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Back to Archives | Back to July 2008 Contents 

Chief's Counsel

"Rigid Order of Battle": A Police Training Perspective on the Qualified Immunity Analysis

Dawn M. Diedrich, Deputy Director of Legal Services and Special Agent, Georgia Bureau of Investigation, Decatur, Georgia

ecently, a few justices and legal scholars have recommended departing from the analysis set forth in Saucier v. Katz,1 referred to as the “rigid order of battle,” to determine a police officer’s entitlement to qualified immunity.2 Such a departure would be ill advised from the perspective of professional police officers, who are trained on constitutional
law. The rigid order of battle promotes the development of clear guidelines as to what conduct is and, perhaps more importantly, is not constitutional.3 Such clear guidelines are then imparted to police officers through training,
and such training ultimately results in the protection of the public’s constitutional rights.

Qualified Immunity Defense

Individuals may bring a lawsuit pursuant to 42 U.S.C. 1983 against a police officer when the officer violates their constitutional rights.4 Section 1983 is simply the vehicle to bring the claim; the substantive right is found within the U.S. Constitution.

In lawsuits brought pursuant to Section 1983, officers may assert the defense of qualified immunity, which, if granted, results in the dismissal of the officer from the suit. The qualified immunity analysis has two components: whether the officer has violated a constitutional right and whether the constitutional right was clearly established.5 If the answer to either component is no, then the officer gains the protection of qualified immunity.6

Why does the law grant immunity to an officer who violates someone’s constitutional rights? The requirement that the right be “clearly established” is rooted in fairness. As the U.S. Supreme Court has explained, “Qualified immunity operates . . . to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.”7 Hence, “‘[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.’”8

The best example of qualified immunity in action is the case of Tennessee v. Garner.9 Every officer knows the holding of that case: it violates the Fourth Amendment to “seize an unarmed, nondangerous suspect by shooting him dead.”10 But at the time of the incident, Tennessee law authorized the use of deadly force to arrest a fleeing felon, and so the officer’s actions were in accordance with the law.11 For this reason, the lower court granted the officer qualified immunity, which resulted in his dismissal from the lawsuit—a fair result for the officer, who believed his actions were lawful.12

Rigid Order of Battle Applied(and Not Applied)

In 2001, the Supreme Court stated in Saucier v. Katz that the “initial inquiry” for the court when deciding the question of qualified immunity is to determine whether the officer violated a constitutional right.13 The Court explained that determining first whether a constitutional violation has occurred “serves to advance understanding of the law.”14 Prior to the Saucier decision, courts sometimes concluded that the right was not clearly established without making the determination of whether the officer’s actions had violated the Constitution. After Saucier, the lower courts were obliged not to skip the first step in the qualified immunity analysis—hence the phrase “rigid order of battle.”

From the perspective of police training, the Saucier-imposed rigid order of battle makes sense. A professional police officer must have an understanding of basic constitutional principles relating to arrest, search and seizure, and the lawful use of force in accordance with the Fourth Amendment.15 One commentator explains, “The main aim of Saucier is to encourage the elaboration of constitutional law.”16 Although this order may require judges and litigants to devote time to clarifying the issues, the results are “bright-line rules” that are easily imparted to officers during training. Such training enables officers to understand what the Constitution requires and prohibits.

A recent case illustrates this point. In McClish v. Nugent, a deputy went to McClish’s home with probable cause to arrest him for aggravated stalking but did not have an arrest warrant.17 McClish answered the door and was standing inside the threshold of his house.18 The deputy reached inside, grabbed McClish, and placed him under arrest.19

The 11th Circuit Court of Appeals had to determine whether reaching through the doorway into McClish’s home violated the Fourth Amendment. The court concluded that it did as there was no consent, no exigent circumstance, and no warrant.20 After determining that McClish’s constitutional rights had been violated, the court addressed the second inquiry and concluded that the right was not clearly established.21 Hence, the deputy was entitled to qualified immunity and was dismissed from the suit.

For a police trainer, this case gives clear guidance to officers and is actually a primer for Fourth Amendment issues relating to entry into a home. The Court gave a bright-line rule: “[W]e have made clear that any physical invasion of the structure of the home, ‘by even a fraction of an inch’ is too much.”22 The court explained that it would have been lawful for the deputies to have asked McClish to step outside and then to have arrested him (as had occurred in a prior case).23 As a result, officers have been trained on this point,24 and by following their training, they will safeguard the constitutional rights of individuals.

In contrast to the clear guidance that decisions following the Saucier analysis provide, one commentator suggests that the Saucier rigid order of battle should be jettisoned so that courts do not “glibly announce new constitutional rights in dictum.”25 Instead, courts should “warn of the probable unconstitutionality—without taking a definitive position.”26 Then officers who persist in such conduct are “either acting in bad faith disregard of the court’s warning or taking a calculated risk that their conduct will ultimately be vindicated.”27

This analysis is problematic. First, “warnings” are not clearly established law. The requirement that the law be clearly established is long-standing qualified immunity jurisprudence and predates Saucier by almost 20 years.28 How many such “warnings” are required before a court concludes that the law is now clearly established? Can the law ever be clearly established with warnings alone? Meanwhile, conduct that may in fact be unconstitutional continues to the detriment of the public.

On the other hand, warnings may result in the cessation of lawful conduct that serves to protect the public. One such warning has already been issued by a court not following the Saucier analysis. In Bloomquist v. Albee, officers were asked to serve a protection-from-abuse order on Bloomquist, who they knew possessed numerous firearms, and to accompany his wife to obtain her belongings.29 The wife, who had obtained the restraining order because of domestic violence and her fear for her life, had advised officers that her husband kept weapons in a locked basement room with a potentially booby-trapped door.30 After the Maine State Police Bomb Unit disarmed the “booby trap” on the door,31 officers found “numerous firearms, rounds of ammunition, and assorted weapons.”32 Based on his 23 years of experience as a police officer investigating domestic violence, defendant Sheriff Mark Dion was aware “that one of the most dangerous periods for a spouse who is leaving an abusive partner is the time frame surrounding the spouse’s initial departure from the marital residence.”33 For this reason, he decided “to secure Bloomquist’s weapons pending resolution of the complaint.”34 Bloomquist then filed a Section 1983 lawsuit alleging that the seizure of the weapons without due process violated the Second Amendment as well as several other constitutional rights.

In a lengthy order recommending the grant of summary judgment on all claims,35 the magistrate judge addressed the seizure of the weapons claim as follows: “[I]f Bloomquist has a constitutionally protected individual right under the Second Amendment—it is not a right that was (or is) clearly established.”36

Over the course of their careers, many officers have seized weapons for safekeeping. Perhaps such seizures are a violation of the Constitution. If so, clear guidance will ensure that such seizures for safekeeping do not occur. On the other hand, if a risk-averse department uses the “warning” analysis proposed, it may choose to promulgate a policy prohibiting the seizure of weapons for safekeeping—with potentially tragic outcomes.

Both McClish v. Nugent and Bloomquist v. Albee expended judicial resources. The opinion in McClish is 34 pages in the Federal Reporter, and the Bloomquist opinion is 28 pages in the Federal Supplement. Justice Stephen Breyer points out that the rigid order of battle requires “lower courts unnecessarily to answer difficult constitutional questions, thereby wasting judicial resources.”37 It is unclear, however, who is going to interpret the U.S. Constitution other than the judiciary. The essence of a claim brought pursuant to 42 U.S.C. 1983 is that a state actor has violated the Constitution. To ensure that state actors such as police officers do not violate the Constitution, the judiciary must tell police officers what the Constitution requires and prohibits.38


One commentator, who is in favor of the rigid order of battle, insightfully points out,

Constitutional tort law is of a different order. It concerns judicial oversight of the daily work of police officers, prison guards, school teachers and principals, zoning officials, and others who deal with the public on a daily basis. It is better that the law bearing on their conduct be as fully developed as possible, both for the sake of giving them the guidance they need and in order that victims of their misconduct will have access to an effective damages remedy.39

A police chief always hopes that there will be no “victims of misconduct” and provides training to their officers to avoid that result. The benefit of the Saucier analysis is that it forces “courts to establish precedent on the contours of constitutional rights to provide guidance for law enforcement officers.”40 With clear and concrete guidance from the courts, police trainers can educate officers. Well-trained and knowledgeable officers can then truly protect and serve the public. ■


1Saucier v. Katz, 533 U.S. 194 (2001).
2See Morse v. Frederick, 127 S. Ct. 2618, 2642 (2007) (Breyer, S., concurring in part and dissenting in part) (“If it is Saucier that tempts this Court to adhere to the rigid ‘order of battle’ that binds lower courts, it should resist that temptation”); Scott v. Harris, 127 S. Ct. 1769, 1780 (2007) (Breyer, S., concurring) (suggesting that “we should overrule the requirement, announced in Saucier v. Katz . . . that lower courts must first decide the ‘constitutional question’ before they turn to the ‘qualified immunity question’”); Brosseau v. Haugen, 543 U.S. 194, 201–202 (2004) (Breyer, S., with whom Scalia, A., and Ginsburg, R., join, concurring) (stating that “a rigid ‘order of battle’ makes little administrative sense and can sometimes lead to a constitutional decision that is effectively insulated from review”); Bunting v. Mellen, 541 U.S. 1019, 1025 (2004) (Scalia, A., with whom the Chief Justice, Roberts, J., joins, dissenting from denial of certiorari) (suggesting that “[w]e 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”); “Fourth Amendment—Reasonableness of Forcible Seizure,” in “The Supreme Court, 2006 Term: Leading Cases,” Harvard Law Review 121 (November 2007): 221 (explaining the Saucier approach as encouraging “judicial rulemaking”); and Pierre N. Leval, “Madison Lecture: Judging under the Constitution: Dicta about Dicta,” New York University Law Review 81 (October 2006): 1275 (describing the Saucier approach as “a puzzling misadventure in constitutional dictum”). But see Wright v. City of Philadelphia, 409 F.3d 595, 607 (3rd Cir. 2005) (Smith, D., concurring) (“Saucier’s ‘order of battle’ is designed to force courts to establish precedent on the contours of constitutional rights to provide guidance for law enforcement officers”); Michael L. Wells, “The ‘Order-of-Battle’ in Constitutional Litigation,” SMU Law Review 60 (Fall 2007): 1568 (concluding that order of battle results in “a larger and more concrete . . . body of law” that gives officers guidance); Lynn Adelman and Jon Deitrich, “Saying What the Law Is: How Certain Legal Doctrines Impede the Development of Constitutional Law and What Courts Can Do about It,” Federal Courts Law Review 2007 (May 2007): III, (accessed June 18, 2008) (“While allowing courts to decide the ‘easy’ question and avoid the hard one might make sense from a judicial economy standpoint, it would impede the development of constitutional law”).
3Wright, 409 F.3d at 607; Wells, “‘Order-of-Battle,’” 1568; Adelman and Deitrich, “Saying What the Law Is,” III.
4These constitutional claims are also known as “Section 1983 claims,” “constitutional torts,” or “civil rights suits.”
5Saucier, 533 U.S. at 201.
6Id. at 201–202.
7Id. at 206.
8Wilson v. Layne, 526 U.S. 603, 618 (1999).
9Tennessee v. Garner, 471 U.S. 1 (1985).
10Id. at 11.
11In Hope v. Pelzer, 536 U.S. 730, 741 (2002), the “salient question” is whether the state of law in the year in which the incident occurred gave an officer “fair warning” that his actions were unconstitutional. In Tennessee v. Garner, 471 U.S. at 4–5, citing Tennessee Code Ann. sec. 40-7-108 (1982), Tennessee law was noted as providing that “[if], after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.”
12Garner v. Memphis Police Dep’t, 710 F.2d 240, 242 (6th Cir. 1983), aff’d sub nom. Tennessee v. Garner, 471 U.S. 1 (1985).
13Saucier, 533 U.S. at 201.
15Law enforcement has embraced training. See, for example, Joseph C. Carter, “Protecting Civil Rights,” President’s Message, The Police Chief 74, no. 1 (January 2007): 6 (“In 2006, the typical police officer is better trained, better educated, and better equipped than his or her predecessors”).
16Wells, “‘Order-of-Battle,’” 1566.
17McClish v. Nugent, 483 F.3d 1231, 1235 (11th Cir. 2007).
18Id. at 1235–36.
20Id. at 1247–48.
21Id. at 1249–50.
22Id. at 1242–43 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).
23McClish, 483 F.3d at 1243 (discussing Knight v. Jacobson, 300 F.3d 1272 (11th Cir. 2002)).
24Dawn M. Diedrich, “2007 Civil Rights Update” (Georgia Association of Chiefs of Police Summer Conference, Savannah, Georgia, July 31, 2007; PowerPoint presentation on file with the Georgia Association of Chiefs of Police).
25Leval, “Judging under the Constitution,” 1277.
26Ibid., 1281.
28See Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982) (“If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct”).
29Bloomquist v. Albee, 421 F. Supp. 2d 162, 168–69 (D. Maine 2006).
30Id. at 168.
31The “trap” turned out to be a noisemaker. Id. at 172.
32Id. at 172.
33Id. at 170.
35The magistrate judge’s recommendation was affirmed by the district court judge. Id. at 164.
36Id. at 182.
37Morse v. Frederick, 127 S.Ct. at 2641.
38Wells, “‘Order-of-Battle,’” 1566 (“The main aim of Saucier is to encourage the elaboration of constitutional law”).
39Ibid., 1568.
40Wright, 409 F.3d at 607 (Smith, D., concurring).



From The Police Chief, vol. LXXV, no. 7, July 2008. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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