Souter, J., dissenting
SUPREME COURT OF THE UNITED STATES
 No. 99-1977
 DONALD SAUCIER, PETITIONER v. ELLIOT M. KATZ
and IN DEFENSE OF ANIMALS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 18, 2001]
Justice Souter, concurring in part and dissenting in part.
I join Parts I and II of the Court's opinion, but would remand the case for application of
the qualified immunity standard.

Ginsburg, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
 No. 99-1977
 DONALD SAUCIER, PETITIONER v. ELLIOT M. KATZ
and IN DEFENSE OF ANIMALS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 18, 2001]
Justice Ginsburg, with whom Justice Stevens and Justice Breyer join, concurring in the
judgment.
In Graham v. Connor, 490 U.S. 386 (1989), the Court announced and described an
"objective reasonableness" standard to govern all claims that law enforcement officers, in
violation of the Fourth Amendment, used excessive force in the course of an arrest.
Measuring material facts of this case that are not subject to genuine dispute against the
Graham standard, I conclude that officer Saucier's motion for summary judgment should
have been granted. I therefore concur in the Court's judgment. However, I would not
travel the complex route the Court lays out for lower courts.
Application of the Graham objective reasonableness standard is both necessary, under
currently governing precedent, and, in my view, sufficient to resolve cases of this genre.
The Court today tacks on to a Graham inquiry a second, overlapping objective
reasonableness inquiry purportedly demanded by qualified immunity doctrine. The two-
part test today's decision imposes holds large potential to confuse. Endeavors to bring the
Court's abstract instructions down to earth, I suspect, will bear out what lower courts
have already observed­paradigmatically, the determination of police misconduct in
excessive force cases and the availability of qualified immunity both hinge on the same
question: Taking into account the particular circumstances confronting the defendant
officer, could a reasonable officer, identically situated, have believed the force employed
was lawful? See, e.g., Roy v. Inhabitants of City of Lewiston, 42 F.3d 691, 695 (CA1
1994); Rowland v. Perry, 41 F.3d 167, 173 (CA4 1994). Nothing more and nothing else
need be answered in this case.
I All claims that law enforcement officers have used excessive force in the course of an
arrest, Graham made explicit, are to be judged "under the Fourth Amendment and its
`reasonableness' standard, rather than under a `substantive due process' approach." 490
U.S., at 395. Underlying intent or motive are not relevant to the inquiry; rather, "the
question is whether the officers' actions are `objectively reasonable' in light of the facts
and circumstances confronting them." Id., at 397. The proper perspective in judging an
excessive force claim, Graham explained, is that of "a reasonable officer on the scene"
and "at the moment" force was employed. Id., at 396. "Not every push or shove," the
Court cautioned, "even if it may later seem unnecessary in the peace of a judge's
chambers, violates the Fourth Amendment." Ibid. (citation omitted). "The calculus of
reasonableness" must allow for the reality that "police officers are often forced to make
split-second judgments" about the force a particular situation warrants "in circumstances
that are tense, uncertain, and rapidly evolving." Id., at 396-397.

SUPREME COURT OF THE UNITED STATES
SAUCIER v. KATZ et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
 No. 99-1977. Argued March 20, 2001­Decided June 18, 2001
 Respondent Katz, president of respondent In Defense of Animals, filed a suit pursuant to
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, against, inter alios,
petitioner Saucier, a military policeman. Katz alleged, among other things, that Saucier
had violated his Fourth Amendment rights by using excessive force in arresting him
while he protested during Vice President Gore's speech at a San Francisco army base.
The District Court declined to grant Saucier summary judgment on qualified immunity
grounds. In affirming, the Ninth Circuit made a two-part qualified immunity inquiry.
First, it found that the law governing Saucier's conduct was clearly established when the
incident occurred. It therefore moved to a second step: to determine if a reasonable
officer could have believed, in light of the clearly established law, that his conduct was
lawful. The court concluded that this step and the merits of a Fourth Amendment
excessive force claim are identical, since both concern the objective reasonableness of the
officer's conduct in light of the circumstances the officer faced at the scene. Thus, it
found, summary judgment based on qualified immunity was inappropriate.
Held:
1. A qualified immunity ruling requires an analysis not susceptible of fusion with the
question whether unreasonable force was used in making the arrest. The Ninth Circuit's
approach cannot be reconciled with Anderson v. Creighton, 483 U.S. 635. A qualified
immunity defense must be considered in proper sequence. A ruling should be made early
in the proceedings so that the cost and expenses of trial are avoided where the defense is
dispositive. Such immunity is an entitlement not to stand trial, not a defense from
liability. Mitchell v. Forsyth, 472 U.S. 511, 526. The initial inquiry is whether a
constitutional right would have been violated on the facts alleged, for if no right would
have been violated, there is no need for further inquiry into immunity. However, if a
violation could be made out on a favorable view of the parties' submissions, the next,
sequential step is whether the right was clearly established. This inquiry must be
undertaken in light of the case's specific context, not as a broad general proposition. The
relevant, dispositive inquiry is whether it would be clear to a reasonable officer that the
conduct was unlawful in the situation he confronted. See Wilson v. Layne, 526 U.S. 603,
615. The Ninth Circuit's approach­to deny summary judgment if a material issue of fact
remains on the excessive force claim­could undermine the goal of qualified immunity to
avoid excessive disruption of government and permit the resolution of many insubstantial
claims on summary judgment. Harlow v. Fitzgerald, 457 U.S. 800, 818. If the law did not
put the officer on notice that his conduct would be clearly unlawful, summary judgment
based on qualified immunity is appropriate. The Ninth Circuit concluded that qualified
immunity is duplicative in an excessive force case, thus eliminating the need for the
second step. In holding that qualified immunity applied in the Fourth Amendment context
just as it would for any other official misconduct claim, the Anderson Court rejected the
argument that there is no distinction between the reasonableness standard for warrantless

SUPREME COURT OF THE UNITED STATES
SAUCIER v. KATZ et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
 No. 99-1977. Argued March 20, 2001­Decided June 18, 2001
 Respondent Katz, president of respondent In Defense of Animals, filed a suit pursuant to
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, against, inter alios,
petitioner Saucier, a military policeman. Katz alleged, among other things, that Saucier
had violated his Fourth Amendment rights by using excessive force in arresting him
while he protested during Vice President Gore's speech at a San Francisco army base.
The District Court declined to grant Saucier summary judgment on qualified immunity
grounds. In affirming, the Ninth Circuit made a two-part qualified immunity inquiry.
First, it found that the law governing Saucier's conduct was clearly established when the
incident occurred. It therefore moved to a second step: to determine if a reasonable
officer could have believed, in light of the clearly established law, that his conduct was
lawful. The court concluded that this step and the merits of a Fourth Amendment
excessive force claim are identical, since both concern the objective reasonableness of the
officer's conduct in light of the circumstances the officer faced at the scene. Thus, it
found, summary judgment based on qualified immunity was inappropriate.
Held:
1. A qualified immunity ruling requires an analysis not susceptible of fusion with the
question whether unreasonable force was used in making the arrest. The Ninth Circuit's
approach cannot be reconciled with Anderson v. Creighton, 483 U.S. 635. A qualified
immunity defense must be considered in proper sequence. A ruling should be made early
in the proceedings so that the cost and expenses of trial are avoided where the defense is
dispositive. Such immunity is an entitlement not to stand trial, not a defense from
liability. Mitchell v. Forsyth, 472 U.S. 511, 526. The initial inquiry is whether a
constitutional right would have been violated on the facts alleged, for if no right would
have been violated, there is no need for further inquiry into immunity. However, if a
violation could be made out on a favorable view of the parties' submissions, the next,
sequential step is whether the right was clearly established. This inquiry must be
undertaken in light of the case's specific context, not as a broad general proposition. The
relevant, dispositive inquiry is whether it would be clear to a reasonable officer that the
conduct was unlawful in the situation he confronted. See Wilson v. Layne, 526 U.S. 603,
615. The Ninth Circuit's approach­to deny summary judgment if a material issue of fact
remains on the excessive force claim­could undermine the goal of qualified immunity to
avoid excessive disruption of government and permit the resolution of many insubstantial
claims on summary judgment. Harlow v. Fitzgerald, 457 U.S. 800, 818. If the law did not
put the officer on notice that his conduct would be clearly unlawful, summary judgment
based on qualified immunity is appropriate. The Ninth Circuit concluded that qualified
immunity is duplicative in an excessive force case, thus eliminating the need for the
second step. In holding that qualified immunity applied in the Fourth Amendment context
just as it would for any other official misconduct claim, the Anderson Court rejected the
argument that there is no distinction between the reasonableness standard for warrantless