The two-pronged qualified immunity analysis, which is often the deciding point in any Fourth Amendment use of force case, continues to be a difficult issue dictated by abstract rules. First, courts need to further the law by analyzing the facts to determine whether a constitutional right existed and was violated. Second, in determining whether the right was been clearly established, the courts must find just the right middle ground between too broad an analysis – such as merely citing Graham or its several factors – and an analysis that is too narrow – such as requiring the exact fact pattern in a previous case –something the 10th Circuit has recently battled with in several of its recent cases, including two reversed and remanded by the Supreme Court for further consideration. A middle ground, if adequately defined by the appellate courts to enable its consistent application by the lower courts – can exist. It allows for a pragmatic approach that leads courts to rely on established principles derived in previous cases – e.g., using force against unarmed, unresisting citizens violates their rights – without requiring the claimant to search for and discover prior cases with exact facts on point (such as the difference between using a gun or taser in the aforementioned example). The 10th Circuit’s “sliding scale” approach mirrored the intent of the Graham factors, which appears now to have been rejected, at least in deadly force cases, by the Supreme Court. Putting a premium on furthering the law through judicial determinations of constitutional violations benefit law enforcement and citizens alike – and will serve to guide the lower courts by the continued development of clearly established law in the Fourth Amendment jurisprudence.



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