Abstract

This article examines and defends a procedural rule that figures prominently in constitutional tort litigation, has drawn sharp criticism from the federal judiciary, and seems to have lost the support of at least four sitting Supreme Court Justices. In order to recover damages, plaintiffs must not only prove a constitutional violation but also fend off assertions of official immunity. In ruling on motions to dismiss the complaint and motions for summary judgment, a preliminary question is the sequence in which the two issues should be addressed-a problem the Justices call the "order-of-battle." Morse v. Frederick, the "Bong Hits Jesus" case, illustrates the issue.

This Article examines the constitutional avoidance objection to Saucier and finds it wanting. Saucier's critics invoke constitutional avoidance as a kind of mantra that suffices to advance their cause without regard to the context in which the occasion for avoidance arises. But constitutional avoidance is a more complex and nuanced policy than they suppose it to be. The Court has never treated avoidance as an absolute; it is a policy aimed at specific objectives, and these nearly always compete with other goals. The strength of the avoidance argument vis-a-vis other policies varies depending on context, and it is especially weak in constitutional tort law. The order-of-battle issue presents the avoidance theme in a distinctive setting, and resolving it requires careful attention to the interaction between constitutional avoidance and constitutional torts. The aims of constitutional tort law include vindicating constitutional rights and deterring constitutional violations. Allowing lower courts discretion to decide on a case-by-case basis whether to apply the avoidance policyas Justice Breyer proposes-would systematically undermine those goals. This is too high a price to pay for the minimal benefits of avoidance in this context

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