Yesterday, in Los Angeles County v. Rettele, the Supreme Court reversed the denial of qualified immunity by the Ninth Circuit to law enforcement officers sued for unreasonableness in the conduct of a search where they were looking for African-Americans in a house where everyone there was Caucasian.
The Court concluded there was no constitutional violation.
In a concurring opinion, Justice Stevens suggested three items of interest: (1) he bashed the Ninth Circuit for deciding the case in an unpublished opinion, and (2) he thought it was obvious that the rights at issue were not clearly established, not even on the authorities the Ninth Circuit cited, and (3) he continues to object to the idea that qualified immunity should be decided by always going first to the merits question.
On the latter point, I think that some opponents of qualified immunity would disagree, that the law never gets clearly established unless somebody rules on the merits every now and then.
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