Alaska Employment Law

In deciding a motion for summary judgment in a section 1983 action we are bound to look first to whether there was a constitutional violation and then to whether defendants have qualified immunity, even if the qualified immunity inquiry would resolve the case more easily. See Saucier  v. Katz, 533 U.S. 194, 201 (2001); Meyers, 400 F.3d at 770. Some have  questioned the logic of this “rigid ‘order of battle,’” Brosseau  v. Haugen, 543 U.S. 194, 201-02 (2004) (Breyer, J., concurring), but we are bound to follow it until further notice. We are free to muse, however, that the Saucier rule may lead to the publication of a lot of bad constitutional law that is, effectively, cert-proof. If a court of appeals holds that a constitutional right exists under Saucier in step one, but that the right is not clearly established (as we do in this case), then neither party will have both the incentive and the standing to petition for review of the constitutional ruling. It may be many years before another case arises that presents the same issue in a form ripe for review by the Supreme Court. See generally Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C. L. Rev. 847 (2005).

The panel proceeded to hold that Due Process guaranteed the car owner notice before the City towed her vehicle, but that that right had not been “clearly established.”  The officer, thus, was  entitled to qualified immunity.  The private towing company could not assert qualified immunity (a defense “generally not available to private defendants in section 1983 suit”), but did succeed on its “good faith defense” - that its employees were acting under the apparently lawful direction and authority of the city and police officer. 

Clement v. City of Glendale, 2008 WL _______  n.1 (9th Cir. Mar. 11, 2008)(per Kozinski, with Kleinfeld and Tallman).