Ben Kalka v. Kathleen Hawk,appellees

TATEL, Circuit Judge,

concurring in part and concurring in the judgment:

I believe this court has discretion to avoid deciding whether Kalka has “ ‘alleged the deprivation of an actual constitutional right,’ ” Wilson v. Layne, 526 U.S. 603, 609 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290 , 119 S.Ct. 1292 , 143 L.Ed.2d 399 (1999)), for only one reason: this case is factually distinguishable from Wilson . As my colleagues observe, the constitutional question is one for which injunctive relief is potentially available, rendering inapplicable the Supreme Court’s rationale for *100 departing from the principle that constitutional decisionmaking should be avoided where possible. See County of Sacramento v. Lewis, 523 U.S. 833 , 841 n. 5, 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998). The ongoing nature of the alleged violation and consequent potential for injunctive relief distinguish this case from every one in which the Supreme Court has used the Wilson procedure. See Wilson, 526 U.S. 603 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (media representatives accompanied police officers executing arrest warrant in private home); Conn, 526 U.S. 286 , 119 S.Ct. 1292 , 143 L.Ed.2d 399 (prosecutor executed search warrant of attorney while client was testifying before grand jury); Sacramento, 523 U.S. 833 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (motorcyclist killed during high-speed chase by police); and Siegert v. Gilley, 500 U.S. 226 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991) (government employee claimed that supervisor wrote defamatory letter). Accordingly, I agree with my colleagues that Wilson does not control here.

I am less persuaded by the three other reasons the court gives for not following Wilson . Agreeing with the Second Circuit, my colleagues first conclude that “the Supreme Court surely could not have wanted newly-devised constitutional rights to be recognized at the district court level without giving federal officials any chance for appellate review.” Slip Op. at 96; see also Horne v. Coughlin, 191 F.3d 244, 247 (2d Cir.1999). But why not? District court decisions have no precedential effect. They “do not establish the law of the circuit ..., nor, indeed, do they even establish ‘the law of the district.’ ” In re: Executive Office of the President, 215 F.3d 20, 24 (D.C.Cir.2000) (quoting Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366 , 1371 (3d Cir.1991)). Government officials could hardly be injured by an inability to appeal rulings that have no legal force.

Of course, the fact that in some cases government officials might be unable to appeal could be a source of concern if unreviewed district court decisions “clearly established” constitutional rights for purposes of qualified immunity analysis. In that event, government officials would have to tailor future conduct to conform with a district court’s interpretation of the Constitution, or else risk personal liability should that interpretation later survive appellate review. But most of our sister circuits do not look to unreviewed district court decisions for clearly established' rights. See, e.g., Sound Aircraft Services, Inc. v. Town of East Hampton, 192 F.3d 329, 337 (2d Cir.1999); Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584, 594 (10th Cir.1999); Chandler v. James, 180 F.3d 1254, 1276 (11th Cir.1999) (Tjoflat, J., concurring); Jean v. Collins, 155 F.3d 701, 709 (4th Cir.1998) (en banc). But see Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir.1988) (looking to district court opinions for clearly established rights); Hayes v. Long, 72 F.3d 70, 73-74 (8th Cir.1995) (same). Although this circuit has never addressed the issue, I think it highly unlikely that we would ever hold that an unreviewed district court decision could clearly establish a constitutional right. See In re: Executive Office of the President, 215 F.3d at 23 .

I also think the nonappealability concern is too sweeping to coexist with this court’s statement that “courts ordinarily should” follow the Wilson procedure. Slip Op. at 10. That concern applies to all qualified immunity claims before district courts, for at the time of decision district judges have no way of knowing whether a plaintiff will appeal an adverse immunity ruling. But if it applies to all cases, it cannot be a reason for departing from the ordinary way of doing things.

Nor do I share the court’s second concern: that “we would have great difficulty squaring [the Wilson procedure] with statements in three other Supreme Court decisions.” Slip Op. at 11. To begin with, the most recent of those three cases was decided in 1985, see Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d *101 411 (1985), yet twice in 1999 the Supreme Court stated that courts “must” reach the constitutional issue before deciding whether the right allegedly violated was clearly established, see Wilson, 526 U.S. at 609 , 119 S.Ct. 1692 ; Conn, 526 U.S. at 290 , 119 S.Ct. 1292 , and four times in the 1990s the Supreme Court itself followed that procedure. See Wilson, 526 U.S. 603 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 ; Conn, 526 U.S. 286 , 119 S.Ct. 1292 , 143 L.Ed.2d 399 ; Sacramento, 523 U.S. 833 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 ; and Siegert, 500 U.S. 226 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 . Surely it is these more recent cases that reflect the Supreme Court’s current view.

In any event, we have no need to square the Wilson procedure with the earlier decisions, for the Supreme Court has already done so. As my colleagues observe, the earlier “decisions flow from a long line of Supreme Court pronouncements counseling judicial restraint in constitutional deci-sionmaking, the most notable of which is Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47 , 56 S.Ct. 466 , 80 L.Ed. 688 (1936) (Brandéis, J., concurring).” Slip Op. at 12. In Sacramento , however, the Supreme Court expressly held that the Ashwander principle did not apply to the constitutional tort claim at issue there:

[T]he generally sound rule of avoiding determination of constitutional issues does not readily fit the situation here; when liability is claimed on the basis of a constitutional violation, even a finding of qualified immunity requires some determination about the state of constitutional law at the time the officer acted. What is more significant is that if the policy of avoidance were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals.-

Sacramento, 523 U.S. at 841 n. 5, 118 S.Ct. 1708 .

With respect to the court’s concern that the Wilson procedure might require discovery and trial to resolve constitutional questions, thereby depriving defendants of immunity from suit, see Slip Op. at 13, Wilson states that courts “must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all-” 526 U.S. at 609, 119 S.Ct. 1692 (emphasis added). To me, this suggests that courts should begin by asking only whether a plaintiffs allegations, if true, make out a constitutional violation. Siegert , moreover, makes clear that the Court envisioned that the constitutional issues would be resolved as “purely legal” ones. 500 U.S. at 232 , 111 S.Ct. 1789 . Indeed, the primary reason Siegert gave for deciding the constitutional question is precisely the reason this court gives for avoiding it:

A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is “clearly established” at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all. Decision of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits. One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.

Id.

Finally, and most important, consideration of these last three reasons for not following Wilson is precluded by Wilson itself. The Supreme Court could not have spoken in more mandatory terms: “A court evaluating a claim of qualified immunity ‘must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all.’ ” Wil *102 son, 526 U.S. at 609 , 119 S.Ct. 1692 (emphasis added) (quoting Conn, 526 U.S. at 290 , 119 S.Ct. 1292 ). As the Supreme Court has also made clear, “[i]f a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls.... ” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 , 109 S.Ct. 1917 , 104 L.Ed.2d 526 (1989). Only because Wilson does not directly control on these facts do we have discretion to avoid determining whether Kalka has “alleged the deprivation of an actual constitutional right at all.” Wilson, 526 U.S. at 609 , 119 S.Ct. 1692 .