This paper provides an empirical analysis of the impact of the approach to qualified immunity that the Supreme Court first suggested in Siegert v. Gilley and later made mandatory in Saucier v. Katz. That approach dictates that lower courts should resolve constitutional issues prior to deciding whether a government official is shielded from liability by qualified immunity. A primary justification for this sequencing approach is the notion that where courts decide that constitutional law is not clearly established, and thus qualified immunity is available, future defendants can also escape liability for the same behavior. But the empirical analysis provided in this paper indicates that courts forced to resolve constitutional questions that, prior to Siegert and Saucier, they would have avoided, almost uniformly hold that no constitutional violation has occurred.
To the extent that Siegert and Saucier have led to an increase in the articulation of constitutional law, therefore, this increase has solely benefited defendant government officers. Advances in cognitive psychology suggest an explanation for courts’ reluctance to hold that a constitutional violation has occurred yet then grant qualified immunity. Where the law is not clearly established, and thus a defendant will escape liability in any case, it may create cognitive dissonance to hold that a plaintiff’s constitutional rights were violated. In anticipation of the Supreme Court’s revisitation of the sequencing approach in Pearson v. Callahan, this paper suggests that sequencing should not be mandatory so that judges will not be forced to decide constitutional questions against this backdrop of dissonance.