(Slip Opinion) OCTOBER TERM, 2008 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

PEARSON ET AL. v. CALLAHAN 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE TENTH CIRCUIT 

No. 07–751. Argued October 14, 2008—Decided January 21, 2009 

After the Utah Court of Appeals vacated respondent’s conviction for

possession and distribution of drugs, which he sold to an undercover

informant he had voluntarily admitted into his house, he brought 

this 42 U. S. C. §1983 damages action in federal court, alleging that 

petitioners, the officers who supervised and conducted the warrantless search of the premises that led to his arrest after the sale,

had violated the Fourth Amendment. The District Court granted 

summary judgment in favor of the officers. Noting that other courts 

had adopted the “consent-once-removed” doctrine—which permits a 

warrantless police entry into a home when consent to enter has already been granted to an undercover officer who has observed contraband in plain view—the court concluded that the officers were entitled to qualified immunity because they could reasonably have

believed that the doctrine authorized their conduct. Following the 

procedure mandated in Saucier v. Katz, 533 U. S. 194, the Tenth Circuit held that petitioners were not entitled to qualified immunity.

The court disapproved broadening the consent-once-removed doctrine 

to situations in which the person granted initial consent was not an

undercover officer, but merely an informant. It further held that the 

Fourth Amendment right to be free in one’s home from unreasonable 

searches and arrests was clearly established at the time of respondent’s arrest, and determined that, under this Court’s clearly established precedents, warrantless entries into a home are per se unreasonable unless they satisfy one of the two established exceptions for

consent and exigent circumstances. The court concluded that petitioners could not reasonably have believed that their conduct was

lawful because they knew that (1) they had no warrant; (2) respondent had not consented to their entry; and (3) his consent to the entry 
2 PEARSON v. CALLAHAN 

Syllabus 

of an informant could not reasonably be interpreted to extend to

them. In granting certiorari, this Court directed the parties to address whether Saucier should be overruled in light of widespread 

criticism directed at it. 

Held: 

1. The Saucier procedure should not be regarded as an inflexible 

requirement. Pp. 5–19.

(a) Saucier mandated, see 533 U. S., at 194, a two-step sequence

for resolving government officials’ qualified immunity claims: A court

must decide (1) whether the facts alleged or shown by the plaintiff

make out a violation of a constitutional right, and (2) if so, whether

that right was “clearly established” at the time of the defendant’s alleged misconduct, id., at 201. Qualified immunity applies unless the

official's conduct violated such a right. Anderson v. Creighton, 483 

U. S. 635, 640. Pp. 5–7.

(b) Stare decisis does not prevent this Court from determining 

whether the Saucier procedure should be modified or abandoned.

Revisiting precedent is particularly appropriate where, as here, a departure would not upset settled expectations, see, e.g., United States 

v. Gaudin, 515 U. S. 506, 521; the precedent consists of a rule that is

judge-made and adopted to improve court operations, not a statute 

promulgated by Congress, see, e.g., State Oil Co. v. Khan, 522 U. S. 3, 

20; and the precedent has “been questioned by Members of th[is] 

Court in later decisions, and [has] defied consistent application by

the lower courts,” Payne v. Tennessee, 501 U. S. 808, 829–830. Respondent’s argument that Saucier should not be reconsidered unless 

the Court concludes that it was “badly reasoned” or that its rule has

proved “unworkable,” see Payne, supra, at 827, is rejected. Those 

standards are out of place in the present context, where a considerable body of new experience supports a determination that a mandatory, two-step rule for resolving all qualified immunity claims should

not be retained. Pp. 7–10.

(c) Reconsideration of the Saucier procedure demonstrates that,

while the sequence set forth therein is often appropriate, it should no

longer be regarded as mandatory in all cases. Pp. 10–19. 

(i) The Court continues to recognize that the Saucier protocol is 

often beneficial. In some cases, a discussion of why the relevant facts

do not violate clearly established law may make it apparent that in

fact the relevant facts do not make out a constitutional violation at 

all. And Saucier was correct in noting that the two-step procedure

promotes the development of constitutional precedent and is especially valuable for questions that do not frequently arise in cases in 

which a qualified immunity defense is unavailable. See 533 U. S., at 

194. Pp. 10–11. 
Cite as: 555 U. S. ____ (2009) 3 

Syllabus 

(ii) Nevertheless, experience in this Court and the lower federal courts has pointed out the rigid Saucier procedure’s shortcomings. For example, it may result in a substantial expenditure of 

scarce judicial resources on difficult questions that have no effect on 

the case’s outcome, and waste the parties’ resources by forcing them 

to assume the costs of litigating constitutional questions and endure 

delays attributable to resolving those questions when the suit otherwise could be disposed of more readily. Moreover, although the 

procedure’s first prong is intended to further the development of 

constitutional precedent, opinions following that procedure often fail 

to make a meaningful contribution to such development. Further, 

when qualified immunity is asserted at the pleading stage, the 

answer to whether there was a violation may depend on a kaleidoscope of facts not yet fully developed. And the first step may create 

a risk of bad decisionmaking, as where the briefing of constitutional 

questions is woefully inadequate. Application of the Saucier rule also 

may make it hard for affected parties to obtain appellate review of 

constitutional decisions having a serious prospective effect on their 

operations. For example, where a court holds that a defendant has 

committed a constitutional violation, but then holds that the violation was not clearly established, the defendant, as the winning party, 

may have his right to appeal the adverse constitutional holding challenged. Because rigid adherence to Saucier departs from the general 

rule of constitutional avoidance, cf., e.g., Scott v. Harris, 550 U. S. 

372, 388, the Court may appropriately decline to mandate the order 

of decision that the lower courts must follow, see, e.g., Strickland v. 

Washington, 466 U. S. 668, 697. This flexibility properly reflects the 

Court’s respect for the lower federal courts. Because the two-step 

Saucier procedure is often, but not always, advantageous, those 

judges are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each 

case. Pp. 11–17. 

(iii) Misgivings concerning today’s decision are unwarranted. 

It does not prevent the lower courts from following Saucier; it simply 

recognizes that they should have the discretion to decide whether 

that procedure is worthwhile in particular cases. Moreover, it will 

not retard the development of constitutional law, result in a proliferation of damages claims against local governments, or spawn new 

litigation over the standards for deciding whether to reach the particular case’s merits. Pp. 17–19. 

2. Petitioners are entitled to qualified immunity because it was not

clearly established at the time of the search that their conduct was 

unconstitutional. When the entry occurred, the consent-once-
4 PEARSON v. CALLAHAN 

Syllabus 

removed doctrine had been accepted by two State Supreme Courts 

and three Federal Courts of Appeals, and not one of the latter had issued a contrary decision. Petitioners were entitled to rely on these

cases, even though their own Federal Circuit had not yet ruled on

consent-once-removed entries. See Wilson v. Layne, 526 U. S. 603, 

618. Pp. 19–20. 

494 F. 3d 891, reversed. 

ALITO, J., delivered the opinion for a unanimous Court. 
_________________ 

_________________ 

Cite as: 555 U. S. ____ (2009) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 07–751 

CORDELL PEARSON, ET AL., PETITIONERS v. AFTON 

CALLAHAN 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE TENTH CIRCUIT 

[January 21, 2009] 

JUSTICE ALITO delivered the opinion of the Court. 

This is an action brought by respondent under Rev.

Stat. §1979, 42 U. S. C. §1983, against state law enforcement officers who conducted a warrantless search of his 

house incident to his arrest for the sale of methamphetamine to an undercover informant whom he had voluntarily 

admitted to the premises. The Court of Appeals held that

petitioners were not entitled to summary judgment on 

qualified immunity grounds. Following the procedure we 

mandated in Saucier v. Katz, 533 U. S. 194 (2001), the

Court of Appeals held, first, that respondent adduced facts 

sufficient to make out a violation of the Fourth Amendment and, second, that the unconstitutionality of the

officers’ conduct was clearly established. In granting 

review, we required the parties to address the additional 

question whether the mandatory procedure set out in 

Saucier should be retained. 

We now hold that the Saucier procedure should not be 

regarded as an inflexible requirement and that petitioners 

are entitled to qualified immunity on the ground that it

was not clearly established at the time of the search that 
2 PEARSON v. CALLAHAN 

Opinion of the Court 

their conduct was unconstitutional. We therefore reverse. 

I 

A 

The Central Utah Narcotics Task Force is charged with 

investigating illegal drug use and sales. In 2002, Brian 

Bartholomew, who became an informant for the task force 

after having been charged with the unlawful possession of 

methamphetamine, informed Officer Jeffrey Whatcott that 

respondent Afton Callahan had arranged to sell Bartholomew methamphetamine later that day. 

That evening, Bartholomew arrived at respondent’s 

residence at about 8 p.m. Once there, Bartholomew went 

inside and confirmed that respondent had methamphetamine available for sale. Bartholomew then told respondent that he needed to obtain money to make his purchase 

and left. 

Bartholomew met with members of the task force at 

about 9 p.m. and told them that he would be able to buy a

gram of methamphetamine for $100. After concluding

that Bartholomew was capable of completing the planned

purchase, the officers searched him, determined that he

had no controlled substances on his person, gave him a

marked $100 bill and a concealed electronic transmitter to 

monitor his conversations, and agreed on a signal that he

would give after completing the purchase.

The officers drove Bartholomew to respondent’s trailer

home, and respondent’s daughter let him inside. Respondent then retrieved a large bag containing methamphetamine from his freezer and sold Bartholomew a gram of 

methamphetamine, which he put into a small plastic bag.

Bartholomew gave the arrest signal to the officers who 

were monitoring the conversation, and they entered the

trailer through a porch door. In the enclosed porch, the

officers encountered Bartholomew, respondent, and two

other persons, and they saw respondent drop a plastic bag, 
Cite as: 555 U. S. ____ (2009) 3 

Opinion of the Court 

which they later determined contained methamphetamine. The officers then conducted a protective sweep

of the premises. In addition to the large bag of methamphetamine, the officers recovered the marked bill 

from respondent and a small bag containing methamphetamine from Bartholomew, and they found drug 

syringes in the residence. As a result, respondent was

charged with the unlawful possession and distribution of 

methamphetamine. 

B 

The trial court held that the warrantless arrest and 

search were supported by exigent circumstances. On 

respondent’s appeal from his conviction, the Utah attorney

general conceded the absence of exigent circumstances, 

but urged that the inevitable discovery doctrine justified 

introduction of the fruits of the warrantless search. The 

Utah Court of Appeals disagreed and vacated respondent’s

conviction. See State v. Callahan, 2004 LIT App. 164, 93 

P. 3d 103. Respondent then brought this damages action

under 42 U. S. C. §1983 in the United States District 

Court for the District of Utah, alleging that the officers

had violated the Fourth Amendment by entering his home 

without a warrant. See Callahan v. Millard Cty., No. 

2:04–CV–00952, 2006 WL 1409130 (2006). 

In granting the officers’ motion for summary judgment,

the District Court noted that other courts had adopted the 

“consent-once-removed” doctrine, which permits a warrantless entry by police officers into a home when consent

to enter has already been granted to an undercover officer 

or informant who has observed contraband in plain view.

Believing that this doctrine was in tension with our intervening decision in Georgia v. Randolph, 547 U. S. 103 

(2006), the District Court concluded that “the simplest

approach is to assume that the Supreme Court will ultimately reject the [consent-once-removed] doctrine and find 
4 PEARSON v. CALLAHAN 

Opinion of the Court 

that searches such as the one in this case are not reasonable under the Fourth Amendment.” 2006 WL 1409130, 

at *8. The Court then held that the officers were entitled 

to qualified immunity because they could reasonably have 

believed that the consent-once-removed doctrine authorized their conduct. 

On appeal, a divided panel of the Tenth Circuit held

that petitioners’ conduct violated respondent’s Fourth

Amendment rights. Callahan v. Millard Cty., 494 F. 3d 

891, 895–899 (2007). The panel majority stated that “[t]he 

‘consent-once-removed’ doctrine applies when an undercover officer enters a house at the express invitation of 

someone with authority to consent, establishes probable 

cause to arrest or search, and then immediately summons 

other officers for assistance.” Id., at 896. The majority

took no issue with application of the doctrine when the 

initial consent was granted to an undercover law enforcement officer, but the majority disagreed with decisions 

that “broade[n] this doctrine to grant informants the same 

capabilities as undercover officers.” Ibid. 

The Tenth Circuit panel further held that the Fourth

Amendment right that it recognized was clearly established at the time of respondent’s arrest. Id., at 898–899. 

“In this case,” the majority stated, “the relevant right is

the right to be free in one’s home from unreasonable 

searches and arrests.” Id., at 898. The Court determined 

that, under the clearly established precedents of this

Court and the Tenth Circuit, “warrantless entries into a 

home are per se unreasonable unless they satisfy the 

established exceptions.” Id., at 898–899. In the panel’s

words, “the Supreme Court and the Tenth Circuit have 

clearly established that to allow police entry into a home, 

the only two exceptions to the warrant requirement are 

consent and exigent circumstances.” Id., at 899. Against

that backdrop, the panel concluded, petitioners could not 

reasonably have believed that their conduct was lawful 
Cite as: 555 U. S. ____ (2009) 5 

Opinion of the Court 

because petitioners “knew (1) they had no warrant; (2) 

[respondent] had not consented to their entry; and (3) 

[respondent’s] consent to the entry of an informant could

not reasonably be interpreted to extend to them.” Ibid. 

In dissent, Judge Kelly argued that “no constitutional

violation occurred in this case” because, by inviting Bartholomew into his house and participating in a narcotics

transaction there, respondent had compromised the privacy of the residence and had assumed the risk that Bartholomew would reveal their dealings to the police. Id., at 

903. Judge Kelly further concluded that, even if petitioners’ conduct had been unlawful, they were nevertheless

entitled to qualified immunity because the constitutional 

right at issue—“the right to be free from the warrantless 

entry of police officers into one’s home to effectuate an 

arrest after one has granted voluntary, consensual entry 

to a confidential informant and undertaken criminal 

activity giving rise to probable cause”—was not “clearly

established” at the time of the events in question. Id., at 

903–904. 

As noted, the Court of Appeals followed the Saucier 

procedure. The Saucier procedure has been criticized by 

Members of this Court and by lower court judges, who 

have been required to apply the procedure in a great 

variety of cases and thus have much firsthand experience 

bearing on its advantages and disadvantages. Accordingly, in granting certiorari, we directed the parties to 

address the question whether Saucier should be overruled. 

552 U. S. ___ (2008). 

II 

A 

The doctrine of qualified immunity protects government

officials “from liability for civil damages insofar as their 

conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would 
6 PEARSON v. CALLAHAN 

Opinion of the Court 

have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 

(1982). Qualified immunity balances two important interests—the need to hold public officials accountable when 

they exercise power irresponsibly and the need to shield 

officials from harassment, distraction, and liability when

they perform their duties reasonably. The protection of 

qualified immunity applies regardless of whether the 

government official’s error is “a mistake of law, a mistake 

of fact, or a mistake based on mixed questions of law and 

fact.” Groh v. Ramirez, 540 U. S. 551, 567 (2004) 

(KENNEDY, J., dissenting) (citing Butz v. Economou, 438 

U. S. 478, 507 (1978) (noting that qualified immunity

covers “mere mistakes in judgment, whether the mistake 

is one of fact or one of law”)). 

Because qualified immunity is “an immunity from suit 

rather than a mere defense to liability . . . it is effectively

lost if a case is erroneously permitted to go to trial.” 

Mitchell v. Forsyth, 472 U. S. 511, 526 (1985) (emphasis 

deleted). Indeed, we have made clear that the “driving

force” behind creation of the qualified immunity doctrine

was a desire to ensure that “‘insubstantial claims’ against

government officials [will] be resolved prior to discovery.” 

Anderson v. Creighton, 483 U. S. 635, 640, n. 2 (1987). 

Accordingly, “we repeatedly have stressed the importance 

of resolving immunity questions at the earliest possible

stage in litigation.” Hunter v. Bryant, 502 U. S. 224, 227 

(1991) (per curiam). 

In Saucier, 533 U. S. 194, this Court mandated a twostep sequence for resolving government officials’ qualified 

immunity claims. First, a court must decide whether the 

facts that a plaintiff has alleged (see Fed. Rules Civ. Proc.

12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right. 533 U. S., at 201. Second, if 

the plaintiff has satisfied this first step, the court must

decide whether the right at issue was “clearly established”

at the time of defendant’s alleged misconduct. Ibid. 
Cite as: 555 U. S. ____ (2009) 7 

Opinion of the Court 

Qualified immunity is applicable unless the official’s

conduct violated a clearly established constitutional right. 

Anderson, supra, at 640. 

Our decisions prior to Saucier had held that “the better 

approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the 

plaintiff has alleged a deprivation of a constitutional right 

at all.” County of Sacramento v. Lewis, 523 U. S. 833, 841, 

n. 5 (1998). Saucier made that suggestion a mandate. For 

the first time, we held that whether “the facts alleged

show the officer’s conduct violated a constitutional right 

. . . must be the initial inquiry” in every qualified immunity case. 533 U. S., at 20 (emphasis added). Only after

completing this first step, we said, may a court turn to

“the next, sequential step,” namely, “whether the right 

was clearly established.” Ibid. 

This two-step procedure, the Saucier Court reasoned, is 

necessary to support the Constitution’s “elaboration from 

case to case” and to prevent constitutional stagnation. 

Ibid. “The law might be deprived of this explanation were 

a court simply to skip ahead to the question whether the 

law clearly established that the officer's conduct was

unlawful in the circumstances of the case.” Ibid. 

B 

In considering whether the Saucier procedure should be 

modified or abandoned, we must begin with the doctrine of 

stare decisis. Stare decisis “promotes the evenhanded,

predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes 

to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). Although “[w]e approach the reconsideration of [our] decisions . . . with the utmost caution,” “[s]tare decisis is not 

an inexorable command.” State Oil Co. v. Khan, 522 U. S. 

3, 20 (1997) (internal quotation marks omitted). Revisit-
8 PEARSON v. CALLAHAN 

Opinion of the Court 

ing precedent is particularly appropriate where, as here, a

departure would not upset expectations, the precedent

consists of a judge-made rule that was recently adopted to

improve the operation of the courts, and experience has 

pointed up the precedent’s shortcomings. 

“Considerations in favor of stare decisis are at their 

acme in cases involving property and contract rights,

where reliance interests are involved; the opposite is true

in cases . . . involving procedural and evidentiary rules” 

that do not produce such reliance. Payne, supra, at 828 

(citations omitted). Like rules governing procedures and 

the admission of evidence in the trial courts, Saucier’s 

two-step protocol does not affect the way in which parties 

order their affairs. Withdrawing from Saucier’s categorical rule would not upset settled expectations on anyone’s 

part. See United States v. Gaudin, 515 U. S. 506, 521 

(1995).

Nor does this matter implicate “the general presumption

that legislative changes should be left to Congress.” Khan, 

supra, at 20. We recognize that “considerations of stare 

decisis weigh heavily in the area of statutory construction, 

where Congress is free to change this Court’s interpretation of its legislation.” Illinois Brick Co. v. Illinois, 431 

U. S. 720, 736 (1977). But the Saucier rule is judge made

and implicates an important matter involving internal

Judicial Branch operations. Any change should come from

this Court, not Congress.

Respondent argues that the Saucier procedure should

not be reconsidered unless we conclude that its justification was “badly reasoned” or that the rule has proved to be

“unworkable,” see Payne, supra, at 827, but those standards, which are appropriate when a constitutional or 

statutory precedent is challenged, are out of place in the 

present context. Because of the basis and the nature of 

the Saucier two-step protocol, it is sufficient that we now 

have a considerable body of new experience to consider 
Cite as: 555 U. S. ____ (2009) 9 

Opinion of the Court 

regarding the consequences of requiring adherence to this 

inflexible procedure. This experience supports our present

determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained. 

Lower court judges, who have had the task of applying

the Saucier rule on a regular basis for the past eight

years, have not been reticent in their criticism of Saucier’s 

“rigid order of battle.” See, e.g., Purtell v. Mason, 527 

F. 3d 615, 622 (CA7 2008) (“This ‘rigid order of battle’ has

been criticized on practical, procedural, and substantive

grounds”); Leval, Judging Under the Constitution: Dicta 

About Dicta, 81 N. Y. U. L. Rev. 1249, 1275, 1277 (2006) 

(referring to Saucier’s mandatory two-step framework as 

“a new and mischievous rule” that amounts to “a puzzling 

misadventure in constitutional dictum”). And application

of the rule has not always been enthusiastic. See Higazy 

v. Templeton, 505 F. 3d 161, 179, n. 19 (CA2 2007) (“We do

not reach the issue of whether [plaintiff’s] Sixth Amendment rights were violated, because principles of judicial

restraint caution us to avoid reaching constitutional questions when they are unnecessary to the disposition of a 

case”); Cherrington v. Skeeter, 344 F. 3d 631, 640 (CA6 

2003) (“[I]t ultimately is unnecessary for us to decide 

whether the individual Defendants did or did not heed the 

Fourth Amendment command . . . because they are entitled to qualified immunity in any event”); Pearson v. 

Ramos, 237 F. 3d 881, 884 (CA7 2001) (“Whether [the 

Saucier] rule is absolute may be doubted”). 

Members of this Court have also voiced criticism of the 

Saucier rule. See Morse v. Frederick, 551 U. S. ___, ___ 

(2007) (slip op., at 8) (BREYER, J., concurring in judgment 

in part and dissenting in part) (“I would end the failed 

Saucier experiment now”); Bunting v. Mellen, 541 U. S. 

1019 (2004) (STEVENS, J., joined by GINSBURG and 

BREYER, JJ., respecting denial of certiorari) (criticizing the 

“unwise judge-made rule under which courts must decide 
10 PEARSON v. CALLAHAN 

Opinion of the Court 

whether the plaintiff has alleged a constitutional violation

before addressing the question whether the defendant 

state actor is entitled to qualified immunity”); Id., at 1025 

(SCALIA, J., joined by Rehnquist, C. J., dissenting from

denial of certiorari) (“We should either make clear that 

constitutional determinations are not insulated from our 

review . . . or else drop any pretense at requiring the

ordering in every case” (emphasis in original)); Brosseau v. 

Haugen, 543 U. S. 194, 201–202 (2004) (BREYER, J., joined

by SCALIA and GINSBURG, JJ., concurring) (urging Court 

to reconsider Saucier’s “rigid ‘order of battle,’” which 

“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”); Saucier, 533 U. S., 

at 210 (GINSBURG, J., concurring in judgment) (“The twopart test today’s decision imposes holds large potential to 

confuse”).

Where a decision has “been questioned by Members of 

the Court in later decisions and [has] defied consistent

application by the lower courts,” these factors weigh in 

favor of reconsideration. Payne, 501 U. S., at 829–830; see 

also Crawford v. Washington, 541 U. S. 36, 60 (2004). 

Collectively, the factors we have noted make our present 

reevaluation of the Saucier two-step protocol appropriate. 

III 

On reconsidering the procedure required in Saucier, we 

conclude that, while the sequence set forth there is often 

appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of

appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified 

immunity analysis should be addressed first in light of the 

circumstances in the particular case at hand. 
Cite as: 555 U. S. ____ (2009) 11 

Opinion of the Court 

A 

Although we now hold that the Saucier protocol should 

not be regarded as mandatory in all cases, we continue to 

recognize that it is often beneficial. For one thing, there 

are cases in which there would be little if any conservation

of judicial resources to be had by beginning and ending 

with a discussion of the “clearly established” prong. “[I]t

often may be difficult to decide whether a right is clearly

established without deciding precisely what the constitutional right happens to be.” Lyons v. Xenia, 417 F. 3d 565, 

581 (CA6 2005) (Sutton, J., concurring). In some cases, a 

discussion of why the relevant facts do not violate clearly

established law may make it apparent that in fact the 

relevant facts do not make out a constitutional violation at 

all. In addition, the Saucier Court was certainly correct in

noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently 

arise in cases in which a qualified immunity defense is 

unavailable. 

B 

At the same time, however, the rigid Saucier procedure

comes with a price. The procedure sometimes results in a

substantial expenditure of scarce judicial resources on

difficult questions that have no effect on the outcome of 

the case. There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right. District courts 

and courts of appeals with heavy caseloads are often 

understandably unenthusiastic about what may seem to 

be an essentially academic exercise. 

Unnecessary litigation of constitutional issues also

wastes the parties’ resources. Qualified immunity is “an

immunity from suit rather than a mere defense to liability.” Mitchell, 472 U. S., at 526 (emphasis deleted). Sau-
12 PEARSON v. CALLAHAN 

Opinion of the Court 

cier’s two-step protocol “disserve[s] the purpose of qualified immunity” when it “forces the parties to endure additional burdens of suit—such as the costs of litigating 

constitutional questions and delays attributable to resolving them—when the suit otherwise could be disposed of

more readily.” Brief for Nat. Assn. of Criminal Defense 

Lawyers as Amicus Curiae 30. 

Although the first prong of the Saucier procedure is

intended to further the development of constitutional 

precedent, opinions following that procedure often fail to

make a meaningful contribution to such development. For 

one thing, there are cases in which the constitutional 

question is so fact-bound that the decision provides little 

guidance for future cases. See Scott v. Harris, 550 U. S. 

372, 388 (2007) (BREYER, J., concurring) (counseling

against the Saucier two-step protocol where the question

is “so fact dependent that the result will be confusion 

rather than clarity”); Buchanan v. Maine, 469 F. 3d 158, 

168 (CA1 2006) (“We do not think the law elaboration

purpose will be well served here, where the Fourth 

Amendment inquiry involves a reasonableness question

which is highly idiosyncratic and heavily dependent on the

facts”).

A decision on the underlying constitutional question in a 

§1983 damages action or a Bivens v. Six Unknown Fed. 

Narcotics Agents, 403 U. S. 388 (1971),1 action may have

scant value when it appears that the question will soon be 

decided by a higher court. When presented with a constitutional question on which this Court had just granted

certiorari, the Ninth Circuit elected to “bypass Saucier’s 

first step and decide only whether [the alleged right] was 

—————— 

1See Harlow v. Fitzgerald, 457 U. S. 800, 818, and n. 30 (1982) (noting that the Court’s decisions equate the qualified immunity of state

officials sued under 42 U. S. C. §1983 with the immunity of federal

officers sued directly under the Constitution). 
Cite as: 555 U. S. ____ (2009) 13 

Opinion of the Court 

clearly established.” Motley v. Parks, 432 F. 3d 1072, 

1078, and n. 5 (2005) (en banc). Similar considerations 

may come into play when a court of appeals panel confronts a constitutional question that is pending before the 

court en banc or when a district court encounters a constitutional question that is before the court of appeals. 

A constitutional decision resting on an uncertain interpretation of state law is also of doubtful precedential 

importance. As a result, several courts have identified an 

“exception” to the Saucier rule for cases in which resolution of the constitutional question requires clarification of 

an ambiguous state statute. Egolf v. Witmer, 526 F. 3d 

104, 109–111 (CA3 2008); accord, Tremblay v. McClellan, 

350 F. 3d 195, 200 (CA1 2003); Ehrlich v. Glastonbury, 

348 F. 3d 48, 57–60 (CA2 2003). Justifying the decision to

grant qualified immunity to the defendant without first 

resolving, under Saucier’s first prong, whether the defendant’s conduct violated the Constitution, these courts have 

observed that Saucier’s “underlying principle” of encouraging federal courts to decide unclear legal questions in 

order to clarify the law for the future “is not meaningfully

advanced . . . when the definition of constitutional rights

depends on a federal court’s uncertain assumptions about 

state law.” Egolf, supra, at 110; accord, Tremblay, supra,

at 200; Ehrlich, supra, at 58. 

When qualified immunity is asserted at the pleading 

stage, the precise factual basis for the plaintiff’s claim or

claims may be hard to identify. See Lyons, supra, at 582 

(Sutton, J., concurring); Kwai Fun Wong v. United States, 

373 F. 3d 952, 957 (CA9 2004); Mollica v. Volker, 229 F. 3d 

366, 374 (CA2 2000). Accordingly, several courts have

recognized that the two-step inquiry “is an uncomfortable 

exercise where . . . the answer [to] whether there was a 

violation may depend on a kaleidoscope of facts not yet 

fully developed” and have suggested that “[i]t may be that 

Saucier was not strictly intended to cover” this situation. 
14 PEARSON v. CALLAHAN 

Opinion of the Court 

Dirrane v. Brookline Police Dept., 315 F. 3d 65, 69–70 

(CA1 2002); see also Robinette v. Jones, 476 F. 3d 585, 592, 

n. 8 (CA8 2007) (declining to follow Saucier because “the 

parties have provided very few facts to define and limit 

any holding” on the constitutional question).

There are circumstances in which the first step of the 

Saucier procedure may create a risk of bad decisionmaking. The lower courts sometimes encounter cases in which 

the briefing of constitutional questions is woefully inadequate. See Lyons, 417 F. 3d, at 582 (Sutton, J., concurring) (noting the “risk that constitutional questions may

be prematurely and incorrectly decided in cases where 

they are not well presented”); Mollica, supra, at 374. 

 Although the Saucier rule prescribes the sequence in

which the issues must be discussed by a court in its opinion, the rule does not—and obviously cannot—specify the

sequence in which judges reach their conclusions in their 

own internal thought processes. Thus, there will be cases 

in which a court will rather quickly and easily decide that 

there was no violation of clearly established law before

turning to the more difficult question whether the relevant

facts make out a constitutional question at all. In such 

situations, there is a risk that a court may not devote as 

much care as it would in other circumstances to the decision of the constitutional issue. See Horne v. Coughlin, 

191 F. 3d, 244, 247 (CA2 1999) (“Judges risk being insufficiently thoughtful and cautious in uttering pronouncements that play no role in their adjudication”); Leval

1278–1279. 

Rigid adherence to the Saucier rule may make it hard

for affected parties to obtain appellate review of constitutional decisions that may have a serious prospective effect

on their operations. Where a court holds that a defendant 

committed a constitutional violation but that the violation 

was not clearly established, the defendant may face a

difficult situation. As the winning party, the defendant’s 
Cite as: 555 U. S. ____ (2009) 15 

Opinion of the Court 

right to appeal the adverse holding on the constitutional 

question may be contested. See Bunting, 541 U. S., at 

1025 (SCALIA, J., dissenting from denial of certiorari)

(“The perception of unreviewability undermines adherence 

to the sequencing rule we . . . created” in Saucier);2 see 

also Kalka v. Hawk, 215 F. 3d 90, 96, n. 9 (CADC 2000) 

(noting that “[n]ormally, a party may not appeal from a 

favorable judgment” and that the Supreme Court “has 

apparently never granted the certiorari petition of a party

who prevailed in the appellate court”). In cases like Bunting, the “prevailing” defendant faces an unenviable 

choice: “compl[y] with the lower court’s advisory dictum

without opportunity to seek appellate [or certiorari] review,” or “def[y] the views of the lower court, adher[e] to

practices that have been declared illegal, and thus invit[e]

new suits” and potential “punitive damages.” Horne, 

supra, at 247–248. 

 Adherence to Saucier’s two-step protocol departs from

the general rule of constitutional avoidance and runs 

counter to the “older, wiser judicial counsel ‘not to pass on 

questions of constitutionality . . . unless such adjudication

is unavoidable.’” Scott, 550 U. S., at 388 (BREYER, J., 

—————— 

2 In Bunting, the Court of Appeals followed the Saucier two-step protocol and first held that the Virginia Military Institute’s use of the word 

“God” in a “supper roll call” ceremony violated the Establishment 

Clause, but then granted the defendants qualified immunity because

the law was not clearly established at the relevant time. Mellen v. 

Bunting, 327 F. 3d 355, 365–376 (CA4 2003), cert. denied, 541 U. S. 

1019 (2004). Although they had a judgment in their favor below, the 

defendants asked this Court to review the adverse constitutional 

ruling. Dissenting from the denial of certiorari, JUSTICE SCALIA, joined

by Chief Justice Rehnquist, criticized “a perceived procedural tangle of 

the Court’s own making.” 541 U. S., at 1022. The “tangle” arose from 

the Court’s “ ‘settled refusal’ to entertain an appeal by a party on an 

issue as to which he prevailed” below, a practice that insulates from 

review adverse merits decisions that are “locked inside” favorable 

qualified immunity rulings. Id., at 1023, 1024. 
16 PEARSON v. CALLAHAN 

Opinion of the Court 

concurring) (quoting Spector Motor Service, Inc. v. 

McLaughlin, 323 U. S. 101, 105 (1944)); see Ashwander v. 

TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) 

(“The Court will not pass upon a constitutional question

although properly presented by the record, if there is also

present some other ground upon which the case may be

disposed of”).

In other analogous contexts, we have appropriately 

declined to mandate the order of decision that the lower 

courts must follow. For example, in Strickland v. Washington, 466 U. S. 668 (1984), we recognized a two-part test

for determining whether a criminal defendant was denied 

the effective assistance of counsel: The defendant must 

demonstrate (1) that his counsel’s performance fell below 

what could be expected of a reasonably competent practitioner; and (2) that he was prejudiced by that substandard 

performance. Id., at 687. After setting forth and applying 

the analytical framework that courts must use in evaluating claims of ineffective assistance of counsel, we left it to

the sound discretion of lower courts to determine the order 

of decision. Id., at 697 (“Although we have discussed the 

performance component of an ineffectiveness claim prior 

to the prejudice component, there is no reason for a court 

deciding an ineffective assistance claim to approach the 

inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient 

showing on one”).

In United States v. Leon, 468 U. S. 897 (1984), we created an exception to the exclusionary rule when officers

reasonably rely on a facially valid search warrant. Id., at 

913. In that context, we recognized that a defendant 

challenging a search will lose if either: (1) the warrant 

issued was supported by probable cause; or (2) it was not,

but the officers executing it reasonably believed that it 

was. Again, after setting forth and applying the analytical 

framework that courts must use in evaluating the good-
Cite as: 555 U. S. ____ (2009) 17 

Opinion of the Court 

faith exception to the Fourth Amendment warrant requirement, we left it to the sound discretion of the lower 

courts to determine the order of decision. Id., at 924, 925 

(“There is no need for courts to adopt the inflexible practice of always deciding whether the officers’ conduct manifested objective good faith before turning to the question 

whether the Fourth Amendment has been violated”). 

This flexibility properly reflects our respect for the lower

federal courts that bear the brunt of adjudicating these 

cases. Because the two-step Saucier procedure is often, 

but not always, advantageous, the judges of the district 

courts and the courts of appeals are in the best position to

determine the order of decisionmaking will best facilitate

the fair and efficient disposition of each case. 

C 

Any misgivings concerning our decision to withdraw

from the mandate set forth in Saucier are unwarranted. 

Our decision does not prevent the lower courts from following the Saucier procedure; it simply recognizes that

those courts should have the discretion to decide whether 

that procedure is worthwhile in particular cases. Moreover, the development of constitutional law is by no means

entirely dependent on cases in which the defendant may 

seek qualified immunity. Most of the constitutional issues 

that are presented in §1983 damages actions and Bivens 

cases also arise in cases in which that defense is not available, such as criminal cases and §1983 cases against a 

municipality, as well as §1983 cases against individuals

where injunctive relief is sought instead of or in addition 

to damages. See Lewis, 523 U. S., at 841, n. 5 (noting that 

qualified immunity is unavailable “in a suit to enjoin 

future conduct, in an action against a municipality, or in

litigating a suppression motion”).

We also do not think that relaxation of Saucier’s mandate is likely to result in a proliferation of damages claims 
18 PEARSON v. CALLAHAN 

Opinion of the Court 

against local governments. Compare Brief for Nat. Assn. 

of Counties et al., as Amici Curiae 29, 30 (“[T]o the extent 

that a rule permitting courts to bypass the merits makes it

more difficult for civil rights plaintiffs to pursue novel 

claims, they will have greater reason to press custom,

policy, or practice [damages] claims against local governments”). It is hard to see how the Saucier procedure could

have a significant effect on a civil rights plaintiff’s decision

whether to seek damages only from a municipal employee 

or also from the municipality. Whether the Saucier procedure is mandatory or discretionary, the plaintiff will presumably take into account the possibility that the individual defendant will be held to have qualified immunity, and 

presumably the plaintiff will seek damages from the municipality as well as the individual employee if the benefits 

of doing so (any increase in the likelihood of recovery or 

collection of damages) outweigh the litigation costs. 

Nor do we think that allowing the lower courts to exercise their discretion with respect to the Saucier procedure

will spawn “a new cottage industry of litigation . . . over 

the standards for deciding whether to reach the merits in 

a given case.” Brief for Nat. Assn. of Counties et al. as 

Amici Curiae 29, 30. It does not appear that such a “cottage industry” developed prior to Saucier, and we see no 

reason why our decision today should produce such a 

result. 

IV 

Turning to the conduct of the officers here, we hold that

petitioners are entitled to qualified immunity because the 

entry did not violate clearly established law. An officer 

conducting a search is entitled to qualified immunity

where clearly established law does not show that the 

search violated the Fourth Amendment. See Anderson, 

483 U. S., at 641. This inquiry turns on the “objective

legal reasonableness of the action, assessed in light of the 
Cite as: 555 U. S. ____ (2009) 19 

Opinion of the Court 

legal rules that were clearly established at the time it was 

taken.” Wilson v. Layne, 526 U. S. 603, 614 (1999) (internal quotation marks omitted); see Hope v. Pelzer, 536 U. S. 

730, 739 (2002) (“[Q]ualified immunity operates to ensure

that before they are subjected to suit, officers are on notice

their conduct is unlawful” (internal quotation marks

omitted)).

When the entry at issue here occurred in 2002, the 

“consent-once-removed” doctrine had gained acceptance in

the lower courts. This doctrine had been considered by

three Federal Courts of Appeals and two State Supreme

Courts starting in the early 1980’s. See, e.g., United 

States v. Diaz, 814 F. 2d 454, 459 (CA7), cert. denied, 484 

U. S. 857 (1987); United States v. Bramble, 103 F. 3d 1475 

(CA9 1996); United States v. Pollard, 215 F. 3d 643, 648– 

649 (CA6), cert. denied, 531 U. S. 999 (2000); State v. 

Henry, 133 N. J. 104, 627 A. 2d 125 (1993); State v. Johnston, 184 Wis. 2d 794, 518 N. W. 2d 759 (1994). It had been 

accepted by every one of those courts. Moreover, the 

Seventh Circuit had approved the doctrine’s application to

cases involving consensual entries by private citizens 

acting as confidential informants. See United States v. 

Paul, 808 F. 2d, 645, 648 (1986). The Sixth Circuit 

reached the same conclusion after the events that gave

rise to respondent’s suit, see United States v. Yoon, 398 

F. 3d 802, 806–808, cert. denied, 546 U. S. 977 (2005), and 

prior to the Tenth Circuit’s decision in the present case, no 

court of appeals had issued a contrary decision. 

The officers here were entitled to rely on these cases, 

even though their own Federal Circuit had not yet ruled 

on “consent-once-removed” entries. The principles of

qualified immunity shield an officer from personal liability 

when an officer reasonably believes that his or her conduct 

complies with the law. Police officers are entitled to rely

on existing lower court cases without facing personal 

liability for their actions. In Wilson, we explained that a 
20 PEARSON v. CALLAHAN 

Opinion of the Court 

Circuit split on the relevant issue had developed after the

events that gave rise to suit and concluded that “[i]f judges

thus disagree on a constitutional question, it is unfair to 

subject police to money damages for picking the losing side

of the controversy.” 526 U. S., at 618. Likewise, here, 

where the divergence of views on the consent-onceremoved doctrine was created by the decision of the Court 

of Appeals in this case, it is improper to subject petitioners 

to money damages for their conduct.

Because the unlawfulness of the officers’ conduct in this 

case was not clearly established, petitioners are entitled to

qualified immunity. We therefore reverse the judgment of 

the Court of Appeals. 

It is so ordered.