Yesterday’s decisions in Plumhoff v. Rickard and Wood v. Moss addressed different claims on the merits but shared an important procedural issue. In Plumhoff, the Court reviewed a violent car chase and an excessive force claim under the Fourth Amendment, while Wood involved an allegation that secret service agents engaged in viewpoint discrimination against anti-Bush protestors. Both cases involved findings of qualified immunity, but only one of the cases (Plumhoff) expressly went on to opine on the merits. This intriguing pair of decisions illustrates the Court’s varying and often unexplained willingness to reach the merits when finding qualified immunity.
In recent years, the Court has taken various positions on when to reach the merits in cases finding qualified immunity. For a while, the Court called for always reaching the merits, lest constitutional law go undeveloped. But the Court later made the merits optional. And, even more recently, the Court appeared to suggest that reaching the merits was disfavored. As the Court memorably put it
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We see similar conflation, arguably in the other direction, two years ago in Reichle. Justice Thomas wrote for the Court and focused entirely on clearly established and the state of Tenth Circuit law. Justice Ginsburg concurred in the judgment and again seemed to talk a lot about the merits of this case (the particular defendant, causation, etc.).
I wonder if the different procedural postures matters–Plumhoff was on summary judgment, while Wood was on 12(b)(6).
Posted by: Howard Wasserman | May 29, 2014 11:38:51 AM