Ellie Greenberger | Out-of-Circuit Comparisons for Clearly Established Constitutional Rights

BACKGROUND

In 2017, Clarissa Gilmore visited her incarcerated husband at Smith State Prison in Glenville, Georgia. Gilmore v. GA Dep’t of Corrections, 111 F.4th 1118, 1124 (11th Cir. 2024). Upon arrival, Gilmore proceeded through three types of searches: a pat-down, a metal detector wand, and an electromagnetic-radiation body scan. Id. Gilmore had encountered these three screenings during her previous visits to the prison. Id. However, on this occasion, two correctional officers interrupted her visit with her husband and took her to an empty bathroom insisting that she sign a strip-search approval form. Id.  The officers informed Gilmore that if she didn’t consent, she “would be sent to jail and would be unable to visit her husband at the prison again.” Id. Under such pressure, Gilmore signed the form, and the correctional officers conducted the strip search. Id. Gilmore sued, claiming that the officers violated her Fourth Amendment right to be free from unreasonable searches and seizures. Id. at 1125. In return, the officers argued that they were protected by qualified immunity. Id.

“A constitutional violation does not itself defeat qualified immunity. Rather, Gilmore can overcome the defense of qualified immunity only if prison visitors’ Fourth Amendment right to be free from strip searches without reasonable suspicion was ‘clearly established’ at the time of the search.” Id. at 1133. While the Supreme Court and Eleventh Circuit authorize blanket strip searches for prisoners for security reasons, both courts have been silent on whether blanket strip searches are allowed for prison visitors. Id. at 1134. The district court granted summary judgment, finding that because the search did not violate a “clearly established” law, the officers were entitled to qualified immunity. Id. at 1123. While the Eleventh Circuit concluded that the search violated Gilmore’s Fourth Amendment rights, the Eleventh Circuit affirmed, holding that the lack of precedent from the Eleventh Circuit and Supreme Court means that the law was not “clearly established” when the strip search occurred. Id. at 1136.

ISSUE

For the purposes of qualified immunity, do out-of-circuit rulings create a robust consensus of persuasive authority sufficient to determine that the law was “clearly established”?

THE SPLIT

The Supreme Court has suggested that “a robust consensus of cases of persuasive authority may place the statutory or constitutional question beyond debate.” Id. at 1135 (internal quotations omitted). In Gilmore, the Eleventh Circuit acknowledges that seven other circuits require reasonable suspicion for a strip search of a prison visitor. Id. However, the court held that they will not look to persuasive authority to determine that the law was “clearly established.” Id. at 1136. Thus, while other circuits may look beyond their own binding precedent , the Eleventh Circuit does not. In fact, nearly all other circuits have allowed the justices to look beyond the confines of their binding precedent in determining whether a law was clearly established. 

First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits

The First Circuit rejected the argument that a law itself is not clearly established just because the court had not recognized a specific doctrine regarding that law. Maldonado v. Fontanes, 568 F.3d 263, 271 (1st Cir. 2009). There, the court reasoned that, at the time of the mayor’s conduct, three other circuits had ruled that killing a person’s pet dog or cat was considered a seizure under the Fourth Amendment. Id. In contrast, no other circuit court had held otherwise. Id. The court concluded that an official in the mayor’s position would not have reasonably concluded that his actions were not a violation of the Fourth Amendment. Id. at 272.

The Second Circuit in Terebesi v. Torreso said that “[e]ven if this court has not explicitly held a course of conduct to be unconstitutional, we may nonetheless treat the law as clearly established if decisions from this or other circuits clearly foreshadow a particular ruling on the issue.” 764 F.3d 217, 231 (2d Cir. 2014) (internal quotations omitted).

The Third Circuit first looks to whether Supreme Court precedent exists. L.R. v. School Dist. of Philadelphia, 836 F.3d 235, 247–48 (3d Cir. 2016). The court stated, “[e]ven if none exists, it may be possible that a robust consensus of cases of persuasive authority in the Court[s] of Appeals could clearly establish a right for purposes of qualified immunity.” Id. at 248 (internal quotations omitted). The court reinforced their analysis with cases from the Seventh, Ninth, and Tenth Circuits to conclude that the individual was on notice that “permitting a kindergarten student to leave his classroom with an unidentified adult could lead to a deprivation of that student’s substantive due process rights.” Id. at 249–50.

In Booker v. South Carolina Department of Corrections, the Fourth Circuit held that a right to file a prison grievance free from retaliation was clearly established based on a robust consensus of persuasive authority by looking toward the Second, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuits. 855 F.3d 533, 544 (4th Cir. 2017). The court, like many other circuits, first looked to the Supreme Court and its own circuit precedent. Id. at 543–44. The court believed that there was a “strong signal that officials may not retaliate against inmates for filing grievances,” but turned to cases outside its own circuit to determine if the law was “clearly established.” Id. at 544.

The Fifth Circuit differs in its application of finding a robust consensus of persuasive authority. In Morrow v. Meachum, the court reiterated its precedent that recognition of the state-created danger doctrine in six circuits was insufficient to create a robust consensus. 917 F.3d 870, 879–80 (5th Cir. 2019) (citing McClendon v. City of Columbia, 305 F.3d 314, 330 (5th Cir. 2002)). The court stated that because the circuits were not “unanimous in its ‘contours or its application,’” even though six circuits had recognized the doctrine, this was insufficient to create a robust consensus. Id. However, in Ramirez v. Killian, the court did find a robust consensus that an officer may not kill a pet dog unless he reasonably believes the dog poses a threat. 113 F.4th 415, 427 (5th Cir. 2024). In fact, the court stated that it was almost the last among the circuits to recognize the rule, and thus there was a robust consensus. Id. It noted that each sister circuit had addressed the same issue—all but the Eleventh Circuit. Id.

The Sixth Circuit, like the Fifth, limits looking beyond its own precedent. In Walton v. City of Southfield, the court held that it is only in extraordinary cases where it may look beyond the precedent of the Supreme Court and the Sixth Circuit. 995 F.2d 1331,1336 (6th Cir. 1993), superseded by statute on other grounds, Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 407–08 (6th Cir. 2007). If it is an extraordinary case, the decisions of other courts have to “both point unmistakably to the unconstitutionality of the conduct complained of and [be] so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.” Id. In this case, because there was a circuit split regarding the same question of law, the court concluded that there was no clearly established right. Id. at 1337–39. 

The Seventh Circuit, when looking to determine if there is a clearly established principle of law, said that it will look toward all relevant case law to see if there was a clear trend in the case law. Cleveland-Purdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989). The court reasoned that this approach prevents an official from escaping liability just because a jurisdiction has not had an opportunity to address an issue. Id. In this case, the court looked to three cases from the Fifth, Second, and Eighth Circuits to determine that a failure to correct systematic deficiencies in the delivery of health care services at the prison was a clearly established law. Id. at 431–32.

In Norfleet v. Arkansas Department of Human Services, the Eighth Circuit stated that it uses a flexible standard. 989 F.2d 289, 291 (8th Cir. 1993). The Eighth Circuit held that in the absence of binding precedent from the Supreme Court, the court “should look at all decisions of state courts, other circuits, and district courts . . . .” Id. In this case, the Eighth Circuit looked to several other circuits that had interpreted the scope of due process rights of individuals in foster care to conclude that the state had an obligation to provide adequate medical care, protection, and supervision to those in foster care. Id. at 293.

The Ninth Circuit in Boyd v. Benton County explained that an absence of binding precedent allows the court to look at any decisional law available, including decisions of state courts, other circuits and district courts. 374 F.3d 773, 781 (9th Cir. 2004). In this case, the court looked to two circuit courts and one state court to address whether law in relation to the use of flash-bangs was clearly established. Id. The court reasoned that because the cases it looked at had all held that the use of flash-bang devices was reasonable, the officers were not on notice that their use of flash-bangs was unconstitutional. Id. at 783–84.

In Cummings v. Dean, the Tenth Circuit held that the plaintiff must ordinarily show Supreme Court or Tenth Circuit decisions on point. 913 F.3d 1227, 1239 (10th Cir. 2019). The court also suggested that authority from other circuits can be used to demonstrate that the law was clearly established. Id. In this case, the court failed to find the law was clearly established because it looked toward state law when the issue before the court was a violation of federal law. Id. at 1242. Additionally, the court clarified that a single unpublished out-of-circuit district court opinion was not sufficient to establish that the law was clearly established. Id. at 1244.

LOOKING FORWARD

The Eleventh Circuit is remiss to allow an officer’s conduct to retain the benefit of qualified immunity simply because that particular circuit has not had the opportunity to address the issue. It seems judicially inefficient to force every circuit to rule on the same issue of law to ensure that everyone in the country is on notice for the impropriety of certain actions and behaviors. While making sure that individuals have notice is important, the results of these varying precedents are inequitable. In Gilmore, the court agreed with the other seven circuits that the officer’s behavior violated Gilmore’s Fourth Amendment Rights. However, regardless of the fact that the issue had been addressed in seven other circuits, the people in Georgia and Florida had to wait until now to bring this claim without being barred from recovery by qualified immunity.

The idea that an officer is only on notice for the laws of a single circuit ignores the officer’s reality. First, officers are rarely trained on their own circuit’s case law. Thus, limiting precedent to a single circuit has no real effect on the actual knowledge a police officer may have. Despite their lack of legal expertise, increased access to information online and the ease of communication transnationally should realistically enable an officer to be on notice for things outside of one geographic area. As to Gilmore, it would have made more sense for the Eleventh Circuit to take a middle ground approach by mirroring the reticence of the Fifth and Sixth Circuit while not strictly prohibiting the use of persuasive authority. Instead, the Eleventh Circuit’s departure from the majority of circuits calls into question whether other circuits will similarly shift away from allowing out-of-circuit precedent to determine whether a law is clearly established.

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