleviate that problem, the qualified immunity
standard, at least in the excessive force context, should become a purely legal
question—does the determination that the defendant's actions violate the Fourth
Amendment represent a new development in the law? Rather than three
questions, the court will resolve only two: 1) whether the facts establish an

unreasonable use of force; and 2) whether a new legal standard has been applied
by the court.

For example, in the Jennings v. Pare factual scenario discussed earlier,
164

the

162. As one amicus points out, "lower courts have struggled in their application of qualified

immunity in the use-of-force context" resulting in lower standards for police behavior. Brief of

Amicus Curiae Nat'l Police Accountability, Project & Ass'n of American Justice in Support of
Respondent, supra note 155, at 20-21.

163. See Catlett, supra note 7, at 1052-54 (noting that apart from assessing reasonableness,

even determining what is "clearly established" can be problematic).

164. See supra Part I.A-B.



2009] EXCESSIVE REASONABLENESS 141

court would determine whether the police officer's twisting of the plaintiffs

ankle violated the Fourth Amendment. To do that the court would determine
whether the officer's actions were reasonable given the circumstances apparent

to the officer at the time he acted. Consideration would be given to the factors
outlined in Graham, such as the severity of the crime the plaintiff was thought
to be committing, the threat the plaintiff posed to the officer or to others, and

whether the plaintiff was resisting arrest. If the court determined that a Fourth
Amendment violation had occurred, the only task left for qualified immunity
would be to ascertain if the Fourth Amendment standard applied represented a
departure from settled law. If not, then the defendant would not be entitled to
qualified immunity.

This reformulation would provide critical protection for the defendant from
being held responsible for predicting novel developments in the law. This

concern, after all, was one ofthe primary motivating forces behind the adoption
of qualified immunity.

165 The new standard would also make the qualified
immunity question purely a legal one, thus eliminating confusion between the

roles of the judge and the jury. It is the second reasonableness inquiry that

creates questions offact in a qualified immunity analysis—a court could address
purely as a legal matter whether it is adopting new law while omitting the
confusing and unnecessary second inquiry into reasonableness.

Ofcourse, determining whether new law has been developed is not a simple
task. As Chaim Saiman has pointed out, law created by courts is not framed as
the articulation of new black letter rules, but rather by the application of
precedent to a particular set of facts.

166
Notwithstanding these difficulties,

however, certain kinds of decisions could be relatively clearly identified as

creating new legal standards. For example, Graham itself, which announced for
the first time that the Fourth Amendment would be the framework in which
seizures made with excessive force are analyzed, represented a break with the
past and an articulation of new standards. 167 Similarly, an analysis which
explicitly repudiates or overrules prior cases would also be a new development
in the law. A decision which applied a well established general standard to a
new set of facts would likely not be developing new law. Only in those game
changing moments when a police officer's behavior is being evaluated by a
genuinely new standard would qualified immunity come into play to protect a
police officer caught in between old and new constitutional standards.

Because articulations of genuinely new law are rare, the result of such a
reformulated qualified immunity standard would be that qualified immunity
would rarely be granted in excessive force cases. One result might be that
government officials would more often be found liable for unconstitutional acts.
This might well have a beneficial impact on the behavior of police officers and

165. Pierson v. Ray, 386 U.S. 547, 557 (1967) (noting that qualified immunity is necessary

because police officers should not be charged "with predicting the future course of constitutional

law").

166. Chaim Saiman, Interpreting Immunity, 1 U. PA. J. CONST. L. 1 155, 1 156-57 (2003).

167. See Graham v. Connor, 490 U.S. 386, 393-95 (1989).



142 INDIANA LAW REVIEW [Vol. 43: 1 1

7

the training they receive. More likely, however, is that cases will be resolved on
the basis ofthe Fourth Amendment rather than because ofthe qualified immunity
defense. It is quite possible that defendants would not lose appreciably more §
1983 cases, only that the basis for a defendant's success would be the
requirements of the Fourth Amendment rather than qualified immunity.

Requiring that the Fourth Amendment, rather than qualified immunity, do the
work of determining which police behaviors should be sanctioned and which
should be excused, will lead to more clarity for the guidance of police officers
and also more open understanding by the public of the range of permissible
police behavior. The elimination of the obfuscation provided by qualified
immunity may make it more possible to have a constructive discussion
concerning the appropriate use ofpolice force and the remedies for abuses ofthat

force. Reforming the legal regime to provide a more meaningful deterrent to
police violence can start by making the rules applicable to such claims more
simple and coherent.

Conclusion

Over the past thirty years, courts and litigants have attempted to forge a
workable regime for applying qualified immunity in excessive force cases. These

attempts have been largely unsuccessful and have led to an increasingly

complicated and unsatisfactory set of steps that a district court must execute

when these cases arise. Because of its complexity and incoherence, the current
system seems to work for no one—not police defendants, not judges, and most
particularly not victims of police abuse. It has become apparent that periodic
fixes by the Supreme Court will not solve the problem—a more profound
rethinking of the doctrine is required.

In excessive force cases the qualified immunity defense should be modified

to eliminate the reasonableness inquiry, allowing the Fourth Amendment to do
the work ofassessing reasonableness. This change would go a long way toward
simplifying and reforming the defense. Other changes in the doctrine may well
also be necessary to create a more usable and rational system. If the current
approach is left intact without any profound alternations, the promise of § 1983

as a meaningful remedy to police abuse will be unfulfilled, andjudges will be left

to dance through a complex set of steps without any music to give it meaning.