Los Angeles County v. Rettele/Concurrence Stevens

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of Appeals' unpublished opinion established a genuine issue of material fact as to whether the seizure violated respondents’ Fourth Amendment rights, see ante, at 612; (2) whether the officers were nevertheless entitled to qualified immunity because the right was not clearly established. The fact that the judges on the Court of Appeals disagreed on both questions convinces me that they should not have announced their decision in an unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F.3d 873 (CA9 1994). As Judge Cowen's discussion of Franklin demonstrates, that case surely does not clearly establish the unconstitutionality of the officers' conduct. Consequently, regardless of the proper answer to the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so. See County of Sacramento v. Lewis, 523 U.S. 833, 859 (1998) (Stevens, J., concurring in judgment). Accordingly, I concur in the Court's judgment.