Chris Dutra, et al. v. Kim Jackson

The meaning of “clearly established” for qualified immunity purposes is not, itself, clearly established. There is a split among this Court’s precedents over which authorities provide clearly established law. On one hand, this Court has suggested that no precedents other than its own may supply clearly established law. But for four decades, the Court has repeatedly reserved the question and, instead, assumed without deciding that controlling circuit precedent may provide clearly established law for qualified immunity. On the other hand, this Court has indicated that clearly established law is not limited to its precedents and may, in fact, come from circuit court precedent, “a consensus of cases of persuasive authority,” or various other sources. This Court’s divide has destabilized qualified immunity doctrine across the country. Circuits are fractured about whether they must look to this Court’s decisions or whether they may examine in-circuit, out-of-circuit, district court, and state court authorities, or even whether they may rely on state and federal regulatory guidance. No matter the source of the clearly established law, this Court has repeatedly cautioned courts—particularly the Ninth Circuit—not to define clearly established law at a high level of generality, especially in the Fourth Amendment excessive force context. These are the questions presented: 1. Are this Court’s precedents the only source of clearly established law for purposes of qualified immunity?