CAMRETA v. GREENE

Opinion of the Court

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preliminary print of the United States Reports. Readers are requested to
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SUPREME COURT OF THE UNITED STATES
_________________

Nos. 09–1454 and 09–1478

_________________

BOB CAMRETA, PETITIONER
09–1454
v.
SARAH GREENE, PERSONALLY AND AS NEXT FRIEND OF
S. G., A MINOR, AND K. G., A MINOR

JAMES ALFORD, DEPUTY SHERIFF, DESCHUTES
COUNTY, OREGON, PETITIONER
09–1478
v.
SARAH GREENE, PERSONALLY AND AS NEXT FRIEND OF
S. G., A MINOR, AND K. G., A MINOR

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[May 26, 2011]

JUSTICE KAGAN delivered the opinion of the Court.

Almost a decade ago, a state child protective services worker and a county deputy sheriff interviewed a girl at her elementary school in Oregon about allegations that her father had sexually abused her. The girl’s mother subsequently sued the government officials on the child’s behalf for damages under Rev. Stat. §1979, 42 U. S. C. §1983, claiming that the interview infringed the Fourth Amendment. The United States Court of Appeals for the Ninth Circuit agreed, ruling that the officials had violated the Constitution by failing to obtain a warrant to conduct the interview. But the Court of Appeals further held that qualified immunity shielded the officials from monetary liability because the constitutional right at issue was not clearly established under existing law.

The two officials sought this Court’s review of the Ninth Circuit’s ruling on the Fourth Amendment. We granted their petitions to examine two questions. First, may government officials who prevail on grounds of qualified immunity obtain our review of a court of appeals’ decision that their conduct violated the Constitution? And second, if we may consider cases in this procedural posture, did the Ninth Circuit correctly determine that this interview breached the Fourth Amendment?

We conclude that this Court generally may review a lower court’s constitutional ruling at the behest of a government official granted immunity. But we may not do so in this case for reasons peculiar to it. The case has become moot because the child has grown up and moved across the country, and so will never again be subject to the Oregon in-school interviewing practices whose constitutionality is at issue. We therefore do not reach the Fourth Amendment question in this case. In line with our normal practice when mootness frustrates a party’s right to appeal, see United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950), we vacate the part of the Ninth Circuit’s opinion that decided the Fourth Amendment issue.

I

In February 2003, police arrested Nimrod Greene for suspected sexual abuse of a young boy unrelated to him. During the investigation of that offense, the boy’s parents told police that they suspected Greene of molesting his 9year-old daughter S. G. The police reported this information to the Oregon Department of Human Services, which assigned petitioner Bob Camreta, a child protective services caseworker, to assess S. G.’s safety. Several days later, Camreta, accompanied by petitioner James Alford, a Deschutes County deputy sheriff, went to S. G.’s elementary school and interviewed her about the allegations. Camreta and Alford did not have a warrant, nor had they obtained parental consent to conduct the interview. Although S. G. at first denied that her father had molested her, she eventually stated that she had been abused. Greene was indicted and stood trial for sexually abusing S. G., but the jury failed to reach a verdict and the charges were later dismissed.

Respondent Sarah Greene, S. G.’s mother, subsequently sued Camreta and Alford on S. G.’s behalf 1 for damages under 42 U. S. C. §1983, which authorizes suits against state officials for violations of constitutional rights. S. G. alleged that the officials’ in-school interview had breached the Fourth Amendment’s proscription on unreasonable seizures.2

The District Court granted summary judgment to Camreta and Alford, and the Ninth Circuit affirmed. The Court of Appeals first ruled that the interview violated S. G.’s rights because Camreta and Alford had “seize[d] and interrogate[d] S. G. in the absence of a warrant, a court order, exigent circumstances, or parental consent.” 588 F. 3d 1011, 1030 (2009) (footnote omitted). But the court further held that the officials were entitled to qualified immunity from damages liability because no clearly established law had warned them of the illegality of their conduct. Id., at 1031–1033.

The Ninth Circuit explained why it had chosen to rule on the merits of the constitutional claim, rather than merely hold that the officials were immune from suit. By addressing the legality of the interview, the court said, it could “provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment.” Id., at 1022. That guidance came in no uncertain terms: “[G]overnment officials investigating allegations of child abuse,” the court warned, “should cease operating on the assumption that a ‘special need’ automatically justifies dispensing with traditional Fourth Amendment protections in this context.” Id., at 1033.

Although the judgment entered was in their favor, Camreta and Alford petitioned this Court to review the Ninth Circuit’s ruling that their conduct violated the Fourth Amendment. S. G. declined to cross-petition for review of the decision that the officials have immunity. We granted certiorari. 562 U. S. ___ (2010).

II

We first consider our ability to act on a petition brought by government officials who have won final judgment on grounds of qualified immunity, but who object to an appellate court’s ruling that they violated the plaintiff’s constitutional rights. Camreta and Alford are, without doubt, prevailing parties. The Ninth Circuit’s decision shielded them from monetary liability, and S. G. chose not to contest that ruling. So whatever else follows, they will not have to pay S. G. the damages she sought. The question we confront is whether we may nonetheless review the Court of Appeals’ holding that the officials violated the Constitution.

The statute governing this Court’s jurisdiction authorizes us to adjudicate a case in this posture, and S. G. does not contend otherwise. The relevant provision confers unqualified power on this Court to grant certiorari “upon the petition of any party.” 28 U. S. C. §1254(1) (emphasis added). That language covers petitions brought by litigants who have prevailed, as well as those who have lost, in the court below. See E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett, Supreme Court Practice 87 (9th ed. 2007) (hereinafter Stern & Gressman).

S. G., however, alleges two impediments to our exercise of statutory authority here, one constitutional and the other prudential. First, she claims that Article III bars review because petitions submitted by immunized officials present no case or controversy. See Brief for Respondent 31–39. Second, she argues that our settled practice of declining to hear appeals by prevailing parties should apply with full force when officials have obtained immunity. See id., at 24–27. We disagree on both counts.

A

Article III of the Constitution grants this Court authority to adjudicate legal disputes only in the context of “Cases” or “Controversies.” To enforce this limitation, we demand that litigants demonstrate a “personal stake” in the suit. Summers v. Earth Island Institute, 555 U. S. 488, ___ (2009) (slip op., at 4) (internal quotation marks omitted); see also United States Parole Comm’n v. Geraghty, 445 U. S. 388, 395–397 (1980). The party invoking the Court’s authority has such a stake when three conditions are satisfied: The petitioner must show that he has “suffered an injury in fact” that is caused by “the conduct complained of” and that “will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992) (internal quotation marks omitted). And the opposing party also must have an ongoing interest in the dispute, so that the case features “that concrete adverseness which sharpens the presentation of issues.” Los Angeles v. Lyons, 461 U. S. 95, 101 (1983) (internal quotation marks omitted). To ensure a case remains “fit for federal-court adjudication,” the parties must have the necessary stake not only at the outset of litigation, but throughout its course. Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997). We have previously recognized that an appeal brought by a prevailing party may satisfy Article III’s case-orcontroversy requirement. See Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 332–336 (1980). Indeed, we have twice before allowed a party for whom judgment was entered to challenge an unfavorable lower court ruling. See ibid.; Electrical Fittings Corp. v. Thomas & Betts Co., 307 U. S. 241 (1939).3 In that context as in others, we stated, the critical question under Article III is whether the litigant retains the necessary personal stake in the appeal. Deposit Guaranty, 445 U. S., at 334. As we will explain, a court will usually invoke rules of “federal appellate practice” to decline review of a prevailing party’s challenge even when he has the requisite stake. Id., at 333; see infra, at 8. But in such a case, Article III is not what poses the bar; these rules of practice “d[o] not have [their] source in the jurisdictional limitations” of the Constitution. Deposit Guaranty, 445 U. S., at 333–334. So long as the litigants possess the personal stake discussed above, an appeal presents a case or controversy, no matter that the appealing party was the prevailing party below.

This Article III standard often will be met when immunized officials seek to challenge a ruling that their conduct violated the Constitution. That is not because a court has made a retrospective judgment about the lawfulness of the officials’ behavior, for that judgment is unaccompanied by any personal liability. Rather, it is because the judgment may have prospective effect on the parties. The court in such a case says: “Although this official is immune from damages today, what he did violates the Constitution and he or anyone else who does that thing again will be personally liable.” If the official regularly engages in that conduct as part of his job (as Camreta does), he suffers injury caused by the adverse constitutional ruling. So long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action. Cf. id., at 337–338 (discussing prevailing party’s stake in a ruling’s prospective effects). Only by overturning the ruling on appeal can the official gain clearance to engage in the conduct in the future. He thus can demonstrate, as we demand, injury, causation, and redressability.4 And conversely, if the person who initially brought the suit may again be subject to the challenged conduct, she has a stake in preserving the court’s holding. See Erie v. Pap’s A. M., 529 U. S. 277, 287–289 (2000); Honig v. Doe, 484 U. S. 305, 318–323 (1988); cf. Lyons, 461 U. S., at 111 (examining whether the plaintiff had shown “a sufficient likelihood that he will again be wronged in a similar way”). Only if the ruling remains good law will she have ongoing protection from the practice.

We therefore reject S. G.’s view that Article III bars us from adjudicating any and all challenges brought by government officials who have received immunity below. That the victor has filed the appeal does not deprive us of jurisdiction. The parties in such cases may yet have a sufficient “interest in the outcome of [a litigated] issue” to present a case or controversy. Deposit Guaranty, 445 U. S., at 336, n. 7. B

Article III aside, an important question of judicial policy remains. As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed us to do so. See, e.g., Gunn v. University Comm. to End War in Viet Nam, 399 U. S. 383, 390, n. 5 (1970); New York Telephone Co. v. Maltbie, 291 U. S. 645, 646 (1934) (per curiam); see also Bunting v. Mellen, 541 U. S. 1019, 1023 (2004) (SCALIA, J., dissenting from denial of certiorari) (“[O]ur practice reflects a ‘settled refusal’ to entertain an appeal by a party on an issue as to which he prevailed” (quoting Stern & Gressman 79 (8th ed. 2002))). Our resources are not well spent superintending each word a lower court utters en route to a final judgment in the petitioning party’s favor. See California v. Rooney, 483 U. S. 307, 311 (1987) (per curiam) (“[T]hat the Court of Appeal reached its decision through analysis different than this Court might have used does not make it appropriate . . . for the prevailing party to request us to review it”). We therefore have adhered with some rigor to the principle that “[t]his Court reviews judgments, not statements in opinions.” Ibid. (internal quotation marks omitted). On the few occasions when we have departed from that principle, we have pointed to a “policy reaso[n] . . . of sufficient importance to allow an appeal” by the winner below. Deposit Guaranty, 445 U. S., at 336, n. 7.

We think just such a reason places qualified immunity cases in a special category when it comes to this Court’s review of appeals brought by winners. The constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or “statements in opinions.” Rooney, 483 U. S., at 311 (internal quotation marks omitted); see Bunting, 541 U. S., at 1023 (SCALIA, J., dissenting from denial of certiorari) (stating that such a determination is “not mere dictum in the ordinary sense”). They are rulings that have a significant future effect on the conduct of public officials—both the prevailing parties and their co-workers—and the policies of the government units to which they belong. See supra, at 6–7. And more: they are rulings self-consciously designed to produce this effect, by establishing controlling law and preventing invocations of immunity in later cases. And still more: they are rulings designed this way with this Court’s permission, to promote clarity—and observance—of constitutional rules. We describe in more detail below these features of the qualified immunity world and why they came to be. We hold that taken together, they support bending our usual rule to permit consideration of immunized officials’ petitions.

To begin, then, with the nature of these suits: Under §1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure that fear of liability will not “unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton, 483 U. S. 635, 638 (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). That means a court can often avoid ruling on the plaintiff’s claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiff’s claim, even though novel or otherwise unsettled, in fact has merit.

And indeed, our usual adjudicatory rules suggest that a court should forbear resolving this issue. After all, a “longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 445 (1988); see also Ashwander v. TVA, 297 U. S. 288, 346–347 (1936) (Brandeis, J., concurring). In this category of qualified immunity cases, a court can enter judgment without ever ruling on the (perhaps difficult) constitutional claim the plaintiff has raised. Small wonder, then, that a court might leave that issue for another day.

But we have long recognized that this day may never come—that our regular policy of avoidance sometimes does not fit the qualified immunity situation because it threatens to leave standards of official conduct permanently in limbo. County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998). Consider a plausible but unsettled constitutional claim asserted against a government official in a suit for money damages. The court does not resolve the claim because the official has immunity. He thus persists in the challenged practice; he knows that he can avoid liability in any future damages action, because the law has still not been clearly established. Another plaintiff brings suit, and another court both awards immunity and bypasses the claim. And again, and again, and again. So the moment of decision does not arrive.5 Courts fail to clarify uncertain questions, fail to address novel claims, fail to give guidance to officials about how to comply with legal requirements. See, e.g., ibid.; Wilson v. Layne, 526 U. S. 603, 609 (1999). Qualified immunity thus may frustrate “the development of constitutional precedent” and the promotion of law-abiding behavior. Pearson v. Callahan, 555 U. S. 223, 237 (2009).

For this reason, we have permitted lower courts to avoid avoidance—that is, to determine whether a right exists before examining whether it was clearly established. See, e.g., ibid.; Lewis, 523 U. S., at 841, n. 5. Indeed, for some time we required courts considering qualified immunity claims to first address the constitutional question, so as to promote “the law’s elaboration from case to case.” Saucier v. Katz, 533 U. S. 194, 201 (2001). More recently, we have left this matter to the discretion of lower courts, and indeed detailed a range of circumstances in which courts should address only the immunity question. See Pearson, 555 U. S., at 236–242. In general, courts should think hard, and then think hard again, before turning small cases into large ones. But it remains true that following the two-step sequence—defining constitutional rights and only then conferring immunity—is sometimes beneficial to clarify the legal standards governing public officials. Id., at 236; see id., at 236–242 (discussing factors courts should consider in making this determination).

Here, the Court of Appeals followed exactly this twostep process, for exactly the reasons we have said may in select circumstances make it “advantageous.” Id., at 242. The court, as noted earlier, explained that it was “address[ing] both prongs of the qualified immunity inquiry . . . to provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment.” 588 F. 3d, at 1022. To that end, the court adopted constitutional standards to govern all inschool interviews of suspected child abuse victims. See id., at 1030. And the court specifically instructed government officials to follow those standards going forward—to “cease operating on the assumption” that warrantless interviews are permitted. See id., at 1033. With the law thus clearly established, officials who conduct this kind of interview will not receive immunity in the Ninth Circuit. And the State of Oregon has done just what we would expect in the wake of the court’s decision: It has provided revised legal advice, consonant with the Ninth Circuit’s ruling, to child protective services workers wishing to interview children in schools. See Tr. of Oral Arg. 14. The court thus accomplished what it set out to do: settle a question of constitutional law and thereby guide the conduct of officials.

Given its purpose and effect, such a decision is reviewable in this Court at the behest of an immunized official. No mere dictum, a constitutional ruling preparatory to a grant of immunity creates law that governs the official’s behavior. If our usual rule pertaining to prevailing parties applied, the official would “fac[e] an unenviable choice”: He must either acquiesce in a ruling he had no opportunity to contest in this Court, or “defy the views of the lower court, adhere to practices that have been declared illegal, and thus invite new suits and potential punitive damages.” Pearson, 555 U. S., at 240–241 (internal quotation marks and brackets omitted). And if our usual bar on review applied, it would undermine the very purpose served by the two-step process, “which is to clarify constitutional rights without undue delay.” Bunting, 541 U. S., at 1024 (SCALIA, J., dissenting from denial of certiorari). This Court, needless to say, also plays a role in clarifying rights. Just as that purpose may justify an appellate court in reaching beyond an immunity defense to decide a constitutional issue, so too that purpose may support this Court in reviewing the correctness of the lower court’s decision.6 We emphasize, however, two limits of today’s holding. First, it addresses only our own authority to review cases in this procedural posture. The Ninth Circuit had no occasion to consider whether it could hear an appeal from an immunized official: In that court, after all, S. G. appealed the judgment in the officials’ favor. We therefore need not and do not decide if an appellate court, too, can entertain an appeal from a party who has prevailed on immunity grounds.7 Second, our holding concerns only what this Court may review; what we actually will choose to review is a different matter. That choice will be governed by the ordinary principles informing our decision whether to grant certiorari—a “power [we] . . . sparingly exercis[e].” Forsyth v. Hammond, 166 U. S. 506, 514 (1897); see also id., at 514–515 (this Court grants review “only when the circumstances of the case satisfy us that the importance of the question involved, the necessity of avoiding conflict [in the lower courts], or some matter affecting the interests of this nation . . . , demands such exercise”); this Court’s Rule 10. Our decision today does no more than exempt one special category of cases from our usual rule against considering prevailing parties’ petitions. Going forward, we will consider these petitions one by one in accord with our usual standards.

III

Although we reject S. G.’s arguments for dismissing this case at the threshold, we find that a separate jurisdictional problem requires that result: This case, we conclude, is moot.8

As we explained above, supra, at 6–7, in a dispute of this kind, both the plaintiff and the defendant ordinarily retain a stake in the outcome. That is true of one defendant here: Camreta remains employed as a child protective services worker, so he has an interest in challenging the Ninth Circuit’s ruling requiring him to obtain a warrant before conducting an in-school interview.9 But S. G. can no longer claim the plaintiff’s usual stake in preserving the court’s holding because she is no longer in need of any protection from the challenged practice. After we granted certiorari, we discovered that S. G. has “moved to Florida, and ha[s] no intention of relocating back to Oregon.” Brief for Respondent 13, n. 13. What is more, S. G. is now only months away from her 18th birthday—and, presumably, from her high school graduation. See id., at 31. S. G. therefore cannot be affected by the Court of Appeals’ ruling; she faces not the slightest possibility of being seized in a school in the Ninth Circuit’s jurisdiction as part of a child abuse investigation. When “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” we have no live controversy to review. United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968); see, e.g., Atherton Mills v. Johnston, 259 U. S. 13, 15–16 (1922) (suit contesting the validity of a child labor statute mooted when plaintiff-child was “[no longer] within the ages affected by the act”); DeFunis v. Odegaard, 416 U. S. 312 (1974) (per curiam) (suit challenging law school admissions policy mooted when plaintiff neared graduation). Time and distance combined have stymied our ability to consider this petition.

Camreta makes only one counterargument: He avers that S. G. has a continuing interest in the Ninth Circuit’s constitutional ruling because it may help her establish a municipal liability claim against Deschutes County. See Tr. of Oral Arg. 7; id., at 8. S. G.’s initial complaint charged that the county has an official policy of unconstitutionally subjecting schoolchildren to police interrogation. See n. 2, supra. Finding no evidence of such a policy (even assuming that an unlawful seizure had occurred in this case), the District Court granted summary judgment to the county, App. to Pet. for Cert. in No. 09–1454, pp. 66– 67, and S. G. did not appeal that ruling, 588 F. 3d, at 1020, n. 4. And although S. G. recently sought to reinstate her claim against the county, the District Court denied that motion. 6:05–cv–06047–AA, Docket Entry No. 139 (D Ore., Jan. 4, 2011). Whatever interest S. G. might have were her municipal liability claim still pending (an issue we need not and do not decide), we do not think S. G.’s dismissed claim against a different defendant involving a separate legal theory can save this case from mootness. See Commodity Futures Trading Comm’n v. Board of Trade of Chicago, 701 F. 2d 653, 656 (CA7 1983) (Posner, J.) (“[O]ne can never be certain that findings made in a decision concluding one lawsuit will not some day . . . control the outcome of another suit. But if that were enough to avoid mootness, no case would ever be moot”).

We thus must decide how to dispose of this case. When a civil suit becomes moot pending appeal, we have the authority to “direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” 28 U. S. C. §2106. Our “established” (though not exceptionless) practice in this situation is to vacate the judgment below. See Munsingwear, 340 U. S., at 39; Alvarez v. Smith, 558 U. S. ___, ___ (2009) (slip op., at 6). “A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance,” we have emphasized, “ought not in fairness be forced to acquiesce in” that ruling. U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 25 (1994). The equitable remedy of vacatur ensures that “those who have been prevented from obtaining the review to which they are entitled [are] not . . . treated as if there had been a review.” Munsingwear, 340 U. S., at 39.10

S. G. contends that vacatur is inappropriate in the qualified immunity context because that disposition would “undermine” the Court of Appeals’ choice to “decide [a] constitutional questio[n]” to govern future cases. Brief for Respondent 41–42; Tr. of Oral Arg. 47. Far from counseling against vacatur, S. G.’s argument reveals the necessity of that procedural course. The point of vacatur is to prevent an unreviewable decision “from spawning any legal consequences,” so that no party is harmed by what we have called a “preliminary” adjudication. Munsingwear, 340 U. S., at 40–41. As we have just explained, a constitutional ruling in a qualified immunity case is a legally consequential decision; that is the very reason we think it appropriate for review even at the behest of a prevailing party. See supra, at 8–12. When happenstance prevents that review from occurring, the normal rule should apply: Vacatur then rightly “strips the decision below of its binding effect,” Deakins v. Monaghan, 484 U. S. 193, 200 (1988), and “clears the path for future relitigation,” Munsingwear, 340 U. S., at 40.

In this case, the happenstance of S. G.’s moving across country and becoming an adult has deprived Camreta of his appeal rights. Mootness has frustrated his ability to challenge the Court of Appeals’ ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school. We therefore vacate the part of the Ninth Circuit’s opinion that addressed that issue, and remand for further proceedings consistent with this opinion.11 See, e.g., Arave v. Hoffman, 552 U. S. 117, 118–119 (2008) (per curiam); Selig v. Pediatric Specialty Care, Inc., 551 U. S. 1142 (2007). It is so ordered.

1 Because Greene filed suit as next friend for her minor daughter, we will refer to respondent as S. G. throughout this opinion.

2 S. G. also sued Deschutes County, alleging that it has a policy of unconstitutionally seizing children in public schools. See 588 F. 3d 1011, 1020, n. 4 (CA9 2009). The District Court rejected this claim, and S. G. did not appeal that ruling to the Ninth Circuit. Ibid.

3 The dissent discusses Deposit Guarantyi> and Electrical Fittings at length in an effort to distinguish them from this suit. See post, at 4–7 (opinion of KENNEDY, J.). But we do not say those cases are foursquare with this one on their facts; we rely on them only for the proposition that this Court has previously identified no special Article III bar on review of appeals brought by parties who obtained a judgment in their favor below. The dissent does not, because it cannot, dispute that simple point.

4 Contrary to the dissent’s view, see post, at 12, the injury to the official thus occurs independent of any future suit brought by a third party. Indeed, no such suit is likely to arise because the prospect of damages liability will force the official to change his conduct.

5 The constitutional issue could arise in a case in which qualified immunity is unavailable—for example, “in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion in a criminal proceeding.” Lewis, 523 U. S., at 841, n. 5. A decision in such a case would break the repetitive cycle of qualified immunity defenses described above. But some kinds of constitutional questions do not often come up in these alternative settings. Pearson v. Callahan, 555 U. S. 223, 236 (2009); see Lewis, 523 U. S., at 841, n. 5 (noting that “these avenues w[ill] not necessarily be open”).

6 The dissent complains that our decision “allows plaintiffs to obtain binding constitutional determinations on the merits that lie beyond this Court’s jurisdiction to review.” Post, at 10. But that is not the case. It is not this decision but our prior precedents that allow lower courts to issue “binding constitutional determinations” in qualified immunity cases even when the plaintiff is not entitled to money damages. And it is not our decision but the dissent that would insulate these rulings from this Court’s power to review.

7 We note, however, that the considerations persuading us to permit review of petitions in this posture may not have the same force as applied to a district court decision. “A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” 18 J. Moore et al., Moore’s Federal Practice §134.02[1][d], p. 134–26 (3d ed. 2011). Many Courts of Appeals therefore decline to consider district court precedent when determining if constitutional rights are clearly established for purposes of qualified immunity. See, e.g., Kalka v. Hawk, 215 F. 3d 90, 100 (CADC 2000) (Tatel, J., concurring in part and concurring in judgment) (collecting cases). Otherwise said, district court decisions—unlike those from the courts of appeals—do not necessarily settle constitutional standards or prevent repeated claims of qualified immunity.

8JUSTICE SOTOMAYOR maintains that, because this case is moot, “[t]here is no warrant for reaching th[e] question” whether immunized officials may obtain our consideration of an adverse constitutional ruling. Post, at 1 (opinion concurring in judgment). But this Court has never held that it may consider only one threshold issue per case. And here, as we will explain, infra, at 16–18, and n. 10, our discussion of reviewability is critical to our ultimate disposition of this suit. Moreover, that issue was fully litigated in this Court. We granted certiorari to consider whether “the Ninth Circuit’s constitutional ruling [is] reviewable, notwithstanding that [the Court of Appeals] ruled in [the officials’] favor on qualified immunity grounds.” Pet. for Cert. in No. 09–1454, p. i. And all the parties, as well as the United States as amicus curiae, addressed that question in their briefs and oral arguments. Compare Brief for Petitioner in No. 09–1454, pp. 41–44, Brief for Petitioner in No. 09–1478, p. 4, n. 1, Reply Brief for Petitioner in No. 09–1454, pp. 3–13, Reply Brief for Petitioner in No. 09–1478, pp. 5– 6, Brief for United States as Amicus Curiae 11–20, and Tr. of Oral Arg. 4–14, 17–24, 54–58, with Brief for Respondent 24–42, and Tr. of Oral Arg. 27–31, 46–52.

9 The same cannot be said for Deputy Sheriff Alford. In their briefs, the parties informed us that Alford no longer works for Deschutes County or in law enforcement. See Brief for Respondent 1, n. 2; Reply Brief for Petitioner in No. 09–1478. Because Alford will not again participate in a child abuse investigation, he has lost his interest in the Fourth Amendment ruling. See supra, at 6–7; cf. Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997) (holding that the plaintiff’s challenge to a state law affecting the performance of her job duties was mooted when she left state employment). But in light of Camreta’s continuing stake, Alford’s altered circumstances are immaterial to our resolution of this dispute, and we do not decide any questions that would arise if he were the only defendant.

10 Our analysis of the proper disposition of this case follows from our conclusion that government officials who secure a favorable judgment on immunity grounds may obtain our review of an adverse constitutional holding. See supra, at 12. As just noted, Munsingwear justified vacatur to protect a litigant who had the right to appeal but lost that opportunity due to happenstance. 340 U. S., at 39, 41. We have therefore left lower court decisions intact when mootness did not deprive the appealing party of any review to which he was entitled. See, e.g., U. S. Bancorp Mortgage Co., 513 U. S., at 25 (holding that the appealing party had “surrender[ed] his claim to the equitable remedy of vacatur” by settling the case and thus “voluntarily forfeit[ing] his legal remedy by the ordinary processes of appeal”); Karcher v. May, 484 U. S. 72, 83 (1987) (holding that vacatur in light of mootness was not warranted when the losing party declined to file an appeal). So if immunized officials could not challenge an appellate decision in this Court, we would choose not to exercise our equitable authority to vacate that decision, even if the case later became moot. But here, as we have just explained, the theory that underlies our prior cases applying Munsingwear is satisfied: Vacatur expunges an adverse decision that would be reviewable had this case not become moot. See Arizonans, 520 U. S., at 74 (finding vacatur proper because, “when the mooting event occurred,” the Arizona Attorney General was pursuing his “right to present argument on appeal”).

11 Our disposition of this case differs slightly from the normal Munsingwear order vacating the lower court’s judgment and remanding the case with instructions to dismiss the relevant claim. We leave untouched the Court of Appeals’ ruling on qualified immunity and its corresponding dismissal of S. G.’s claim because S. G. chose not to challenge that ruling. We vacate the Ninth Circuit’s ruling addressing the merits of the Fourth Amendment issue because, as we have explained, supra, at 11–12, that is the part of the decision that mootness prevents us from reviewing but that has prospective effects on Camreta. See Walling v. James V. Reuter, Inc., 321 U. S. 671, 677 (1944) (observing that when a suit becomes moot, “this Court . . . may make such disposition of the whole case as justice may require”). But we emphasize that this unique disposition follows from the unique posture of this case and signals no endorsement of deviations from the usual Munsingwear order in other situations.

SCALIA, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 09–1454 and 09–1478

_________________

BOB CAMRETA, PETITIONER
09–1454
v.
SARAH GREENE, PERSONALLY AND AS NEXT FRIEND OF
S. G., A MINOR, AND K. G., A MINOR

JAMES ALFORD, DEPUTY SHERIFF, DESCHUTES
COUNTY, OREGON, PETITIONER
09–1478
v.
SARAH GREENE, PERSONALLY AND AS NEXT FRIEND OF
S. G., A MINOR, AND K. G., A MINOR

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[May 26, 2011]

JUSTICE SCALIA, concurring.

I join the Court’s opinion, which reasonably applies our precedents, strange though they may be. The alternative solution, as JUSTICE KENNEDY suggests, see post, at 13 (dissenting opinion), is to end the extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity. See Saucier v. Katz, 533 U. S. 194 (2001). The parties have not asked us to adopt that approach, but I would be willing to consider it in an appropriate case.

SOTOMAYOR, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 09–1454 and 09–1478

_________________

BOB CAMRETA, PETITIONER
09–1454
v.
SARAH GREENE, PERSONALLY AND AS NEXT FRIEND OF
S. G., A MINOR, AND K. G., A MINOR

JAMES ALFORD, DEPUTY SHERIFF, DESCHUTES
COUNTY, OREGON, PETITIONER
09–1478
v.
SARAH GREENE, PERSONALLY AND AS NEXT FRIEND OF
S. G., A MINOR, AND K. G., A MINOR

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[May 26, 2011]

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins, concurring in the judgment.

I agree with the Court’s conclusion that this case is moot and that vacatur is the appropriate disposition; unlike the majority, however, I would go no further. As the exchange between the majority and JUSTICE KENNEDY demonstrates, the question whether Camreta, as a prevailing party, can obtain our review of the Ninth Circuit’s constitutional ruling is a difficult one. There is no warrant for reaching this question when there is clearly no longer a genuine case or controversy between the parties before us. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U. S. 422, 436 (2007) (noting that when a court can “readily” dispose of a case on one threshold ground, it should not reach another one that “is difficult to determine”). Indeed, it is improper for us to do so. Cf. U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 21 (1994) (“[A] federal court [may not] decide the merits of a legal question not posed in an Article III case or controversy”).

The majority suggests that we must decide whether Camreta has a “right to appeal” in order to vacate the judgment below under United States v. Munsingwear, Inc., 340 U. S. 36 (1950). See ante, at 17, n. 10; see also ante, at 14, n. 8. But that view does not accord with our past practice. See Arizonans for Official English v. Arizona, 520 U. S. 43, 66, 70, 74–75 (1997) (ordering vacatur of a district court judgment without “resolv[ing]” our “grave doubts” about the petitioners’ appellate standing or deciding whether the state Attorney General had a right to intervene as a party, and concluding only that he had statutory authority to “present argument” on appeal). Nor is it consistent with the principles underlying our mootness jurisprudence. See Walling v. James V. Reuter, Inc., 321 U. S. 671, 677 (1944) (“If a judgment has become moot, this Court . . . may make such disposition of the whole case as justice may require”). In accordance with our normal procedure for disposing of cases that have become moot through no fault of the party seeking review, see Bancorp, 513 U. S., at 22–23; Munsingwear, 340 U. S., at 39–40, and n. 2, we should simply vacate the portion of the Ninth Circuit’s opinion Camreta sought to challenge and remand with instructions to dismiss, see, e.g., Indiana State Police Pension Trust v. Chrysler LLC, 556 U. S. ___ (2009) (per curiam).

KENNEDY, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 09–1454 and 09–1478

_________________

BOB CAMRETA, PETITIONER
09–1454
v.
SARAH GREENE, PERSONALLY AND AS NEXT FRIEND OF
S. G., A MINOR, AND K. G., A MINOR

JAMES ALFORD, DEPUTY SHERIFF, DESCHUTES
COUNTY, OREGON, PETITIONER
09–1478
v.
SARAH GREENE, PERSONALLY AND AS NEXT FRIEND OF
S. G., A MINOR, AND K. G., A MINOR

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[May 26, 2011]

JUSTICE KENNEDY, with whom JUSTICE THOMAS joins, dissenting.

Today’s decision results from what is emerging as a rather troubling consequence from the reasoning of our recent qualified immunity cases. The Court is correct to note the problem presented when, on the one hand, its precedents permit or invite courts to rule on the merits of a constitutional claim even when qualified immunity disposes of the matter; and, on the other hand, jurisdictional principles prevent us from reviewing those invited rulings. It does seem that clarification is required. In my view, however, the correct solution is not to override jurisdictional rules that are basic to the functioning of the Court and to the necessity of avoiding advisory opinions. Dictum, though not precedent, may have its utility; but it ought not to be treated as a judgment standing on its own. So, while acknowledging the problem the Court confronts, my concern with the rule adopted for this case calls for this respectful dissent.

I

The Court acknowledges our “settled refusal to entertain an appeal,” including a petition for certiorari, “by a party on an issue as to which he prevailed.” Ante, at 8 (internal quotation marks omitted). At the outset, however, it is important to state this rule more fully to show its foundational character. A party that has already obtained the judgment it requested may not seek review to challenge the reasoning of a judicial decision. As we have said on many occasions, “This Court reviews judgments, not statements in opinions.” California v. Rooney, 483 U. S. 307, 311 (1987) (per curiam) (internal quotation marks omitted); see also Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842, and n. 8 (1984) (collecting cases). The rule has been noted and followed since the early years of this Court. “The question before an appellate Court is, was the judgment correct, not the ground on which the judgment professes to proceed.” McClung v. Silliman, 6 Wheat. 598, 603 (1821).

The rule against hearing appeals or accepting petitions for certiorari by prevailing parties is related to the Article III prohibition against issuing advisory opinions. This principle underlies, for example, the settled rule against hearing cases involving a disputed judgment based on grounds of state law. As Justice Jackson explained for the Court: “[O]ur power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.” Herb v. Pitcairn, 324 U. S. 117, 125– 126 (1945). This point has been repeated with force and clarity. See, e.g., Michigan v. Long, 463 U. S. 1032, 1041– 1042 (1983). The “ ‘judicial Power’ is one to render dispositive judgments,” not advisory opinions. Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 219 (1995) (internal quotation marks omitted).

The rule against hearing appeals by prevailing parties applies in countless situations, many involving government parties. Deficient performance may not yield prejudice under Strickland v. Washington, 466 U. S. 668 (1984). A defective warrant may be entitled to good-faith reliance under United States v. Leon, 468 U. S. 897 (1984). An unreasonable search may be cured through the inevitable discovery doctrine of Nix v. Williams, 467 U. S. 431 (1984). In these and myriad other situations, an error is identified, but that conclusion does not affect the ultimate judgment entered. In all these contexts, it is established that the prevailing party may not appeal. This conclusion holds true even though a statement on the merits can have adverse consequences for the prevailing party. “The Court of Appeal’s use of analysis that may have been adverse to the State’s long-term interests does not allow the State to claim status as a losing party for purposes of this Court’s review.” Rooney, supra, at 311.

The Court nonetheless holds that defendants who prevail in the Courts of Appeals based on qualified immunity may still obtain review in this Court. This point is put in perspective by the fact that the Court today, in an altogether unprecedented disposition, says that it vacates not a judgment but rather “part of the Ninth Circuit’s opinion.” Ante, at 2. The Court’s conclusion is unsettling in its implications. Even on the Court’s reading of our cases, the almost invariable rule is that prevailing parties are not permitted to obtain a writ of certiorari. Cf. Kalka v. Hawk, 215 F. 3d 90, 96, n. 9 (CADC 2000) (concluding that the Supreme Court “has apparently never granted the certiorari petition of a party who prevailed in the appellate court”). After today, however, it will be common for prevailing parties to seek certiorari based on the Court’s newfound exception. And that will be so even though the “admonition” against reviewing mere statements in opinions “has special force when the statements raise constitutional questions, for it is our settled practice to avoid the unnecessary decision of such issues.” FCC v. Pacifica Foundation, 438 U. S. 726, 734 (1978).

The Court defends its holding with citations to just two of our cases. Ante, at 6. Neither provides support for the Court’s result.

The first case is Electrical Fittings Corp. v. Thomas & Betts Co., 307 U. S. 241 (1939). There, a plaintiff alleged the infringement of two patent claims. The District Court found the plaintiff’s first claim valid but not infringed and the second claim invalid. Rather than issuing a judgment “dismissing the bill without more,” the District Court instead “entered a decree adjudging claim 1 valid” and “dismissing the bill for failure to prove infringement.” Id., at 241–242. The District Court thus issued a formal judgment regarding the validity of the first claim. The defendant appealed to dispute that claim’s validity. This Court noted, without qualification, that a party “may not appeal from a judgment or decree in his favor, for the purpose of obtaining a review of findings he deems erroneous which are not necessary to support the decree.” Id., at 242. “But,” this Court went on to explain, “here the decree itself purports to adjudge the validity of claim 1, and though the adjudication was immaterial to the disposition of the cause, it stands as an adjudication of one of the issues litigated.” Ibid. In other words, the District Court had entered an unnecessary legal conclusion into the terms of the judgment itself, making it possible, for example, that the decree would have estoppel effect as to an issue whose resolution was unnecessary to the proper judgment of dismissal. Electrical Fittings therefore concluded that “the petitioners were entitled to have this portion of the decree eliminated.” Ibid. The sole relief provided was an order for the “reformation of the decree.” Ibid. That result accords with, indeed flows from, the settled rule that this Court reviews only judgments, not statements in opinions.

The second case is Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326 (1980). In that case plaintiffs attempted to bring a class action against a bank. After the District Court denied class certification, the defendant tendered to the plaintiffs the maximum value that they could recover as individuals. Of course, that offer did not amount to “all that ha[d] been requested in the complaint”—namely, “relief for the class.” Id., at 341 (Rehnquist, J., concurring). It is therefore no surprise that the plaintiffs responded with “a counteroffer of judgment in which they attempted to reserve the right to appeal the adverse class certification ruling.” Id., at 329 (opinion of the Court). But that proposal was denied. “Based on the bank’s offer, the District Court entered judgment in respondents’ favor, over their objection.” Id., at 330. The District Court thus issued a judgment other than the one the plaintiffs had sought. The would-be class plaintiffs appealed, and this Court later granted certiorari. The Court held that appeal was not barred by the prevailingparty rule: “We view the denial of class certification as an example of a procedural ruling, collateral to the merits of a litigation, that is appealable after the entry of final judgment.” Id., at 336. As the Court explained, the plaintiffs had obtained only a judgment in their individual capacities. Yet the plaintiffs had “asserted as their personal stake in the appeal their desire to shift to successful class litigants a portion of those fees and expenses that have been incurred in this litigation.” Id., at 334, n. 6; see also id., at 336. Because the purported prevailing parties were injured by their failure to obtain the class-based judgment they had sought, the Court held there was “jurisdiction to entertain the appeal only to review the asserted procedural error, not for the purpose of passing on the merits.” Ibid. The Court was clear that the District Court’s denial of class certification had a direct effect on the judgment: “As in Electrical Fittings,” the purported prevailing parties “were entitled to have [a] portion of the District Court’s judgment reviewed.” Ibid.

Neither Electrical Fittings nor Deposit Guaranty provides support for the rule adopted today. Those decisions instead held that, in the unusual circumstances presented, particular parties who at first appeared to have prevailed below had in fact failed to obtain the judgments they had sought. This Court therefore had jurisdiction, including of course jurisdiction under Article III, to provide relief for the harm caused by the adverse judgments entered below. The parties seeking appeal in Electrical Fittings and Deposit Guaranty might be compared with plaintiffs who have requested $1,000 in relief but obtained only $500. Such parties have prevailed in part, but have not “receive[d] all that [they] ha[d] sought.” Deposit Guaranty, supra, at 333. In contrast the Court appears to assume that the petitioners in the present case are true prevailing parties. They have obtained from the Court of Appeals the only formal judgment they requested: denial of respondent’s claim for damages.

The Court points to policy concerns as the basis for its willingness to hear appeals by prevailing parties. Ante, at 8–10. But those concerns are unwarranted. In only one dissenting opinion has it been suggested that certiorari should be granted to reach a merits determination “locked inside” a favorable qualified immunity ruling. Bunting v. Mellen, 541 U. S. 1019, 1024 (2004) (SCALIA, J., dissenting from denial of certiorari). That dissenting opinion was issued in response to the rule that constitutional issues should be decided in every case involving qualified immunity. Id., at 1025. Yet that mandated rule of decision has now been disapproved, so the dissent’s argument is no longer applicable. See Pearson v. Callahan, 555 U. S. 223 (2009). Indeed, the Court today suggests that it still would not allow review of the merits even in the case that provoked the dissent. Unlike petitioner Camreta, the petitioner in Bunting had left the Government’s employ before filing a petition for certiorari and so lacked standing to obtain review in this Court. Compare 541 U. S., at 1025, n., with id., at 1021 (Stevens, J., respecting denial of certiorari), and ante, at 14–15, and n. 9.

The instant case thus appears to be the first in which the Court’s new exception to the prevailing party rule might have been applied. And even here that exception is neither necessary nor sufficient for the merits to be adjudicated by this Court. The Fourth Amendment question decided below is bound to arise again in future cases. Indeed, the reasoning of the decision below implicates a number of decisions in other Courts of Appeals. Cf. 588 F. 3d 1011, 1026, n. 11 (CA9 2009) (collecting cases). Yet today’s decision does not supply the Courts of Appeals with guidance as to these merits issues. The Court instead vacates part of the reasoning of the decision below, thereby leaving other decisions intact and unreviewed. The Court thus resolves difficult constitutional issues and provides an unprecedented answer to “an important question of judicial policy,” all to no end. Ante, at 7.

The Court errs in reading Electrical Fittings and Deposit Guaranty to permit review and, indeed, the provision of relief disconnected from any judgment. The result is an erroneous and unbounded exception to an essential principle of judicial restraint. Parties who have obtained all requested relief may not seek review here.

II As today’s decision illustrates, our recent qualified immunity cases tend to produce decisions that are in tension with conventional principles of case-or-controversy adjudication. This Court has given the Courts of Appeals “permission” to find constitutional violations when ordering dismissal or summary judgment based on qualified immunity. Ante, at 9; see Pearson, supra. This invitation, as the Court is correct to note, was intended to produce binding constitutional holdings on the merits. Ante, at 10–11. The goal was to make dictum precedent, in order to hasten the gradual process of constitutional interpretation and alter the behavior of government defendants. Ibid. The present case brings the difficulties of that objective into perspective. In express reliance on the permission granted in Pearson, the Court of Appeals went out of its way to announce what may be an erroneous interpretation of the Constitution; and, under our case law, the Ninth Circuit must give that dictum legal effect as precedent in future cases.

In this way unnecessary merits decisions in qualified immunity cases could come to resemble declaratory judgments or injunctions. Indeed the United States as amicus curiae contends that the merits decision below “has an effect similar to an injunction or a declaratory judgment against the government as a whole.” Brief for United States as Amicus Curiae 13. Today’s opinion adopts that view, providing as relief the vacatur of “part of the Ninth Circuit’s opinion”—namely, the part of the opinion that rules on the constitutional merits. Ante, at 2. For the first time, obiter dictum is treated not just as precedent for future cases but as a judgment in its own right.

The Court of Appeals in this case did not in fact issue a declaratory judgment or injunction embodying a determination on the merits, and it does not appear that a judgment of that kind could have issued. Plaintiffs must establish standing as to each form of relief they request, yet the plaintiff in this case had no separate interest in obtaining a declaratory judgment. See Los Angeles v. Lyons, 461 U. S. 95, 103–105 (1983) (citing Ashcroft v. Mattis, 431 U. S. 171 (1977) (per curiam); Golden v. Zwickler, 394 U. S. 103 (1969)); see also MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 127 (2007). There was no likelihood that S. G., the plaintiff’s daughter, would again be subjected to interrogation while at school, much less that she would be interrogated by petitioner-defendant Camreta, so S. G. would seem to have had no greater stake in obtaining a declaratory judgment than the plaintiff in Lyons had in obtaining an injunction. See 461 U. S., at 104 (noting the “actual controversy that must exist for a declaratory judgment to be entered”). Our qualified immunity cases should not permit plaintiffs in constitutional cases to make an end-run around established principles of justiciability. In treating dictum as though it were a declaratory judgment or an injunction, the Court appears to approve the issuance of such judgments outside the bounds of Article III jurisdiction.

The Court creates an exception to the prevailing party rule in order to solve the difficulties created by our qualified immunity jurisprudence, but the Court’s solution creates new problems. Sometimes defendants in qualified immunity cases have no particular interest in disputing the constitutional merits. Acknowledging as much, the Court notes that petitioner Alford no longer works for the government and so “has lost his interest in the Fourth Amendment ruling.” Ante, at 14, n. 9. In concluding that Alford lacks Article III standing, the Court suggests that it would lack jurisdiction to review and perhaps even to vacate the merits decision of the Court of Appeals if respondent had sued only Alford. Ibid.; cf. Arizonans for Official English v. Arizona, 520 U. S. 43, 72–73 (1997) (discussing standing to obtain review in this Court as well as this Court’s jurisdiction to vacate judgments issued without jurisdiction). That suggestion is disconcerting. Under today’s decision, it appears that the Court’s ability to review merits determinations in qualified immunity cases is contingent on the defendant who has been sued. A defendant who has left the government’s employ or otherwise lacks an interest in disputing the merits will be unable to obtain further review. See ante, at 14, n. 9 (discussing Article III limits on relief in this Court); ante, at 17, n. 10 (discussing limitations on this Court’s equitable vacatur authority).

The Court today avoids this difficulty by concluding that petitioner Camreta has suffered an Article III injury. Ante, at 7; cf. ante, at 15, n. 9 (“[W]e do not decide any questions that would arise if [Alford] were the only defendant”). But the Court can reach that conclusion only because, “as part of his job,” Camreta “regularly engages” in conduct made unlawful by the reasoning of the Court of Appeals. Ante, at 7. As discussed below, this conclusion is doubtful. See infra, at 11–13. In any event the Court’s standing analysis will be inapplicable in most qualified immunity cases. Cf. ante, at 6 (asserting that the “Article III standard often will be met”). When an officer is sued for taking an extraordinary action, such as using excessive force during a high-speed car chase, there is little possibility that a constitutional decision on the merits will again influence that officer’s conduct. The officer, like petitioner Alford or the petitioner in Bunting, would have no interest in litigating the merits in the Court of Appeals and, under the Court’s rule, would seem unable to obtain review of a merits ruling by petitioning for certiorari. See ante, at 5– 7; ante, at 14, n. 9, ante, at 17, n. 10; see also Lyons, supra, at 103–105. This problem will arise with great frequency in qualified immunity cases. Once again, the decision today allows plaintiffs to obtain binding constitutional determinations on the merits that lie beyond this Court’s jurisdiction to review. The Court thus fails to solve the problem it identifies. III

It is most doubtful that Article III permits appeals by any officer to whom the reasoning of a judicial decision might be applied in a later suit. Yet that appears to be the implication of the Court’s holding. The favorable judgment of the Court of Appeals did not in itself cause petitioner Camreta to suffer an Article III injury entitling him to appeal. Cf. supra, at 1–7 (discussing Electrical Fittings and Deposit Guaranty); ASARCO Inc. v. Kadish, 490 U. S. 605, 619 (1989) (finding an Article III controversy where petitioner challenged “a final judgment altering tangible legal rights”). On the contrary, Camreta has been injured by the decision below to no greater extent than have hundreds of other government officers who might argue that they too have been affected by the unnecessary statements made by the Court of Appeals. The Court notes as a limit on its authority to entertain appeals from prevailing parties certain statutory directives, directives that can be interpreted or shaped to allow expanded powers of review. Ante, at 4. But even if Congress were to give explicit permission for certiorari petitions to be filed by “any person” instead of by “any party,” 28 U. S. C. §1254(1), the constitutional definition of a case or controversy would still constrain this Court’s jurisdiction.

The Court’s analysis appears to rest on the premise that the reasoning of the decision below in itself causes Camreta injury. Until today, however, precedential reasoning of general applicability divorced from a particular adverse judgment was not thought to yield “standing to appeal.” Parr v. United States, 351 U. S. 513, 516, 517 (1956) (opinion for the Court by Harlan, J.). That is why “[o]nly one injured by the judgment sought to be reviewed can appeal.” Id., at 516; see also supra, at 1–6; e.g., Chathas v. Local 134 IBEW, 233 F. 3d 508, 512 (CA7 2000) (Posner, J.) (“Adverse dicta are not appealable rulings. They can cause harm, but not the sort of harm that the courts . . . deem to create a genuine controversy within the meaning of Article III of the Constitution. Judgments are appealable; opinions are not” (citations omitted)); Sea-Land Serv., Inc. v. Department of Transp., 137 F. 3d 640, 648 (CADC 1998) (Williams, J.) (“[M]ere precedential effect within an agency is not, alone, enough to create Article III standing, no matter how foreseeable the future litigation” (citing Radiofone, Inc. v. FCC, 759 F. 2d 936, 938 (CADC 1985) (opinion of Scalia, J.))); id., at 939 (explaining that standing must “arise from the particular activity which the agency adjudication has approved . . . and not from the mere precedential effect of the agency’s rationale in later adjudications”); Oxford Shipping Co., v. New Hampshire Trading Corp., 697 F. 2d 1, 7 (CA1 1982) (Breyer, J.) (“Since the judgment appealed from was in [a party’s] favor, and since the statement made was in no sense necessary to that judgment, the statement was dictum. There is no known basis for an appeal from a dictum”). It is revealing that the Court creates an exception to the prevailing party rule while making clear that the Courts of Appeals are not to follow suit, in any context. See ante, at 13–14.

The conclusion that precedent of general applicability cannot in itself create standing to sue or appeal flows from basic principles. Camreta’s asserted injury is caused not by the Court of Appeals or by respondent but rather by “the independent action of some third party not before the court”—that is, by the still-unidentified private plaintiffs whose lawsuits Camreta hopes to avoid. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992) (internal quotation marks omitted). This circumstance distinguishes the present case from requests for declaratory or injunctive relief filed against officeholders who threaten legal enforcement. An inert rule of law does not cause particular, concrete injury; only the specific threat of its enforcement can do so. That is why the proper defendant in a suit for prospective relief is the party prepared to enforce the relevant legal rule against the plaintiff. See MedImmune, Inc., 549 U. S., at 127 (explaining that declaratory relief requires a controversy “between parties having adverse legal interests, of sufficient immediacy and reality” (internal quotation marks omitted)); Babbitt v. Farm Workers, 442 U. S. 289, 298–299 (1979) (“A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement”). Without an adverse judgment from which to appeal, Camreta has in effect filed a new declaratory judgment action in this Court against the Court of Appeals. This is no more consistent with Article III than filing a declaratory judgment action against this Court for its issuance of an adverse precedent or against Congress in response to its enactment of an unconstitutional law.

IV

If today’s decision proves to be more than an isolated anomaly, the Court might find it necessary to reconsider its special permission that the Courts of Appeals may issue unnecessary merits determinations in qualified immunity cases with binding precedential effect.

Other dynamics permit the law of the Constitution to be elaborated within the conventional framework of a case or controversy. “[T]he development of constitutional law is by no means entirely dependent on cases in which the defendant may seek qualified immunity.” Pearson, 555 U. S., at 242–243. For example, qualified immunity does not bar Fourth and Fifth Amendment suppression challenges. See, e.g., Kentucky v. King, ante, p. ___. Nor does it prevent invocation of the Constitution as a defense against criminal prosecution, civil suit, or cruel and unusual punishment. See, e.g., Snyder v. Phelps, 562 U. S. ___ (2011); Graham v. Florida, 560 U. S. ___ (2010); Lawrence v. Texas, 539 U. S. 558 (2003). Nor is qualified immunity available in constitutional suits against municipalities—as this very case illustrates. Ante, at 15–16. Our cases make clear, moreover, that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U. S. 730, 741 (2002). That rule permits clearly established violations to be found when extreme though unheard-of actions violate the Constitution. See, e.g., ibid. Furthermore, constitutional plaintiffs may seek declaratory or injunctive relief pursuant to standard principles of justiciability. Those plaintiffs do not need Pearson’s special rule. See, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010); McDonald v. Chicago, 561 U. S. ___ (2010). In any event, some incremental advance in the law occurs even when clearly established violations are found. It is an inevitable aspect of judicial decisionmaking that the resolution of one legal question or factual dispute casts light on the next.

It would be preferable at least to explore refinements to our qualified immunity jurisprudence before altering basic principles of jurisdiction. For instance, the objectives of qualified immunity might be satisfied if there were no bar to reaching the merits and issuing judgment when requested damages are nominal and substantial attorney’s fees are waived or not allowed. Cf. Farrar v. Hobby, 506 U. S. 103, 112–115 (1992) (discussing unavailability of attorney’s fees where nominal damages are only relief); Hewitt v. Helms, 482 U. S. 755, 761–763 (1987); Harlow v. Fitzgerald, 457 U. S. 800, 819, n. 34 (1982); Carey v. Piphus, 435 U. S. 247, 266 (1978) (discussing the propriety of providing nominal damages as relief).

The desire to resolve more constitutional questions ought not lead to altering our jurisdictional rules. That is the precise object that our legal tradition tells us we should resist. Haste to resolve constitutional issues has never been thought advisable. We instead have encouraged the Courts of Appeals to follow “that older, wiser judicial counsel not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.” Scott v. Harris, 550 U. S. 372, 388 (2007) (BREYER, J., concurring) (internal quotation marks omitted); see generally Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Experience teaches that there is no persuasive reason to reverse normal principles of judicial review in qualified immunity cases. Compare, e.g., Pearson, supra, at 236, and Siegert v. Gilley, 500 U. S. 226, 235 (1991) (KENNEDY, J., concurring in judgment) (“[I]t seems to reverse the usual ordering of issues to tell the trial and appellate courts that they should resolve the constitutional question first”), with id., at 232 (opinion of the Court), and Saucier v. Katz, 533 U. S. 194, 201 (2001). Yet this Court’s “puzzling misadventure in constitutional dictum” still has not come to an end. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U. L. Rev. 1249, 1275 (2006).

There will be instances where courts discuss the merits in qualified immunity cases. It is sometimes a better analytic approach and a preferred allocation of judicial time and resources to dismiss a claim on the merits rather than to dismiss based on qualified immunity. And “[i]t often may be difficult to decide whether a right is clearly established without deciding precisely what the existing constitutional right happens to be.” Pearson, supra, at 236 (internal quotation marks omitted). This Court should not superintend the judicial decisionmaking process in qualified immunity cases under special rules, lest it make the judicial process more complex for civil rights suits than for other litigation. It follows, however, that the Court should provide no special permission to reach the merits. If qualified immunity cases were treated like other cases raising constitutional questions, settled principles of constitutional avoidance would apply. So would conventional rules regarding dictum and holding. Judicial observations made in the course of explaining a case might give important instruction and be relevant when assessing a later claim of qualified immunity. Cf. Wilkinson v. Russell, 182 F. 3d 89, 112, and n. 3 (CA2 1999) (Calabresi, J., concurring). But as dicta those remarks would not establish law and would not qualify as binding precedent. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 67 (1996).

* * *

The distance our qualified immunity jurisprudence has taken us from foundational principles is made all the more apparent by today’s decision. The Court must construe two of its precedents in so broad a manner that they are taken out of their proper and logical confines. To vacate the reasoning of the decision below, the Court accepts that obiter dictum is not just binding precedent but a judgment susceptible to plenary review. I would dismiss this case and note that our jurisdictional rule against hearing appeals by prevailing parties precludes petitioners’ attempt to obtain review of judicial reasoning disconnected from a judgment.

Print this transcript Transcript: 

ORAL ARGUMENT OF JOHN R. KROGER ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 09-1454, Camreta v. Greene, and 09-1478, Alford v. Greene.

General Kroger.

Mr. Kroger: Mr. Chief Justice, and may it please the Court:

In Pearson v. Callahan, this Court gave the lower Federal courts discretionary power to decide substantive questions of constitutional law in qualified immunity cases in order to further the development of constitutional precedent.

If it is valuable for the lower courts to decide these cases, then it is essential that this Court be able to review those decisions in order to ensure that they are accurate.

For this reason, the case is justiciable and should be reviewed on the merits.

Turning to the merits of this case, the Court of Appeals held--

Justice Antonin Scalia: Not so fast.

[Laughter]

Justice Anthony Kennedy: Of course, there are two issues here, and I hope we do get to the substance.

Can you tell me Camreta's current occupation?

Does the record establish that?

Does the record tell us what Camreta is doing now?

Is--

Mr. Kroger: --The record does not, Your Honor, because the mootness issue was raised relatively late in the proceedings, but I'm aware of what his current occupation is.

Justice Anthony Kennedy: --Which is?

Mr. Kroger: He is a child protective services worker with the Oregon Department of Human Services.

Justice Antonin Scalia: What I was about to ask is this: I can agree with you that -- that where there is a -- a determination on the merits, it should be reviewable, but could still disagree that it's reviewable where the requirements for Article III are not met; that is, where there is really no justiciable controversy between the parties.

What -- what is the interest of the -- of the parties who were victorious here?

Mr. Kroger: Your Honor, the interest of Mr. Camreta is the ongoing harm he has in his job.

Under the Ninth Circuit's decision, he is forced to either forgo a regular and recurring duty of his job, which is to interview potential child victims in school, or to face liability for doing so.

Justice Ruth Bader Ginsburg: Why would he face liability?

Because he didn't have the opportunity to challenge that decision, the Fourth Amendment decision; therefore, it would have no preclusive effect on him.

A party who doesn't have the -- if there are alternative holdings and you lose on one, win on the other, you're not precluded by the loss because you didn't have an opportunity to raise it on appeal.

So why would Camreta be precluded?

Why would he face punitive damages as you're suggesting?

Mr. Kroger: Your Honor, the Ninth Circuit opinion does apply to Mr. Camreta.

The court specifically advised Mr. Camreta and others in his position that they are on notice that in-school interviews of students that require a seizure require a warrant, and, thus, the Ninth Circuit decision does have precedential effect and impacts Mr. Camreta.

Justice Antonin Scalia: But it takes--

Justice Sonia Sotomayor: General--

Justice Antonin Scalia: --It takes two to tango, and a case or controversy requires somebody on the other side who cares a fig about the outcome.

And here, S.G., who was the -- the young woman affected in the case, has moved to another State and -- making it virtually certain that she'll never confront this situation again.

She doesn't care what the result of this thing is.

Besides which, I think she's, what, 17 years old or so now?

It's impossible that she will be confronted with the same situation.

Mr. Kroger: Your Honor, I disagree that S.G. has no ongoing concrete stake in the outcome of this case.

In footnote 20 of the Respondent's brief on page 33, the Respondent notes that they have filed a motion in the United States district court to bring their Fourth Amendment claim against Deschutes County, a potential party that has no qualified immunity as a defense.

And, obviously, the legal viability of that -- that claim against Deschutes County will depend very much on the ruling on the merits of this Court.

Justice Anthony Kennedy: This is a Monell claim, and it's -- and the district court has held its ruling, I take it, in abeyance pending -- a ruling for reinstatement of that claim, pending our decision here?

Mr. Kroger: That is correct, Your Honor.

The district court ruled that it was premature until these proceedings were concluded.

Justice Ruth Bader Ginsburg: Well, why isn't the answer, then, that that's the right case to take up?

Because in this case, we have a plaintiff who is not going to be confronted with this situation again and who has put herself out of the running for damages because she didn't -- she didn't challenge the qualified immunity ruling.

So she has no stake in any monetary relief from this claim.

She has no continuing -- the -- what has happened to her, happened to her at age 9, will never happen again now that she's past 18.

So she hasn't -- if she came to court today with her case as an 18-year-old, she would have no case or controversy.

It just seems like the whole case has evaporated.

She has no claim.

She did have a claim for -- for money damages, but she has relinquished that.

So, what -- what genuine controversy is before us?

Mr. Kroger: Your Honor, the controversy remains the Fourth Amendment claim, which is the Respondent is seeking to pursue in the United States district court and that gives the Respondent here a direct financial stake in the viability of their Fourth Amendment argument, and--

Justice Sonia Sotomayor: --I'm sorry.

Isn't that -- isn't that the -- the county's claim?

How Camreta does his job doesn't -- that claim doesn't belong to him; it belongs to the entity who is telling him how to do his job.

And so why don't we go back to Justice Ginsburg's question of why isn't the Monell situation the proper case?

Because there, it's the party interested in how its officers will do their job at its directive.

It has the case and controversy at issue, not S.G.--

Right now, she's never going to be investigated again.

She's in another State.

I understand that she doesn't even ever want to return to Oregon for, probably, fairly good reasons, at least from her perspective.

So, again, why isn't this the interests of the county, not -- not the interests of the officer?

Mr. Kroger: --Your Honor, in Arizonans v. Arizona, the Court recognized that the employee in that case had an interest in how she was able to conduct her job.

The Court decided that the case was -- was moot because she had resigned from her position with the State.

But there was no objection to -- to her standing because she was a public employee that wanted to perform her job in a particular way because she was required to under State law, and here--

Justice Ruth Bader Ginsburg: She was the plaintiff.

In Arizona, we were talking about whether a plaintiff still had a viable claim, right?

Mr. Kroger: --That is correct, Your Honor.

Justice Elena Kagan: General Kroger, I don't think that the question here is really a standing question; it's really whether there is a controversy between this particular plaintiff and this particular defendant such that a judgment in this case would actually affect the legal relationship between the two, between the particular plaintiff and the particular defendant.

So how would it do that?

How would a legal judgment in this case affect the legal relationship between this plaintiff and this defendant?

Mr. Kroger: Your Honor, the -- the -- Mr. Camreta remains a party below, and it's possible that the Court's rulings on the Fourth Amendment merits may impact the Fourteenth Amendment claims that are being made against Mr. Camreta that are alive and in controversy below.

Moreover, this case, even if one strips out the ongoing motion that's been made in the district court, resembles in all material respects Erie v. Pap's A.M., where the Court found that there was standing to bring the case and it was not moot.

And so, there does seem to be an active case or controversy that is equivalent to that that was present in Erie v. Pap's A.M.--

Justice Antonin Scalia: How does it affect the Fourteenth Amendment?

There's a Fourteenth Amendment claim pending below?

Mr. Kroger: --Yes, Your Honor.

Justice Antonin Scalia: And what's the substance of that?

Mr. Kroger: It is a claim of Mrs. Greene to interference with familial rights as a result of certain actions by Mr. Camreta and other defendants.

Justice Ruth Bader Ginsburg: But that didn't have to do with the school search -- the school seizure?

Mr. Kroger: That is correct, Your Honor.

Justice Ruth Bader Ginsburg: So -- and this case presents the question about was this unreasonable?

That -- what's left in the case has to do with the mother's claim, and it has to do with putting the girls in custody, right?

Mr. Kroger: That is correct, Your Honor.

So the--

Justice Sonia Sotomayor: Counsel, if we were to hold this case was moot, what would -- what do you think the appropriate disposition of the case would be?

Mr. Kroger: --Your Honor, I believe if the Court determined that this case was moot, the -- the appropriate remedy would be pursuant to Munson where -- to vacate the Ninth Circuit decision.

Justice Sonia Sotomayor: Well, you don't really want that, because the Ninth Circuit granted qualified immunity.

What would be -- what would we be vacating?

They haven't rendered a judgment on the search warrant issue.

Mr. Kroger: That is correct, Your Honor.

What -- what I think the appropriate remedy for the Court would be would be to effectively--

Justice Sonia Sotomayor: Vacate the opinion.

Mr. Kroger: --vacate the opinion or decision on the Fourth Amendment claim.

Justice Antonin Scalia: That would make you happy, won't it?

Won't that make you happy?

Mr. Kroger: Yes, Your Honor.

The -- the -- I think the only difficulty with that as a -- as a outcome of the case is it undercuts the logic of the Pearson decision.

Chief Justice John G. Roberts: It doesn't just do that.

Is -- is Mr. Camreta in any more comfortable position when he knows that the Ninth -- what the Ninth Circuit thinks on this issue and he just has to wait until there's another case when they can impose the view that they've already spelled out?

I know as a technical matter it's not binding, but if you're Camreta, do you say, well, the Supreme Court vacated that decision, so I can go ahead and do this again and not have to worry about personal liability?

Mr. Kroger: You're correct, Your Honor.

It would place Mr. Camreta and other child protective services workers in the Ninth Circuit in a very--

Justice Antonin Scalia: There are different panels on the Ninth Circuit, aren't there?

Mr. Kroger: --Yes, Your Honor.

Justice Antonin Scalia: And -- and they don't all hold the same thing, fortunately, do they?

[Laughter]

Mr. Kroger: They do they do not, Your Honor.

Chief Justice John G. Roberts: They're supposed to file circuit -- follow circuit precedent, aren't they?

Mr. Kroger: That is correct, Your Honor.

Justice Antonin Scalia: But an opinion that is vacated is not circuit precedent, is it?

Mr. Kroger: It is not, Your Honor.

Justice Samuel Alito: Mr. Camreta would be protected.

He would presumably still be entitled to qualified immunity because a vacated alternative holding certainly could not really establish something, I would assume.

But municipalities, if they continue to participate in -- in questioning of this nature, would not be protected; isn't that right?

Mr. Kroger: That is correct, Your Honor.

Justice Ruth Bader Ginsburg: What happened in -- what -- what has Oregon done in response to this Ninth Circuit decision?

Before it said that the caseworkers could have this kind of interview with the -- the child where there was a suspicion of abuse.

Was there any change in practice in Oregon in response to the Ninth Circuit's decision?

Mr. Kroger: Your Honor, that is not in the record, but I would happy -- be happy to respond.

The State of Oregon provided legal advice advising child protective services workers to attempt to avoid anything that would be a seizure in a school and, in cases where there would pose no risk of danger to the children, to seek consent of -- of a parent before conducting an interview.

Nevertheless, that legal advice puts a significant burden on the child protective services workers to -- to do their utmost to protect Oregon's children.

Chief Justice John G. Roberts: On the merits--

Justice Sonia Sotomayor: Excuse me--

Chief Justice John G. Roberts: --do you think that the same approach you're following here would apply if the investigation focused on the student rather than a third party?

Would in those cases a warrant have to be obtained?

Mr. Kroger: Your Honor, I think in -- in those cases, because parental consent is a viable alternative where the allegation is a child is being abused by another child--

Chief Justice John G. Roberts: No, no, not another child.

It could be anything.

We think the child is, you know, selling drugs, obviously not a 7-year-old, but someone else in the school is involved in illegal activity, him or herself.

Mr. Kroger: --Your Honor, I believe the -- the child abuse context is somewhat unique in that there are very few ways to investigate properly child abuse without speaking to the only witness that's typically available in the case, and that is the child.

Chief Justice John G. Roberts: So -- so you think it would be a different rule if we're talking about some other criminal activity?

The father's selling drugs, and you think the child might have some evidence or at least be willing to talk about that.

Do you need anything other than reasonableness in that case?

Mr. Kroger: Your Honor, it would be the same reasonableness standard that would apply, but I think the courts might reach different conclusions about what would be reasonable in those circumstances.

Justice Anthony Kennedy: Well, on -- we're getting to the merits.

Do you agree that search -- strike that -- that seizure under the Fourth Amendment is the relevant category here?

Mr. Kroger: Absolutely, Your Honor.

Justice Anthony Kennedy: You agree that the child was -- was seized?

Mr. Kroger: Yes, Your Honor, we concede that the child was seized.

Justice Anthony Kennedy: What -- what happens if the teacher tells -- the student is misbehaving on the playground: Go back in the classroom.

You can't -- you sit there by yourself.

You can't be part of recess.

Is that a seizure?

Mr. Kroger: No, Your Honor, I -- I disagree that that would be a seizure, because--

Justice Anthony Kennedy: What made this a seizure?

The fact that it wasn't a teacher?

Mr. Kroger: --Your Honor, the reason we conceded the issue of seizure is we are here on -- on summary judgment, and we took the facts as alleged, which involved transporting the student inside the school.

Justice Anthony Kennedy: Well, but I'm -- I'm asking for your view of the proper category to apply in these cases, and if it is a seizure, then -- then it's just a question of reasonableness, and we'd look at all the circumstances.

Mr. Kroger: That is correct, Your Honor.

Mr. Chief Justice, I'd like to reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Kruger.

ORAL ARGUMENT OF LEONDRA R. KRUGER, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Ms Kruger: Mr. Chief Justice, and may it please the Court:

A number of the questions this morning have focused on the question whether a live case or controversy remains because Respondent has chosen not to challenge the Ninth Circuit's qualified immunity ruling and so purportedly has no continuing stake in the resolution of this controversy.

We think that that's not correct for the reasons General Kroger has given, but it's also not an irreducible minimum of this Court's jurisdiction to correct the mistake that the Ninth Circuit made in this case.

I think, too--

Justice Ruth Bader Ginsburg: What about -- did she -- did she -- let's go back one step.

Does she have any viable claim now?

This is not capable of repetition, evasive of review?

Ms Kruger: --Well, two responses, Justice Ginsburg.

First, as General Kroger mentioned, she has a continuing interest in how this Court resolves this controversy because of her attempt to bring the same Fourth Amendment claim against Deschutes County.

But setting that aside, this Court hasn't universally required that as a prerequisite to exercising its jurisdiction.

I think there are two examples that help to illustrate the point.

The first is the City of Erie v. Pap's A.M. case, in which this Court decided to review a State court injunction entered in favor of a plaintiff who no longer had what we would think of as an Article III stake in the case by the time the case reached this Court.

The plaintiff in that case had left the nude dancing business and had affirmatively stated they had no intention to return.

The Court, nevertheless, reached the merits of the State court decision that was on review because to do otherwise would be to saddle the City of Erie with an ongoing injury.

In the--

Justice Antonin Scalia: There was a dissent in that case, wasn't there?

Ms Kruger: --There was indeed a dissent in that case.

But I would note that there was also--

[Laughter]

--a dissent from the denial of cert in Bunting v. Mellen, in which very much the same situation was presented.

The cadets who brought the challenge to the VMI supper prayer that was at issue in that case had graduated from VMI by the time this case reached this Court.

And I think, as you quite properly noted in your dissent from denial of review in that case, for this Court to essentially insulate those types of constitutional rulings from review would be to undermine the very purposes for which this Court--

Justice Elena Kagan: Ms. Kruger, how does this -- this situation, the qualified immunity situation, differ from a wide variety of other situations in which we might not be able to get to the underlying constitutional ruling?

For example, in any case where there's a constitutional ruling but also a harmless error ruling, or in a Sixth Amendment case where there are standards about ineffective assistance of counsel but then a finding that there's no prejudice.

In all of those kinds of cases, the underlying substantive ruling might be insulated from our review.

How would you say that the qualified immunity situation is different and how would you be able to cabin this rule?

Ms Kruger: --The reason we think the qualified immunity situation is different, it presents a set of exceptional circumstances that weren't an exception to the usual prudential rule, is because the qualified immunity situation is one in which this Court has encouraged courts to undertake these kinds of constitutional rulings for the purpose of changing the legal landscape going forward, for the very purpose of establishing the law so that the -- that qualified immunity doesn't remain perpetually available to officials even though they are engaging in conduct--

Justice Elena Kagan: But, presumably, in every case--

Ms Kruger: --that has been found unconstitutional.

Justice Elena Kagan: --Excuse me.

Presumably, in every case in which a court does these paired rulings, if you will -- it doesn't just say that the error was harmless, but says that there was an error -- there's a purpose to clarify the law.

How is this different, once again?

Ms Kruger: I think that in this situation what we have is not just a preview of how the court of appeals would decide the case subsequently in a case in which it was actually necessary to reach a certain judgment.

What we have is a decision that changes the legal landscape going forward.

It establishes the law such that qualified immunity will not be available in the next case.

And it means that people like Petitioner Camreta and other child protective services workers who are doing their best to protect children from abuse are now on notice that if they attempt to detain temporarily a child in school for the purposes of trying to confirm or dispel a reasonable suspicion of child abuse without a warrant supported by probable cause, that they will invite lawsuits that would put them on the line for personal monetary damages.

Justice Antonin Scalia: But that wouldn't be the case if the opinion were vacated--

Ms Kruger: That's true.

Justice Antonin Scalia: --under Munsingwear?

Ms Kruger: That's true, Justice Scalia, and I think that if that's the disposition that this Court thinks is appropriate, we would be certainly be happier with that than a rule that says--

Chief Justice John G. Roberts: It would be--

Ms Kruger: --an incorrect constitutional ruling.

Chief Justice John G. Roberts: --It would be a partial vacatur, right?

The Court's done that before, hasn't it, where we vacate part of a decision under Munsingwear?

Ms Kruger: That's correct, Mr. Chief Justice.

But I would note that a vacatur rule would come with certain costs that I think this Court should keep in mind as it decides what the appropriate disposition of this case is.

The reason that Respondent has so vigorously objected to that disposition is because it is inconsistent in some ways with the very reason for permitting courts of appeals to undertake this kind of constitutional determination in the first place.

It undermines the -- the development of the constitutional law if this Court simply wipes the -- the slate clean but doesn't exercise its own authority to clarify the law by correcting what the Ninth Circuit has done.

And I think, as the Chief Justice has quite correctly pointed out, it also does nothing to dispel the cloud of uncertainty that hangs over individuals within the territorial jurisdiction of the Ninth Circuit.

Chief Justice John G. Roberts: Well, I'm not so sure he was correct.

The--

[Laughter]

If it's vacated, it indicates that there's no established law on that question, and it seems to me Camreta would be free to do what he considered appropriate under the circumstances, and if somebody tries to impose personal liability on him, it seems he has an even stronger case than he might have before.

Ms Kruger: I think that's correct, Mr. Chief Justice, and I think for that reason we would not object to that disposition in this case.

We would just observe that that disposition is one that does not sit particularly comfortably with the reasoning of Pearson and the line of cases that comes before it, that recognizes that the reason why we encourage courts of appeals to undertake these determinations in the first place is to promote the development of constitutional law and to ensure that the law doesn't remain not clearly established in perpetuity.

Justice Anthony Kennedy: It seems to me it would affect Camreta's behavior and that of other child protective officers.

The lawyer would explain: Now, legally this is not binding; it just never happened.

But three judges of the court of appeals in a reasoned decision have explained why this is contrary to the Constitution, and it would seem to me that any conscientious law enforcement officer would -- would take that seriously into account.

Ms Kruger: I think that's absolutely right, Justice Kennedy.

Justice Antonin Scalia: Why?

What's the test?

Isn't the test clearly established law?

Ms Kruger: That's right.

Justice Antonin Scalia: Would this be clearly established law under any -- any conceivable interpretation of that?

Ms Kruger: I think it's -- it's true that if this Court were to vacate the Ninth Circuit's constitutional ruling, Mr. Camreta and others who are similarly situated wouldn't face the very significant concrete prospective effect of this decision, which is to strip them of qualified immunity in future cases.

They would be able to argue, as you're suggesting, that the law is not clearly established.

At the same time--

Justice Sonia Sotomayor: If we told them--

Justice Ruth Bader Ginsburg: You have very limited time.

Could you -- could you go to the merits of the Fourth Amendment question and give us the Government's position on that?

Ms Kruger: --Certainly, Justice Ginsburg.

The Ninth Circuit in this case held that the temporary detention of a child in school to confirm or dispel suspicions that that child is being abused is unconstitutional unless the questioning officials have a warrant, probable cause, or parental consent.

We think each of those requirements is unjustified as a matter of Fourth Amendment law and imposes a serious burden on the conduct of the -- of the government at the initial stages of a child abuse investigation.

As--

Justice Sonia Sotomayor: --Counsel, would -- I'm interrupting you only for a quick reason.

What's the test?

Is it a question of whether the seizure is reasonable or not?

Ms Kruger: --That's correct, Justice Sotomayor.

The question is reasonableness.

Justice Sonia Sotomayor: All right.

So -- so that would be your proposed test.

If we were to say you don't need any of those three things right now, where would that leave us or leave the courts below on determining whether what happened here was reasonable or not?

Meaning, what if a child is called in and says, I don't want to talk to you without my mom; and they continue to speak to the child?

Is that reasonable?

Ms Kruger: I think that the answer is that would go to the -- the question of the manner in which the -- the interview is conducted, as opposed to whether it's--

Justice Sonia Sotomayor: So how do we--

Ms Kruger: --reasonable at its inception.

Justice Sonia Sotomayor: --How do we develop the law, or how do we help develop the law in this case if we answer your question but leave unanswered with no parameters, any idea -- because we have no set of facts; no one's going to review that question -- of what is reasonable in this context?

Ms Kruger: Well, the question that the Ninth Circuit answered in this case was a question that concerns the justification for the interview at its inception.

The Ninth Circuit said a warrant, probable cause, or parental consent is required from the very outset.

That would be true whether an interview lasted 2 hours or 10 minutes, whether the child was responsive, whether the child wasn't.

Justice Sonia Sotomayor: That -- you see, that's the problem with taking up a case with no case in controversy, because what do we do?

We don't remand for them to reach the second question, which is really the one that law enforcement needs some help on.

Ms Kruger: Well, I -- I would disagree with that proposition.

I think law enforcement very much needs help on the questions the Ninth Circuit actually decided because the warrant or probable cause requirement is one that has a very significant effect on the way that they carry out their very important business in this area.

If the Court has no further questions--

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Kubitschek.

ORAL ARGUMENT OF CAROLYN A. KUBITSCHEK ON BEHALF OF THE RESPONDENTS

Ms Kubitschek: Thank you.

Mr. Chief Justice, and may it please the Court:

There is no case or controversy between S.G. and the Petitioners.

That ended when--

Chief Justice John G. Roberts: Then why are you -- why are you here?

[Laughter]

You're not challenging the qualified immunity ruling?

Ms Kubitschek: --Precisely.

Chief Justice John G. Roberts: Yet, you have -- yet, you have -- why didn't you just go away?

[Laughter]

Ms Kubitschek: Mr. Chief Justice, we are not here voluntarily.

[Laughter]

Chief Justice John G. Roberts: No, I know that.

But why--

[Laughter]

I do know that.

But on the other hand, you had no -- you could have filed a paper saying we have no continuing interest in the case, but you haven't done that.

You've fought the legal issues on the merits in -- in an area where it's been suggested you don't have a stake.

Ms Kubitschek: We -- S.G. does not have a legally cognizable stake, Your Honor.

She won a moral victory when she obtained a ruling in her favor on the Fourth Amendment claim in the Ninth Circuit, but as this Court said in Hewitt v. Helms, a moral victory is no victory at all, but--

Chief Justice John G. Roberts: So you have objection if we entered a Munsingwear order vacating the decision of the Ninth Circuit on the merits of the dispute?

Ms Kubitschek: --Well, Your Honor, the -- we would submit that the Munsingwear test would not apply in this case because Munsingwear, which permitted vacating a decision when it became moot, talked about decisions which become moot through happenstance, and--

Chief Justice John G. Roberts: Well, again--

Ms Kubitschek: --the reason for that is because of preclusion.

I'm sorry.

Chief Justice John G. Roberts: --I'm sorry.

Again, I get to the question, why do you care?

Why do you care whether we vacate the -- the order or not?

Your position is your client has no continuing interest in the case.

Ms Kubitschek: That -- our client has no legally binding, legally cognizable interest in the case.

She has an interest in protecting her moral victory, as do -- and in the issue, as do the many amici who filed briefs on her behalf.

Justice Ruth Bader Ginsburg: She's asserting the interests of other children who would be in the situation that she was once in, but no longer; but we have said the plaintiff herself must have a live controversy, and there was no class action here.

Ms Kubitschek: That -- that is correct, Justice Ginsburg.

She does not have an interest, and the case is moot.

Justice Samuel Alito: But you want to have the Fourth Amendment decision preserved and have it govern an enormous chunk of the country so that all the States in the Ninth Circuit have to comply with it, and anybody -- any individual officer who doesn't comply with it would do so on pain of personal liability, but you don't want that ground-breaking decision to be subject to review by this Court on the merits.

Is that a summary of what you want?

Does that make any sense?

Ms Kubitschek: Your Honor, the -- the case -- if the case is truly as important to other employees of the States in -- within the confines of the Ninth Circuit, it will arise again, and this Court will have the opportunity to decide the issue again between parties who have a live stake in the issue; or it will arise in another circuit, and it will present a live controversy between parties who have a stake.

Justice Antonin Scalia: So, you want us -- so Munsingwear.

You don't want us just to leave it sitting because there's no controversy; you want us to erase that holding below, right?

Ms Kubitschek: No, Your Honor, we would not ask the holding below be erased.

That's--

Justice Antonin Scalia: Well, then -- then the answer you just gave doesn't make any sense.

You say it can -- you know, it can arise again.

That would be the answer of someone who wants us to eliminate the holding here: Don't worry; it will come up again in a context where, on appeal, somebody will have an interest in arguing to -- to sustain it, but that interest doesn't exist here.

That's the argument you're making, but that's the argument of someone--

Ms Kubitschek: --I'm sorry--

Justice Antonin Scalia: --who wants us to Munsingwear.

Ms Kubitschek: --I'm sorry, Your Honor, I misspoke.

It will come up -- if it is as -- if the practice is as widespread as the Petitioners claim, it will come up again in other circuits, and this Court will have the opportunity to review it and--

Justice Anthony Kennedy: Well, but Justice Alito's question was addressed to the Ninth Circuit.

In the Ninth Circuit, it's not going to come up again if we assume that our public employees are going to be law-abiding.

They're bound by this in the Ninth Circuit.

Ms Kubitschek: --Well, Your Honor, I guess that's--

Justice Anthony Kennedy: And you -- and you want them to be bound, and yet you say there's -- that the case is moot.

I just don't understand it.

Ms Kubitschek: --Well, Your Honor, that leads to the question of what exactly are they bound by?

And our reading of the court of appeals decision is not nearly as broad as the Petitioners' reading.

The court of appeals said specifically our caseworkers and police officers are always allowed to question children in a protractive custodial setting with--

Justice Ruth Bader Ginsburg: Where are you reading in the holding of the court of appeals?

Because I was under the impression that they did say there's only three ways: One is you get a warrant; another is you get parental consent; and a third is exigent circumstances.

I thought that was the -- the ruling of law by the Ninth Circuit.

Ms Kubitschek: --That was -- that was the ruling as it applied to S.G. herself, Justice Ginsburg.

This was not a class action lawsuit, and the court was deciding what happened to one 9-year-old child on February 24th, 2003.

Justice Ruth Bader Ginsburg: Well, let's see where they -- I thought that, yes, the case is about a single plaintiff; it's not a class action.

But they're making a rule of law.

What does the Fourth Amendment require?

Ms Kubitschek: Okay.

On page 1022, Your Honor, it says:

"We consider the relatively straightforward question whether an in-school seizure and interrogation of a suspected child abuse victim is always permissible under the Fourth Amendment without probable cause and a warrant or the equivalent of a warrant. "

And the court -- and the court said: No, not always and not in this case.

And if this Court does reach the merits of -- of this case, we would ask this Court to uphold a rule that -- stating that a protracted custodial interview of a child by police and child welfare investigators is presumptively unconstitutional unless they have a warrant or court order or parental consent or exigent circumstances.

Justice Samuel Alito: What is there in the Ninth Circuit's opinion, which -- which generally requires a warrant, to suggest that the length of the interrogation was relevant to their decision?

I mean, at least the child protective services need to decide whether they need a warrant before they begin the questioning, no matter how long it's going to last.

Where does it say that the length is relevant to the -- to the issue that they decided?

Ms Kubitschek: Well, Your Honor, the -- the length of the questioning has been historically important to this Court's jurisprudence.

It distinguishes, for example, between a Terry stop and a seizure.

And this Court said, for example, in the United States v. Place, that a 90-minute detention is -- falls out of the realm of a Terry stop and into the realm of a seizure for which full Fourth Amendment protections are required of a criminal suspect.

And this Court has also said, in Soldal v. Cook County, that it would be anomalous if people who are not suspected of any wrongdoing at all had fewer Fourth Amendment protections than--

Justice Antonin Scalia: I don't understand.

It seems like a very strange rule to me.

You mean it's okay for a child protection worker to just ask the child passing in the hall, you know, has your -- or not passing in the hall.

Come into this room, I have a question for you: Has your father been abusing you?

And if the child says yes, thank you, and the child goes, then that's okay?

Ms Kubitschek: --We would--

Justice Antonin Scalia: Because it was a short interview?

Ms Kubitschek: --The -- I didn't mean to -- that the length of the interview is the only factor, Your Honor.

Justice Antonin Scalia: Oh.

Ms Kubitschek: One of the other factors is that the -- that the seizure is determined by the fact that the police and child welfare worker removed the child or removed any individual from the place where she is--

Justice Antonin Scalia: Right.

Take her into a room.

I see that.

Ms Kubitschek: --and bring her to another place, and then--

Justice Antonin Scalia: But once they take her in a room, it depends on how long the interview is; is that right?

Ms Kubitschek: --That -- that goes to the question of whether or not there was a seizure.

Justice Antonin Scalia: Whatever.

Ms Kubitschek: In this case, it was stipulated that there was a seizure.

Justice Antonin Scalia: We're talking about rules for the future; we're not talking about this case, and you're asking us to adopt a rule for the future that says if it's very brief, it's okay, but if it's longer it isn't okay.

Right?

That's what you want us to adopt?

Ms Kubitschek: That -- that if -- if it were very brief and the child was not removed from her classroom--

Justice Antonin Scalia: No, no, no, no.

Removed.

There has been a seizure, but it's been a very brief seizure, just as a Terry stop is a very brief seizure.

Ms Kubitschek: --Our position would be that because the -- of the importance of consent here to a seizure, that the -- that there would need to be a court order to remove a child from her classroom and to take her to another room and then--

Justice Samuel Alito: On the issue--

Ms Kubitschek: --or parental consent.

Justice Antonin Scalia: So you're changing your position: You need a court order, no matter how brief; is that it?

Ms Kubitschek: I think that has been our position, and I'm sorry if I didn't make it clear.

Justice Antonin Scalia: Oh, okay.

Justice Samuel Alito: --Well, on the issue of consent, do you read the Ninth Circuit's opinion as having an age limit?

Suppose that the child is, let's say, 16 years old.

Is the child at 16 incapable of consenting to questioning?

Ms Kubitschek: Well, the way that we read the Court of Appeals decision and the rule that we would ask this Court to adopt, that is, seizure and for a custodial interrogation is presumptively unreasonable without parental consent or a court order leaves open the possibility that there are, in fact, some children who are of suitable age and discretion to knowingly make a decision whether or not to talk to an armed police officer and a caseworker without their parents having to make it for them.

But--

Justice Sonia Sotomayor: Counsel, are you -- I just want to make sure I understand your position.

Answering Justice Scalia's question: Child walks into the room -- is taken out of their classroom, walks into the room.

The officer says: We've heard that your mommy and daddy are doing some things to your private parts; is that true?

And the child says -- 9-year-old child says: I wish somebody had asked me before.

I'm so afraid of my daddy.

He does these horrible things to me.

Are you seriously suggesting that if the police stay there for an hour debriefing that child as to the circumstances of that situation, that that's a seizure?

It seems to me that what you--

Ms Kubitschek: --A seizure, yes, but that would have exigent circumstances, and that would get it out of the warrant requirement.

Justice Sonia Sotomayor: --Well, but what does that have to do or change the police bringing a child into a room and just asking the question?

When does -- that's what you seem to have said to Justice Scalia, which is that the mere removal from the classroom is the -- the defining feature of seizure.

So it can't be that.

Ms Kubitschek: Well--

Justice Sonia Sotomayor: They don't know if there's exigent circumstances until they ask the question.

Ms Kubitschek: --That -- that's correct.

Justice Ruth Bader Ginsburg: You got a stipulation that there was a seizure, so--

Ms Kubitschek: What?

Yes, there was a seizure.

Justice Ruth Bader Ginsburg: --There was never any argument that was not at issue in this case.

Given that there was seizure--

Ms Kubitschek: That's -- that's correct.

Justice Ruth Bader Ginsburg: --the question is: Is it reasonable?

Ms Kubitschek: Correct.

Justice Ruth Bader Ginsburg: Have you, in the -- many of the questions have gone to leads, but this is initially a social worker's investigation.

And you said, when stating what the Ninth Circuit's rule was, that police are in combination with the caseworker.

Suppose we took out -- out of the picture.

He didn't utter a word in the interview.

Suppose we take the sheriff, deputy sheriff, out.

The only one who comes to the school and asks to talk to this child is the caseworker from the department of health?

Ms Kubitschek: Well, it would depend on, I think, the larger picture, whether or not there was police entanglement, as this Court ruled in Ferguson v. The City of Charleston.

In this particular case, the--

Justice Ruth Bader Ginsburg: If the information elicited from the child is that she has been abused by her father, then there is a likelihood that there will be police interest in that.

Ms Kubitschek: --Well, and this -- this Court recognized also that possibility in Ferguson v. The City of Charleston, that the -- the nurses at the hospital would call child protective services, but the -- the -- you have to look at it from the beginning, and in this case, the case began when -- on February 10th, when the police got involved.

The police did not report the matter to the child protective investigator until 10 days later, and then they went out together.

Subsequently, the child protective investigator testified before a grand jury as part of the ongoing law enforcement investigation and, in fact, when he was questioned at his deposition, petitioner Alford said that his reason for being at the school was for law enforcement purposes.

Justice Samuel Alito: But what is your answer to Justice Ginsburg's question, suppose it was just Mr. Camreta or suppose it was the school nurse, would the answer be the same?

Ms Kubitschek: No, it would not be the same if it was the school nurse or Mr. Camreta.

And the -- the reason is that the school nurse is part of the school administration, and the school has an obligation and the authority under T.L.O. act and in Earls to make rules and carry out procedures that will protect the children of the school and promote learning, and if the child comes--

Justice Samuel Alito: So if it was just Mr. Camreta and he--

Ms Kubitschek: --If Mr.--

Justice Samuel Alito: --and he taped the conversation and then later turned it over to the -- to the police if he discovered evidence of child abuse, there would be no problem?

Right?

Ms Kubitschek: --If Mr. Camreta came in from the outside, he would not fall within the T.L.O. rule, because in T.L.O. this Court said specifically that their ruling does not apply to individuals such as police officers who come from the outside in -- in order to deal with situations that are not related to the school, and nobody is saying that S.G. was abused while she was at the school.

Justice Stephen G. Breyer: Same circumstance.

Was there a seizure?

No -- no professor -- no policeman?

Ms Kubitschek: If -- if--

Justice Stephen G. Breyer: School nurse?

Ms Kubitschek: --The school nurse?

Justice Stephen G. Breyer: Seizure?

Ms Kubitschek: Probably not a seizure.

Justice Stephen G. Breyer: And so, it's not a seizure if exactly the same thing happens but there is no outside person there, but it is a seizure if there's an outside person?

Ms Kubitschek: If the outside person comes into the school--

Justice Stephen G. Breyer: That's the rule as to whether there's a seizure?

Ms Kubitschek: --That's one of the factors to look at.

Justice Stephen G. Breyer: No, no, no, whether there's a seizure?

Ms Kubitschek: Yes.

Justice Stephen G. Breyer: Okay.

What makes it a seizure?

Go inside and speak to the principal, I saw you push the child at recess.

We want to find out who was pushing you.

Go inside and talk to the principal.

Seizure?

Ms Kubitschek: Your Honor, I believe that it -- it would be considered a seizure, although that's not our case.

Justice Stephen G. Breyer: Everybody is going to stay 5 minutes after class, too much talking today.

Seizure?

Ms Kubitschek: That -- that, Your Honor, it might be a seizure.

Again, it's T.L.O.--

Justice Stephen G. Breyer: Well, that's what I need to know, because I don't know see if there is no seizure, how it could have been an unreasonable thing, if there isn't even a seizure.

Ms Kubitschek: --If -- if the caseworker comes to the school under circumstances where a child would feel free to leave or--

Justice Stephen G. Breyer: You're not free to leave class.

Ms Kubitschek: --Well, Your Honor, that's -- children -- this is correct, children have lesser expectations of privacy, but when they are forcibly taken out of class and moved to another location--

Justice Stephen G. Breyer: Go to the principal's office.

Too much talking.

Ms Kubitschek: --That -- that would be -- Your Honor, if that is a seizure, it would fall within T.L.O., precisely within T.L.O., whereas--

Justice Antonin Scalia: If you send her to the school nurse, it's not a seizure, but if the school doesn't have a nurse and it brings in a nurse from the outside and say, you know, we think you have some contagious disease, we would like you to speak to this -- then it becomes a seizure?

Ms Kubitschek: --Well, Your Honor, the T.L.O. framework would certainly apply in that situation, where you have a child who has a potentially contagious disease, then the analysis you follow--

Justice Antonin Scalia: Contagious, it's just a disease that's going to kill this child and nobody else, okay?

[Laughter]

Ms Kubitschek: --Your Honor, that certainly also would fall within the T.L.O.--

Justice Antonin Scalia: Okay.

Ms Kubitschek: --special needs exception.

Justice Antonin Scalia: So why doesn't it -- likewise, it's not a nurse, but it's a social worker who's brought in to interrogate the child about something else that is going to very much harm that child, why is that any different?

Ms Kubitschek: Well, Your Honor, because child welfare investigations are also harmful to children.

And when -- when a child is asked, interrogated about whether or not her father touches her inappropriately, that's not a neutral action.

Whether or not she has been abused that causes trauma to the child--

Justice Antonin Scalia: It has nothing to do with whether there's a seizure, nothing whatever to do with whether there's a seizure.

Ms Kubitschek: --If -- if there--

Justice Antonin Scalia: The questions you ask after the seizure don't make it a seizure or make it not a seizure, do they?

Ms Kubitschek: --They -- they affect the constitutionality of the interaction between the child and the--

Justice Sonia Sotomayor: Doesn't that go to the question of the reasonableness of the scope of the seizure?

Don't we have Lidster and -- and other jurisprudence that basically addresses this question and says is this type of seizure or stop detention reasonable?

And it's hard to swallow that if a police officer asks a child are you being abused and the child says, yes, I need help, it is nearly impossible to think that that seizure is unreasonable.

You're -- you're -- you're -- it may well be that 2 hours for a protesting child would be, but isn't that all subject to a question of reasonableness as to the scope of the seizure?

Ms Kubitschek: --Well, Your Honor, because--

Justice Antonin Scalia: She's helping you, I think.

Ms Kubitschek: --I'm sorry?

Justice Antonin Scalia: She's helping you, I think.

[Laughter]

But -- but that goes to the reasonableness of the seizure.

I was asking you about whether there has been a seizure.

Step one, has there been a seizure?

And you're saying that in a lot of these situations there simply hasn't been a seizure.

Now, once there is a seizure, then we can inquire to whether it's unreasonable or not.

But -- but those are two distinct questions, and -- and we've been discussing the mere existence of a seizure.

Now, true in this case it was already conceded, but you're asking us to adopt a rule for future cases, and we can't adopt a rule for future cases until we know what we're talking about when -- when -- when we talk about a seizure.

Chief Justice John G. Roberts: He was not trying to help you.

[Laughter]

Ms Kubitschek: I'm aware of that.

But, you know, that again is perhaps a good reason why this Court should not reach the merits of the Fourth Amendment question, because in this particular case it was conceded that there was a seizure so early in the -- in the case that the normal development of facts which, as Justice Scalia, you have pointed out, whether or not there is a seizure is certainly dependent on the individual facts of the encounter between the individual child and the individual police officer.

Chief Justice John G. Roberts: So you're--

Ms Kubitschek: Those facts were not developed.

Chief Justice John G. Roberts: --So that's your argument, again, that we shouldn't reach the merits?

Ms Kubitschek: That's correct.

Chief Justice John G. Roberts: Now, do you agree that if we vacate the court of appeals' decision on the merits, that if Camreta had did exactly what he did in this case again, that he would not face personal liability?

Ms Kubitschek: If you -- if you vacate the decision on the merits--

Chief Justice John G. Roberts: Right.

Then that cannot be used -- that cannot be used to establish that there's clearly established law.

And in the absence of clearly established law, he cannot be found personally liable?

Ms Kubitschek: --That -- that would be correct.

Chief Justice John G. Roberts: So if he did exactly the same thing, he would still be entitled to qualified immunity?

Ms Kubitschek: He would still be entitled to qualified immunity, but if this Court were to vacate, this Court would be effectively be telling lower courts that they should not follow the Pearson sequence ever because if they -- if the lower court reaches a constitutional issue and then rules that the defendant has qualified immunity, which Pearson said that they could do, that this Court would then say no, don't--

Justice Antonin Scalia: Not always.

Not always.

Only when there is no longer a case in controversy.

In -- in many cases there will still be a case or controversy.

Ms Kubitschek: --Well--

Justice Antonin Scalia: It will be something that could be replicated again in the future for some other reason.

It -- it isn't true that it will just eliminate the whole purpose of our -- of our jurisprudence in this area.

In many cases the -- the decision below can be appealed, and -- and we will rule on the -- on the constitutional question.

Ms Kubitschek: --Which is -- that's -- that's correct--

Justice Antonin Scalia: But you moved away, I mean if -- you know, it's a different situation.

Ms Kubitschek: --It -- it's a different situation, but if they're in the situations where individual defendants have qualified immunity, it has been the procedure in this Court not only since Pearson but really going all the way back to Siegert v. Gilley, 1991, where the Court recommended that the lower courts reach the constitutional issue -- in Siegert this Court said that they can.

In County of Sacramento v. Lewis, the Court said that they -- it's the better approach.

Justice Samuel Alito: Well, could you have cross-petitioned in an effort to get damages, so if you had wanted to preserve the issue, you surely could have done that, couldn't you?

Ms Kubitschek: S.G. could have cross-petitioned, but she decided not to.

Justice Elena Kagan: But then we wouldn't have a case.

Justice Anthony Kennedy: But there's nothing in the record that indicates that you're withdrawing your Monell action against the municipality, is there?

Ms Kubitschek: The Monell action against the municipality was dismissed on the facts.

Justice Anthony Kennedy: But isn't it -- isn't a motion to reinstate it still pending in the district court?

Ms Kubitschek: The motion to reinstate it was denied without prejudice to reinstate after this Court rules, and--

Justice Anthony Kennedy: All right, so it's still alive.

And--

Ms Kubitschek: --It's still alive.

Justice Anthony Kennedy: --there's nothing in the record to indicate that you won't ask that it be reinstated.

Ms Kubitschek: That's correct.

Justice Elena Kagan: Is that against a different party, Ms. Kubitschek?

Ms Kubitschek: That is against Deschutes County, Justice Kagan.

Chief Justice John G. Roberts: But who is -- who is on the other side of the county?

Ms Kubitschek: I'm sorry; who's on the other side of the--

Chief Justice John G. Roberts: The claim pending below involves which two parties?

Ms Kubitschek: --Oh, it -- it involves S.G. and the county.

Chief Justice John G. Roberts: Oh.

So--

Ms Kubitschek: --claim that it's alive?

The claim that is alive involves different incidents, incidents that took place in March of 2003, not--

Chief Justice John G. Roberts: --Does the decision on the merits here have any relevance whatever to the action that's still pending?

Ms Kubitschek: --No.

Chief Justice John G. Roberts: So you agree that if -- if this is -- we vacate the decision on the merits, that's of no meaning whatever in the pending action below?

Ms Kubitschek: It would not have an effect on the action.

Justice Stephen G. Breyer: Suppose that we dismiss the case as improvidently granted, while indicating in an opinion some of the questions that we find difficult such, for example, as the seizure question, et cetera; what kind of impact would that have in your opinion?

Ms Kubitschek: If the Court were to dismiss the case as--

Justice Stephen G. Breyer: Yes, if -- while indicating the reasons being in part that there are difficult questions here, suggesting what they are.

What would the -- impact would that have?

Ms Kubitschek: --Well, Your Honor, it would have some impact at least on the Petitioner's position.

The Petitioner's opinion as stated in their brief that all seizures of children to investigate child abuse are constitutional at their inception, meaning there -- there are no limits, there are no constraints on what a child abuse--

Justice Ruth Bader Ginsburg: It wouldn't affect your client in any way, because she's out of it and you were candid from the beginning to say as far as she's concerned this is a moot case; but as far as Camreta and the other officers are concerned, we were told by Oregon's representative that they are not -- that they have tailored their behavior to conform to this decision.

Ms Kubitschek: --And, Your Honor, that--

Justice Ruth Bader Ginsburg: So--

Ms Kubitschek: --that would be to -- to tell the officials who investigate child abuse that in the name of protecting children, they do not have free rein to do anything and everything that they think is appropriate, because what they do harms children, including the very children they claim to be trying to protect.

As Justice Breyer said, even raising those questions would -- would be beneficial to children who are forced to undergo child abuse investigations, 75 percent of whom have not been abused at all, and who find the experience psychologically traumatic.

Chief Justice John G. Roberts: If you're making an argument on something that you've already told us you have no cognizable interest in -- correct?

Ms Kubitschek: Correct.

Justice Samuel Alito: If you were designing what you would regard as an ideal system, and you're very knowledgeable in this -- in this area, and you concluded that some kind of approval by a detached individual should be required before something like this is allowed, would you set the standard at probable cause?

Would you say that the child protective service has to have probable cause that there's abuse before they can question the child to find whether or not there was abuse, or would you set it at some lower level?

Ms Kubitschek: Well, in fact, Your Honor, the -- most of the States have a procedure for seeking court approval, and their -- they differ in whether they require probable cause or reasonable suspicion or something like reasonable cause; and so while we put in our brief that the seizure of S.G. should have been based upon probable cause, given the law enforcement component, if there was -- if Alford, the deputy sheriff, were not there at all, and it was purely a child welfare seizure and the child welfare caseworker were going to a juvenile court judge and seeking some kind of judicial approval, the -- because the laws of the States differ between reasonable suspicion and probable cause, I would suggest that the better course would be to let this play itself out between those two legal standards.

Chief Justice John G. Roberts: Thank you, counsel.

Ms Kubitschek: Thank you.

Chief Justice John G. Roberts: General Kroger, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF JOHN R. KROGER ON BEHALF OF THE PETITIONERS

Mr. Kroger: Mr. Chief Justice, and may it please the Court--

Justice Sonia Sotomayor: General, just a point of clarification before you go on.

You said earlier that your office had advised the county not to seize children.

Does that mean they're not talking to children at all?

Is -- you used the word seized.

Are you advising them that they don't have the right to talk to children?

Without their parental consent or a warrant?

Mr. Kroger: --No, Your Honor, but they would have to talk to children in a way which runs no risk of being found of seizing the children within the meaning of the Ninth Circuit decision.

Justice Antonin Scalia: Well, so then walking along the hall in the school, right?

Mr. Kroger: I--

Justice Antonin Scalia: Just come up alongside:

"By the way, I wanted to ask you whether your mother --. "

[Laughter]

Mr. Kroger: --Yes, Your Honor, and you can see the problem which the Ninth Circuit decision causes practically on the child welfare system in the State of Oregon.

The -- Mr. Camreta and other child protective services workers under the Ninth Circuit decision face an enormous burden.

In most of these cases it is impossible to establish probable cause to get a warrant without first speaking to the child because the child is usually the only witness that is available to the government; and so to require, as the Ninth Circuit has here, that we obtain a warrant prior to even speaking to a child victim places--

Justice Sonia Sotomayor: What's the standard?

I mean, I just assume you're not suggesting that this procedure could be used with every child in every school without some ground for suspicion, correct?

Mr. Kroger: --No, Your Honor, we believe that reasonable suspicion is the -- is the proper basis before making a seizure of a child to conduct one of these inquiries.

Significant here in Griffin and subsequent cases like Lidster, the Court has recognized that the relationship between the State and the person being searched or seized is significant to the reasonableness analysis, and here it is not an adversarial relationship.

The child and the State share a significant interest in making sure that that child is safe; and were the government to continue to be put in a position of not being able to speak to a child until probable cause has developed in some other way, children will continue to be placed at risk.

Justice Elena Kagan: But, General, I take it that that problem disappears -- tell me if I'm wrong -- if we find there's no jurisdiction.

If we Munsingwear this case, the decision is wiped off the case, you return to status quo ante, and you tell all your people that they can do what they would have done beforehand; is that right?

Mr. Kroger: That is correct, Your Honor.

That would be a -- a significant step forward for Mr. Camreta and others similarly placed.

The -- the challenge is that those kind of claims then would be perpetually subject to -- to qualified immunity because the law would not be clarified.

And that--

Justice Sonia Sotomayor: Would you -- are you -- and I guess what I'm asking is, let's assume we go ex ante.

At any moment that an agency speaks to a child, they can move from a nonseizure to a seizure, correct?

And some seizures can be reasonable and some can't, right?

Mr. Kroger: --That's correct, Your Honor.

Justice Sonia Sotomayor: And law enforcement is never going to know where that line of reasonableness or unreasonableness is, is that correct?

Mr. Kroger: That's correct.

Justice Sonia Sotomayor: That's in -- that's in the nature of doing this without a warrant, isn't it?

Mr. Kroger: Yes, Your Honor.

That's part of the reason we agreed that a seizure was committed here, so that law enforcement are not placed in a difficult position every time they speak to a child, of trying to make their own determination as to whether--

Justice Sonia Sotomayor: But they do it anyway, meaning even if we say that they can seize the child, you would still have to not do a seizure that was unreasonable.

You wouldn't -- in scope.

They can't speak to the child endlessly, can they?

Mr. Kroger: --No, Your Honor, that's correct.

The government officials will have to conduct that -- that seizure in a reasonable manner for a reasonable duration.

That's different, I think, though, Your Honor, than the threshold question of if they start to talk to a child, of trying to judge in the middle of an interview, have we gone too far, has a seizure occurred.

Justice Sonia Sotomayor: I'm not quite sure why you stipulated to a seizure in this case, but that was your strategic choice.

Mr. Kroger: Mr. Chief Justice, the question is whether vacating the decision will have an impact on the litigation below, and it will.

The Respondent is seeking to preserve the Ninth Circuit decision precisely to aid the Fourth Amendment claim that the Respondent is making against Deschutes County, and thus, this is somewhat analogous to the situation in the Pacific Bell case, where you have a Petitioner and Respondent seeking different remedies from this Court in light of the impact that it will have on subsequent litigation.

Justice Samuel Alito: Ms. Kubitschek said it was based on different events.

Is that right or not?

Mr. Kroger: The due process--

Justice Samuel Alito: The Fourth Amendment claim against the county is based on -- on this interview?

Mr. Kroger: --Your Honor, I have not seen the new complaint, but my understanding is that it is the same event and same claim.

Chief Justice John G. Roberts: Thank you, Counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Elena Kagan: This case arises from a child abuse investigation conducted in Oregon nearly a decade ago by a State Child Protective Services caseworker and a County Deputy Sheriff.

Petitioner's here are Bob Camreta, the case worker and James Alford, the sheriff.

They interviewed respondent SG who was then nine years old at her elementary school about allegations that her father had sexually abused her.

Her father was indicted on that offense, but the jury didn't reach a verdict and the charges were dismissed.

SG then sued the officials for money damages on the ground that the in-school interview violated the Fourth Amendment's bar on unreasonable seizures.

The District Court reentered some re-judgments to the officials and the Ninth Circuit affirmed.

The Court of Appeals first wrote that the interview did violate the Fourth Amendment because Camreta and Alford lack a warrant.

But the Court then held that the officials were entitled to qualify immunity, because the law requiring a warrant was not clearly established at the time they conducted the interview.

So under the Court's decision, the officials did not have to pay SG any money damages.Camreta and Alford, nonetheless, asked us to review the Ninth Circuit's ruling that their conduct violated the Constitution.

Our opinion first considers whether we may review a lower court's constitutional ruling, here that the Fourth Amendment was violated at the request of Government officials, who won final judgment on immunity grounds.

The answer is yes.

We generally may review petitions in this posture.

Article III of the Constitution limits our jurisdiction to cases in controversies.

An appeal brought by immunized officials usually qualifies because the constitutional ruling that the official's challenge has prospective effect on the parties.

The Court issuing the ruling has said, “Although this official is immune from damages today, what he did violates the Constitution and that he or anyone else does that thing again, that person will be liable for damages."

Now, if the official regularly engages in that conduct as part of his job, he suffers an injury based on that constitutional ruling.

So long as it continues and effect, he must either change the way he performs his duties or risk a damages action against him.

And conversely, if the person who initially brought suit to challenge the practice may again be subject to that practice, then she also has a state in preserving the Court's holding, and so there is a case for controversy.

But Article III recites, this Court as a matter of practice generally declines to consider cases at the request of a prevailing party.

We have frequently said that we review judgments, not statements and opinions, but important policy considerations support making an exemption here.

Constitutional determinations in qualified immunity cases are special because -- because they are not mere dicta.

They are rulings purposefully designed to have future effect on the conduct of public officials in order to promote compliance with constitutional standards.

We have permitted courts to make these rulings even though they are not necessary to a judgment when an official has qualified immunity.

But when courts availed themselves of disability and make these constitutional rulings, it is also proper that this Court should be able to review them.

Still, there is a different threshold problem with revealing the Ninth Circuit's Fourth Amendment ruling in this case.

This case is moot.

As I said earlier, in a dispute of this kind, both the defendant and the plaintiff usually retained a state in the outcome.

That is true about Camreta.

He remains employed as a caseworker and so, has an interest in challenging the ruling that requires him to get a warrant before interviewing a child at her school.

But SG, the child, does not have any presence state in this -- in this case, because she no longer has need of protection from the challenge practice.

She has moved to Florida and she is in fact not a child anymore.

She is only months away from her 18th birthday and her high school graduation.

So, there is no chance that she'll be subject to an in-school interview in Oregon or anywhere else in the Ninth Circuit again and so, we have no life controversy to review.

When a case like this becomes moot, our usual practice is to vacate the judgment below.

Our reason for doing so is that the petitioner through no fault of its own has been prevented from obtaining the appellant review that he's entitled to.

And so, we want to prevent the lower court's unreviewable decision from having any legal consequence.

Here, as I just explained, the happenstance of SG's moving across country and becoming an adult has deprived Camreta of his appeal rights, because mootness has frustrated his ability to challenge the Court of Appeals, Fourth Amendment ruling, we vacate the part of the Ninth Circuit's opinion that addressed that issue.

Justice Scalia has filed a concurrent opinion.

Justice Sotomayor has filed an opinion concurring in the judgment in which Justice Breyer joins.

Justice Kennedy has filed a dissenting opinion in which Justice Thomas joins.