How do foreigners see the Philippine society in general and the Philippine social justice system in particular?
Filipino political columnist William Esposo has two points to make:
“Foreigners who have lived here are puzzled at how we Filipinos can allow the irregularities and scandals that are happening all over the archipelago to go on with hardly any public outrage expressed. Some of them conclude that Filipinos are gut-less — too yellow to risk life and comfort to straighten out the big mess in their country.”
“Between the conscience-less elite and the clueless poor, there is the largely inutile Filipino middle class, supposedly the initiator of reform and meaningful change in society. Sadly, our middle class is more engrossed in debating the unimportant and is largely oblivious of the truly important.”
May I reproduce his recent column entitled “The Shameless Filipino Elite” (Philippine Star, February 22, 2009). Form your own opinion.
“The Shameless Filipino Elite”
AS I WRECK THIS CHAIR
By William M. Esposo
The Philippine Star 2009-02-22
In 1980, a Swiss girl I met (who was here as an exchange student) made this comment: “How come the Filipinos are not revolting against the injustice here? Most of them have nothing to lose except their lives.”
That comment was surprising considering that the Swiss girl came from an upper class family in a country where it is assumed that everybody has money. After all, someone from that class in society does not usually think of revolting against a government.
But we cannot blame her for saying that. Even during the struggle against the Marcos dictatorship, Filipino parents were the first to discourage their sons and daughters from joining public mass actions for fear of their children getting hurt or arrested.
Foreigners who have lived here are puzzled at how we Filipinos can allow the irregularities and scandals that are happening all over the archipelago to go on with hardly any public outrage expressed. Some of them conclude that Filipinos are gut-less — too yellow to risk life and comfort to straighten out the big mess in their country.
Some foreigners conclude that Filipinos are some of the most un-nationalistic people in the world. We also cannot blame them for concluding that. They even met some Filipinos who would rather be a Yank or a Brit. There are surveys that confirmed that sad reality, especially among young Filipinos.
Some foreigners found it scandalous that Filipinos would proudly wave their ‘bastion of Christianity in Asia’ flag but are so callous to the grinding poverty around them — much of it the result of the elite’s irrational greed. The scandal is heightened by the fact that many of the greediest have graduated from Catholic educational institutions like the Ateneo de Manila University and the De La Salle University.
Indeed, we are more tribal and have really yet to achieve a sense of nation like the Japanese, Thais and Chinese. We’re led by leaders who even have this wrong notion that imposing English as education medium of instruction is the key to Filipino national salvation. They are stupidly oblivious of the fact that no nation ever progressed simply because they imposed a foreign language as their education medium of instruction.
It is also commonplace in our country to see Filipinos espousing things that favor the interests of other countries while condemning the few nationalists who stand up to protect Filipino national interest. The culture here is so badly-damaged that the promoters and protectors of foreign interests strut around as if they are the “true heroes” of the land while many idiotically condemn the nationalists as boils on the heel of progress.
Still, other foreigners have concluded that the Filipino is so selfish and will not bother to think of the community — fatally focused on paddling only his own canoe. Compared to the Japanese who are inclined to think first about their communal interest, many Filipinos are all too consumed with promoting self-interest.
During the days when your Chair Wrecker was an advertising agency CEO, a former Japanese client said something that struck home. This Managing Director of the famous Yakult Lactobacilli Drink wondered how come rich Filipinos do not even bother to help their cash-strapped government by attending to the gutted patch of road fronting their houses. To him, the cost of repair (at the time which is 1984), would have been no more than P4,000.
That observation struck home because to us Filipinos doing so would have been unthinkable. Have you ever heard of a rich Filipino who initiated the paving of the gutted road fronting his house? I haven’t. We would have been quick to rationalize that the government we pay taxes to owes us that service. So why do we pay taxes if we are to repair the road ourselves?
However, to the Japanese who is culturally conditioned to die for his country, it is expected that he should attempt to solve whatever problem of Japan he is capable of solving on his own. Now, that is why the Japanese live in a first world developed country while we Filipinos live in the rut that we are in.
The most stinging criticism Filipinos will hear from foreigners who have lived here and have gained familiarity with how we have ruined the Pearl of the Orient that our country was once touted to be — is how Filipinos are so proud individually but shameless collectively.
Few Filipinos are aware that many foreigners have observed this hypocrisy in our society. Many Filipinos think that the foreigner is impressed with inane braggadocio, unmindful that Filipinos are only managing to look smaller in the eyes of the alien. The big plunderer thinks that foreigners are awed by the immense wealth that he has stolen. He failed to realize that if they see anything big in him — that is his enormous and irrational greed.
It is the elite of this country who ought to hang their heads in shame for promoting and perpetuating the wealth gap that haunts this nation. It is the elite who can understand the national problem and do something about it. But from all indications, our elite have lost their Christian conscience.
We’re supposed to be rich in natural and manpower resources but we suffer from unexplained poverty. The Japanese do not even have the natural resources that we possess and yet look at what their nationalism accomplished.
Systematically benighted, the unkindest cut would be to blame the poor who are the victims and not the cause of the national wealth gap. If ever they are prone to electing false Messiahs, it is because of the Information and Education Gaps that the elite have perpetuated.
Between the conscience-less elite and the clueless poor, there is the largely inutile Filipino middle class, supposedly the initiator of reform and meaningful change in society. Sadly, our middle class is more engrossed in debating the unimportant and is largely oblivious of the truly important.
Just look at all those so-called civil society groups as they rush to grab newspaper headlines and broadcast media sound bytes instead of pursuing real solutions to the core problems of the country.
Tuesday, February 24, 2009
Monday, February 16, 2009
Seniors
I propose that senior citizens, who are constrained to commence legal actions, whether civil, criminal or administrative, before Philippine courts and the local offices of the prosecutor, or who transact official business with government agencies which impose regulatory and administrative fees, be given the usual 20% discount/benefit, or even more, as granted by existing Philippine laws.
I appreciate the fact that Rule 3 and Rule 141 of the !997 Rules of Civil Procedure contain liberal provisions on indigent litigants, who are exempted, upon motion, from court filing and docket fees. I also appreciate the fact that existing circulars of the Department of Justice contain the same provision. However, it must be admitted that, the foregoing provisions notwithstanding, still the filing and docket fees of the Supreme Court and the Department of Justice are too burdensome for middle-class Filipino litigants.
The same is true with the regulatory and administrative fees imposed by government offices with which Filipino senior citizens transact business, e.g., local mayors, local civil registrars, local registers of deeds, et. al.
No wonder, a great majority of Filipinos, seniors or not, would rather do business in the informal economy beyond the reach of the rules of the Establishment or would rather assume de facto status with respect to their personal and family relational problems, because legal costs are way beyond their modest reach.
Some middle-class senior citizens do not qualify as indigent litigants under the rules of the Public Attorneys Office (PAO), in which case they are compelled to hire the costly services of private trial lawyers.
I understand the maximum income of a PAO client must not exceed 15,000 Pesos a month to qualify for free legal aid.
As to the legal aid efforts of the Integrated Bar of the Philippines (IBP), which receives millions of pesos from the Supreme Court annually, perhaps it is time for the Supreme court to cause a comprehensive audit of its free legal aid funds vis-a-vis its accomplishments.
In my 12 years of work as a local IBP chapter official, I was not impressed by the accomplishments of the committee on legal aid of my chapter, not only because of the low quality of the service being rendered by the assigned free legal aid lawyer but also because, and this was common knowledge, the poor clients were sometimes being asked to share some amounts for the court appearances of the so-called free legal aid lawyer.
Free legal aid lawyers of the IBP received a token of 5,000 pesos monthly, but they were allowed to engage in private practice and were, in effect, entitled to free overhead costs because they use, free of charge, the local IBP chapter offices, staff, library, and equipment.
Most lawyers reject such a position. I recall that I had a hard time looking for a young free legal aid lawyer for Las Pinas City when I founded the Las Pinas City Bar Association (LPBA) in 2001, because our funds were not enough to sustain the respectable salaries of good trial lawyers. Up to now, the Association does not have its own local fee legal aid lawyer, for lack of regular funding. Its directors have to share a part of their professional time to assist the urban poor of the city.
I also note that under existing Philippine laws, doctors are mandated to give a 20% discount on their professional fees to Filipino senior citizens. However, there are no similar provisions with respect to other professionals, who fees are likewise costly, e.g., lawyers, engineers, architects, et. al.
Lat year, Congress passed a law giving a tax deduction to lawyers who render pro bono services. Up to now, the Bureau of Internal Revenue (BIR) has not issued its implementing rules and regulations on the matter. The Supreme Court has likewise not yet issued a circular thereon. The same is true with the IBP.
The Supreme Court and the IBP must take the initiative to prod the BIR to move faster on the matter. The local voluntary bar associations like the LPBA, must be democratically consulted thereon.
Guess who sponsored that law. It was a non-lawyer, Sen. Lito Lapid, a former actor without a college degree who was the usual target of the derisive jokes of the intelligentsia and the media. I credit him for his unexpected feat.
I understand there are moves at present in the Supreme Court to adopt a rule requiring all lawyers to render a certain number of pro bono hours for the benefit of the rural and urban poor and the local communities and basic sectors as a prerequisite for the continuing active status of their licenses. I welcome such a move.
At present, Filipino senior citizens are entitled to the following benefits, pursuant to Republic Act No. 9257 (the Expanded Senior Citizens Act of 2003):
(1) Free medical and dental service, diagnostic and laboratory fee (such as, but not limited, to x-rays, computerized tomography scans and blood tests) in all government facilities.
(2) Exemption from income taxes provided their income does not exceed the poverty level; and exemption from training fees for socio-economic programs.
(3) A 20-percent discount from hotels and similar lodging establishments; restaurants and recreation centers; drugstores; funeral parlors; theaters, cinemas, concert halls, circuses, carnivals and similar places of culture, leisure and amusements; medical and dental services, and diagnostic and laboratory fees (such as, but not limited to, x-rays, computerized tomography scans and blood tests), including the professional fees of attending doctors in all private hospitals and medical facilities; domestic air and sea travel; and public railways, skyways and bus fares.
(4) There are other benefits that have no specific amounts, like “educational assistance… to the extent practicable and feasible, the continuance of the same benefits given by the GSIS, SSS and Pag-ibig… to the extent possible, special discounts… on purchase of basic commodities.”
(5) “Provision of express lanes… in all commercial and business establishments; in the absence thereof, priority shall be given to them.”
Maybe it is time to start a public debate on the above issues.
May I reproduce below an article of former Chief Justice Art Panganiban.
With Due Respect
Seniors’ privileges
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 01:35:00 02/15/2009
LAST Sunday, I commended—among others—retiring Justice Adolfo S. Azcuna’s ponencia upholding the constitutionality of the 20-percent senior citizens’ discount. In reaction, readers asked me to explain the extent and coverage of the seniors’ privileges. Ambassador Ramon J. Farolan, in tandem with Vice President Noli L. de Castro, has long been championing the senior citizens’ cause. In support of their advocacy, I am answering the questions.
Benefits for seniors. Republic Act 9257 (the Expanded Senior Citizens Act of 2003), which became effective on March 21, 2004, granted senior citizens (those who are at least 60 years old) several benefits, mainly the following:
(1) Free medical and dental service, diagnostic and laboratory fee (such as, but not limited, to x-rays, computerized tomography scans and blood tests) in all government facilities.
(2) Exemption from income taxes provided their income does not exceed the poverty level; and exemption from training fees for socio-economic programs.
(3) A 20-percent discount from hotels and similar lodging establishments; restaurants and recreation centers; drugstores; funeral parlors; theaters, cinemas, concert halls, circuses, carnivals and similar places of culture, leisure and amusements; medical and dental services, and diagnostic and laboratory fees (such as, but not limited to, x-rays, computerized tomography scans and blood tests), including the professional fees of attending doctors in all private hospitals and medical facilities; domestic air and sea travel; and public railways, skyways and bus fares.
(4) There are other benefits that have no specific amounts, like “educational assistance… to the extent practicable and feasible, the continuance of the same benefits given by the GSIS, SSS and Pag-ibig… to the extent possible, special discounts… on purchase of basic commodities.”
(5) “Provision of express lanes… in all commercial and business establishments; in the absence thereof, priority shall be given to them.”
In general, the 20-percent discount “shall be allowed as deduction from the gross income” of the establishments that granted it. In this sense, the privilege is not really a “sales discount” from the selling price but—in the words of the Supreme Court in Carlos Super Drug vs Dept. of Social Welfare (June 29, 2007)—“a tax deduction scheme” that reduces the gross taxable income, and ultimately, the income tax to be paid by the establishment. Viewed in another way, the 20-percent seniors’ discount is partially absorbed by the State via a tax reduction granted to the seller.
Promos do not nullify law. Comes now a common question posed by readers, “Some hotels like the Shangri-la and the Peninsula sell discount or promo cards that entitle the buyers to a 20-percent reduction on the entire purchase made by the cardholder. However, their restaurant outlets refuse to honor a further 20-percent discount for consumptions of senior citizens only. Are they correct?”
I do not think so. The initial 20-percent reduction is a voluntary sales discount or promo given by the hotel to all cardholders regardless of age. This discount is deducted from the regular selling price. On the other hand, the seniors’ discount is computed only on the consumptions or purchases made by the elderly, and is deducted from the seller’s gross income that, as earlier explained, results in lower income taxes for the seller. It is a reduction imposed by the law, not by the seller.
The hotel promo is given to all customers regardless of age. Hence, the resulting price is really the selling price from which the elderly should get their legally mandated discount. Promos and discounts given to all customers cannot nullify, modify or circumvent the senior citizens law.
To avoid any confusion and to give our elderly what is legally due them, I think the mayors and the Office of the Senior Citizens Affairs in the cities concerned, with the help of Vice President De Castro, should clarify this matter soonest.
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20090215-189367/Seniors-privileges
I appreciate the fact that Rule 3 and Rule 141 of the !997 Rules of Civil Procedure contain liberal provisions on indigent litigants, who are exempted, upon motion, from court filing and docket fees. I also appreciate the fact that existing circulars of the Department of Justice contain the same provision. However, it must be admitted that, the foregoing provisions notwithstanding, still the filing and docket fees of the Supreme Court and the Department of Justice are too burdensome for middle-class Filipino litigants.
The same is true with the regulatory and administrative fees imposed by government offices with which Filipino senior citizens transact business, e.g., local mayors, local civil registrars, local registers of deeds, et. al.
No wonder, a great majority of Filipinos, seniors or not, would rather do business in the informal economy beyond the reach of the rules of the Establishment or would rather assume de facto status with respect to their personal and family relational problems, because legal costs are way beyond their modest reach.
Some middle-class senior citizens do not qualify as indigent litigants under the rules of the Public Attorneys Office (PAO), in which case they are compelled to hire the costly services of private trial lawyers.
I understand the maximum income of a PAO client must not exceed 15,000 Pesos a month to qualify for free legal aid.
As to the legal aid efforts of the Integrated Bar of the Philippines (IBP), which receives millions of pesos from the Supreme Court annually, perhaps it is time for the Supreme court to cause a comprehensive audit of its free legal aid funds vis-a-vis its accomplishments.
In my 12 years of work as a local IBP chapter official, I was not impressed by the accomplishments of the committee on legal aid of my chapter, not only because of the low quality of the service being rendered by the assigned free legal aid lawyer but also because, and this was common knowledge, the poor clients were sometimes being asked to share some amounts for the court appearances of the so-called free legal aid lawyer.
Free legal aid lawyers of the IBP received a token of 5,000 pesos monthly, but they were allowed to engage in private practice and were, in effect, entitled to free overhead costs because they use, free of charge, the local IBP chapter offices, staff, library, and equipment.
Most lawyers reject such a position. I recall that I had a hard time looking for a young free legal aid lawyer for Las Pinas City when I founded the Las Pinas City Bar Association (LPBA) in 2001, because our funds were not enough to sustain the respectable salaries of good trial lawyers. Up to now, the Association does not have its own local fee legal aid lawyer, for lack of regular funding. Its directors have to share a part of their professional time to assist the urban poor of the city.
I also note that under existing Philippine laws, doctors are mandated to give a 20% discount on their professional fees to Filipino senior citizens. However, there are no similar provisions with respect to other professionals, who fees are likewise costly, e.g., lawyers, engineers, architects, et. al.
Lat year, Congress passed a law giving a tax deduction to lawyers who render pro bono services. Up to now, the Bureau of Internal Revenue (BIR) has not issued its implementing rules and regulations on the matter. The Supreme Court has likewise not yet issued a circular thereon. The same is true with the IBP.
The Supreme Court and the IBP must take the initiative to prod the BIR to move faster on the matter. The local voluntary bar associations like the LPBA, must be democratically consulted thereon.
Guess who sponsored that law. It was a non-lawyer, Sen. Lito Lapid, a former actor without a college degree who was the usual target of the derisive jokes of the intelligentsia and the media. I credit him for his unexpected feat.
I understand there are moves at present in the Supreme Court to adopt a rule requiring all lawyers to render a certain number of pro bono hours for the benefit of the rural and urban poor and the local communities and basic sectors as a prerequisite for the continuing active status of their licenses. I welcome such a move.
At present, Filipino senior citizens are entitled to the following benefits, pursuant to Republic Act No. 9257 (the Expanded Senior Citizens Act of 2003):
(1) Free medical and dental service, diagnostic and laboratory fee (such as, but not limited, to x-rays, computerized tomography scans and blood tests) in all government facilities.
(2) Exemption from income taxes provided their income does not exceed the poverty level; and exemption from training fees for socio-economic programs.
(3) A 20-percent discount from hotels and similar lodging establishments; restaurants and recreation centers; drugstores; funeral parlors; theaters, cinemas, concert halls, circuses, carnivals and similar places of culture, leisure and amusements; medical and dental services, and diagnostic and laboratory fees (such as, but not limited to, x-rays, computerized tomography scans and blood tests), including the professional fees of attending doctors in all private hospitals and medical facilities; domestic air and sea travel; and public railways, skyways and bus fares.
(4) There are other benefits that have no specific amounts, like “educational assistance… to the extent practicable and feasible, the continuance of the same benefits given by the GSIS, SSS and Pag-ibig… to the extent possible, special discounts… on purchase of basic commodities.”
(5) “Provision of express lanes… in all commercial and business establishments; in the absence thereof, priority shall be given to them.”
Maybe it is time to start a public debate on the above issues.
May I reproduce below an article of former Chief Justice Art Panganiban.
With Due Respect
Seniors’ privileges
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 01:35:00 02/15/2009
LAST Sunday, I commended—among others—retiring Justice Adolfo S. Azcuna’s ponencia upholding the constitutionality of the 20-percent senior citizens’ discount. In reaction, readers asked me to explain the extent and coverage of the seniors’ privileges. Ambassador Ramon J. Farolan, in tandem with Vice President Noli L. de Castro, has long been championing the senior citizens’ cause. In support of their advocacy, I am answering the questions.
Benefits for seniors. Republic Act 9257 (the Expanded Senior Citizens Act of 2003), which became effective on March 21, 2004, granted senior citizens (those who are at least 60 years old) several benefits, mainly the following:
(1) Free medical and dental service, diagnostic and laboratory fee (such as, but not limited, to x-rays, computerized tomography scans and blood tests) in all government facilities.
(2) Exemption from income taxes provided their income does not exceed the poverty level; and exemption from training fees for socio-economic programs.
(3) A 20-percent discount from hotels and similar lodging establishments; restaurants and recreation centers; drugstores; funeral parlors; theaters, cinemas, concert halls, circuses, carnivals and similar places of culture, leisure and amusements; medical and dental services, and diagnostic and laboratory fees (such as, but not limited to, x-rays, computerized tomography scans and blood tests), including the professional fees of attending doctors in all private hospitals and medical facilities; domestic air and sea travel; and public railways, skyways and bus fares.
(4) There are other benefits that have no specific amounts, like “educational assistance… to the extent practicable and feasible, the continuance of the same benefits given by the GSIS, SSS and Pag-ibig… to the extent possible, special discounts… on purchase of basic commodities.”
(5) “Provision of express lanes… in all commercial and business establishments; in the absence thereof, priority shall be given to them.”
In general, the 20-percent discount “shall be allowed as deduction from the gross income” of the establishments that granted it. In this sense, the privilege is not really a “sales discount” from the selling price but—in the words of the Supreme Court in Carlos Super Drug vs Dept. of Social Welfare (June 29, 2007)—“a tax deduction scheme” that reduces the gross taxable income, and ultimately, the income tax to be paid by the establishment. Viewed in another way, the 20-percent seniors’ discount is partially absorbed by the State via a tax reduction granted to the seller.
Promos do not nullify law. Comes now a common question posed by readers, “Some hotels like the Shangri-la and the Peninsula sell discount or promo cards that entitle the buyers to a 20-percent reduction on the entire purchase made by the cardholder. However, their restaurant outlets refuse to honor a further 20-percent discount for consumptions of senior citizens only. Are they correct?”
I do not think so. The initial 20-percent reduction is a voluntary sales discount or promo given by the hotel to all cardholders regardless of age. This discount is deducted from the regular selling price. On the other hand, the seniors’ discount is computed only on the consumptions or purchases made by the elderly, and is deducted from the seller’s gross income that, as earlier explained, results in lower income taxes for the seller. It is a reduction imposed by the law, not by the seller.
The hotel promo is given to all customers regardless of age. Hence, the resulting price is really the selling price from which the elderly should get their legally mandated discount. Promos and discounts given to all customers cannot nullify, modify or circumvent the senior citizens law.
To avoid any confusion and to give our elderly what is legally due them, I think the mayors and the Office of the Senior Citizens Affairs in the cities concerned, with the help of Vice President De Castro, should clarify this matter soonest.
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20090215-189367/Seniors-privileges
Mendicant
It is an issue that has been silently bothering the Bar for decades. But nobody wanted to talk about it, either out of fear or ignorance. It refers to the allowances and honoraria being received by local trial judges and public prosecutors from their respective local government units and local executives. To suspect that such an arrangement would weaken the independence of the Bench and the National Prosecution Service is a valid feeling. My UP fraternity brother Atty. Sonny Pulgar, who is based in Quezon Province, has written a brief but hard-hitting opinion on the matter, which I wish to reproduce below.
From: Atty. Sonny Pulgar
Subject: MENDICANT COURTS
Date: Saturday, February 14, 2009
MENDICANT COURTS
One Cebuano judge made himself too clear cut above the rest, yet the media failed to make out on what he just did.
When Judge Gabriel Ingles declined his P18, 000.00 yearly honorarium from the town of Pinamungahan , Cebu , not a squeak was heard from the Philippine Judges Association.
Judges from the National Capital Region were even praying that this simple gesture of Judge Ingles would just go on unnoticed lest any scrutiny on his demurrer might jeopardize their monthly take from the generous LGU benefactors. But does this generosity seep at the fundamentals of judicial independence? It seems the answer is in the affirmative.
One recent case was QUISUMBING v. HON. GWENDOLYN F. GARCIA, G.R. No. 175527, December 8, 2008, where the trial court in Cebu City showed its partiality towards its provincial officials. The issue posed before the trial court was whether a contract arising from a supplemental budget based on a re-enacted annual budget requires another imprimatur of the local council. The High Court agreed with the petitioners when it said, “The requirement was deliberately added as a measure of check and balance, to temper the authority of the local chief executive, and in recognition of the fact that the corporate powers of the local government unit are wielded as much by its chief executive as by its council.” Instead of ascertaining the facts to warrant declaratory relief, and of course justify the trial court’s bias, it relied on the conflicting position papers of the parties and went on to rule in favor of the governor. The favorable ruling enabled the governor to deflect an ominous Ombudsman criminal inquiry on the railroaded contract. By remanding the case again to the trial court, the institution of dribbling the case is put in place once again well into the third and last term of the sitting governor. Cebu judges enjoy LGU stipends.
Knowing the gauntlet one applicant has to pass thru to get a JBC shortlist and finally a Malacanang appointment, the position is equivalent to a lotto jackpot.
Judges know their clout in their jurisdiction and it comes with a price. Local political kingpins count on judges’ support. Having judicial sympathy, a mayor or a governor can tilt the judicial scale in favor of a follower. “Pagbibigyan kita, boss, hindi naman langit at lupa ang pagitan.” Or frustrate a criminal prosecution by logging in a prejudicial question. One thing further escapes notice, allowances from the Small Town Lottery and jueteng operators (or from the likes of Amin Imam Boratong).
In the City of Makati , the local Hizzoner boasts that as a lawyer he knows the economic travails of the trial judges. Thus he generously provides them with monthly honorarium true to his form of running his welfare city. A judge in his city should look like it: venerable, honorable, strikes terror. The diminutive Mayor has never lost a case in his territory. He attributes that to his being a grizzled legal tactician. Judge Ingles’ disclaimer however spoiled their sumptuous dinners in Glorietta and Greenbelt . They are now brushing up on latest rulings on infidelity of public funds and technical malversation. “Pasikat,” ika, one waiter heard one of the judges complained.
Under the unprecedented privatization of court proceedings, when a clueless senator sponsored REPUBLIC ACT NO. 9227, or AN ACT GRANTING ADDITIONAL COMPENSATION IN THE FORM OF SPECIAL ALLOWANCES FOR JUSTICES, JUDGES AND ALL OTHER POSITIONS IN THE JUDICIARY, etc., despite the salary and allowance adjustment of members of the judiciary, they still pine, and expect generous assistance from other sources. After the passage of this mindless law, court cases were never the same again. One lawyer was heard saying that “with the rate of inflation, sooner or later, we’ll find us congratulating ourselves for paying P1M in docket fees as “chicken feed”. Atty. Danny Concepcion of Usapang de Campanilla is besieged daily with problems about screwed birth certificates of prospective OCWs who no longer find salvation in these days of constant economic meltdown. The counselor can only heave a sigh of disappointment when the caller says that a court petition for correction of name, age or gender, after all, costs a leg and a limb.
Anyway, if we have exceptional politicians like Governors Among Ed, Grace Padaca and City Mayor Jesse Robredo, at least with the emergence of the likes of Judge Ingles makes one still believes that all’s well in this godforsaken landscape.
________________________________________________________
Atty. Sonny Pulgar
From: Atty. Sonny Pulgar
Subject: MENDICANT COURTS
Date: Saturday, February 14, 2009
MENDICANT COURTS
One Cebuano judge made himself too clear cut above the rest, yet the media failed to make out on what he just did.
When Judge Gabriel Ingles declined his P18, 000.00 yearly honorarium from the town of Pinamungahan , Cebu , not a squeak was heard from the Philippine Judges Association.
Judges from the National Capital Region were even praying that this simple gesture of Judge Ingles would just go on unnoticed lest any scrutiny on his demurrer might jeopardize their monthly take from the generous LGU benefactors. But does this generosity seep at the fundamentals of judicial independence? It seems the answer is in the affirmative.
One recent case was QUISUMBING v. HON. GWENDOLYN F. GARCIA, G.R. No. 175527, December 8, 2008, where the trial court in Cebu City showed its partiality towards its provincial officials. The issue posed before the trial court was whether a contract arising from a supplemental budget based on a re-enacted annual budget requires another imprimatur of the local council. The High Court agreed with the petitioners when it said, “The requirement was deliberately added as a measure of check and balance, to temper the authority of the local chief executive, and in recognition of the fact that the corporate powers of the local government unit are wielded as much by its chief executive as by its council.” Instead of ascertaining the facts to warrant declaratory relief, and of course justify the trial court’s bias, it relied on the conflicting position papers of the parties and went on to rule in favor of the governor. The favorable ruling enabled the governor to deflect an ominous Ombudsman criminal inquiry on the railroaded contract. By remanding the case again to the trial court, the institution of dribbling the case is put in place once again well into the third and last term of the sitting governor. Cebu judges enjoy LGU stipends.
Knowing the gauntlet one applicant has to pass thru to get a JBC shortlist and finally a Malacanang appointment, the position is equivalent to a lotto jackpot.
Judges know their clout in their jurisdiction and it comes with a price. Local political kingpins count on judges’ support. Having judicial sympathy, a mayor or a governor can tilt the judicial scale in favor of a follower. “Pagbibigyan kita, boss, hindi naman langit at lupa ang pagitan.” Or frustrate a criminal prosecution by logging in a prejudicial question. One thing further escapes notice, allowances from the Small Town Lottery and jueteng operators (or from the likes of Amin Imam Boratong).
In the City of Makati , the local Hizzoner boasts that as a lawyer he knows the economic travails of the trial judges. Thus he generously provides them with monthly honorarium true to his form of running his welfare city. A judge in his city should look like it: venerable, honorable, strikes terror. The diminutive Mayor has never lost a case in his territory. He attributes that to his being a grizzled legal tactician. Judge Ingles’ disclaimer however spoiled their sumptuous dinners in Glorietta and Greenbelt . They are now brushing up on latest rulings on infidelity of public funds and technical malversation. “Pasikat,” ika, one waiter heard one of the judges complained.
Under the unprecedented privatization of court proceedings, when a clueless senator sponsored REPUBLIC ACT NO. 9227, or AN ACT GRANTING ADDITIONAL COMPENSATION IN THE FORM OF SPECIAL ALLOWANCES FOR JUSTICES, JUDGES AND ALL OTHER POSITIONS IN THE JUDICIARY, etc., despite the salary and allowance adjustment of members of the judiciary, they still pine, and expect generous assistance from other sources. After the passage of this mindless law, court cases were never the same again. One lawyer was heard saying that “with the rate of inflation, sooner or later, we’ll find us congratulating ourselves for paying P1M in docket fees as “chicken feed”. Atty. Danny Concepcion of Usapang de Campanilla is besieged daily with problems about screwed birth certificates of prospective OCWs who no longer find salvation in these days of constant economic meltdown. The counselor can only heave a sigh of disappointment when the caller says that a court petition for correction of name, age or gender, after all, costs a leg and a limb.
Anyway, if we have exceptional politicians like Governors Among Ed, Grace Padaca and City Mayor Jesse Robredo, at least with the emergence of the likes of Judge Ingles makes one still believes that all’s well in this godforsaken landscape.
________________________________________________________
Atty. Sonny Pulgar
Friday, February 13, 2009
Cheap life
What is the value of human life in the Philippines? It is very cheap. The recent case of PEOPLE OF THE PHILIPPINES vs. EVELYN BOHOL , G.R. No. 178198, December 10, 2008 gives us an insulting computation (125,000 Pesos), as contained in current Philippine jurisprudence:
“X x x.
Lastly, whether the damages awarded to the heirs of Steven are proper. We affirm the award of civil indemnity and moral damages but we deem it proper to order the payment of an additional amount of P25,000.00 as exemplary damages.
Civil indemnity is mandatory and granted to the heirs of the victim even without need of proof other than the commission of the crime. The amount of P50,000.00 awarded by the trial and appellate courts is in line with prevailing jurisprudence.
As to moral damages, the same is mandatory in cases of murder and homicide, without need of allegation and proof other than the death of the victim. The amount of P50,000.00 was, therefore, correctly awarded.
In addition, exemplary damages should be awarded to the heirs of the victim, since the qualifying circumstance of treachery was proven by the prosecution. When a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P25,000.00 as exemplary damages is justified under Article 2230 of the New Civil Code. This kind of damage is intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct.
X x x.”
“X x x.
Lastly, whether the damages awarded to the heirs of Steven are proper. We affirm the award of civil indemnity and moral damages but we deem it proper to order the payment of an additional amount of P25,000.00 as exemplary damages.
Civil indemnity is mandatory and granted to the heirs of the victim even without need of proof other than the commission of the crime. The amount of P50,000.00 awarded by the trial and appellate courts is in line with prevailing jurisprudence.
As to moral damages, the same is mandatory in cases of murder and homicide, without need of allegation and proof other than the death of the victim. The amount of P50,000.00 was, therefore, correctly awarded.
In addition, exemplary damages should be awarded to the heirs of the victim, since the qualifying circumstance of treachery was proven by the prosecution. When a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P25,000.00 as exemplary damages is justified under Article 2230 of the New Civil Code. This kind of damage is intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct.
X x x.”
Drug lords
For failure of Philippine policemen to make an inventory and to photograph the illegal drugs they had seized in a raid and buy-bust operation, the Philippine Supreme Court acquitted the notorious big-time drug lords involved in the recent case of ELPIDIO BONDAD, JR. vs. PEOPLE OF THE PHILIPPINES, GR No. 173804, December 10, 2008. No wonder, policemen lack the zeal and motivation to run after powerful and wealthy drug syndicates. They would rather make business out of the illegal drug industry, following the culture of corruption among Philippine politicians and military and police generals. If you cannot lick them, join them, so to speak. Meanwhile, idealistic Filipinos stand by the sideline, quietly watching the hopeless and sickening deterioration of the Philippine society. Excerpts from the said Supreme Court decision are quoted below:
“X x x.
Appellant claims that there was failure to follow the requirements of Sec. 21 of R.A. No. 9165, hence, it compromised the integrity and evidentiary value of the allegedly seized items.
Sec. 21 of R.A. No 9165 provides:
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources or dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the persons/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; x x x (Emphasis and underscoring supplied)
Appellant claims that no physical inventory and photographing of the drugs took place. A reading of the testimony of the poseur-buyer, PO2 Dano indeed confirms appellant’s claim x x x.
People v. Pringas holds, however:
Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. (Citation omitted, emphasis, italics and underscoring supplied)
The Court’s pronouncement in Pringas is based on the provision of Section 21(a) of the Implementing Rules and Regulations of R.A. No. 9165, viz:
x x x Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items; (Emphasis and underscoring supplied)
In the present case, by PO2 Dano’s claim, he immediately marked the seized items which were brought to the Crime Laboratory for examination. By his admission, however, he did not conduct an inventory of the items seized. Worse, no photograph of the items was taken. There was thus failure to faithfully follow the requirements of the law.
Parenthetically, unlike in Pringas, the defense in the present case questioned early on, during the cross examination of PO2 Dano, the failure of the apprehending officers to comply with the inventory and photographing requirements of Section 21 of R.A. No. 9165 , despite PO2 Dano’s awareness of such requirements. And the defense raised it again during the offer of evidence by the prosecution x x x.
IN FINE, as the failure to comply with the aforesaid requirements of the law compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against appellant, his acquittal is in order.
X x x.
WHEREFORE, the Petition is GRANTED. The assailed decision is REVERSED and SET ASIDE and appellant, Elpidio Bondad Jr., y Burac, is ACQUITED of the crimes charged.
Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who is directed to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of action taken within ten (10) days from notice hereof.
SO ORDERED.”
“X x x.
Appellant claims that there was failure to follow the requirements of Sec. 21 of R.A. No. 9165, hence, it compromised the integrity and evidentiary value of the allegedly seized items.
Sec. 21 of R.A. No 9165 provides:
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources or dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the persons/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; x x x (Emphasis and underscoring supplied)
Appellant claims that no physical inventory and photographing of the drugs took place. A reading of the testimony of the poseur-buyer, PO2 Dano indeed confirms appellant’s claim x x x.
People v. Pringas holds, however:
Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. (Citation omitted, emphasis, italics and underscoring supplied)
The Court’s pronouncement in Pringas is based on the provision of Section 21(a) of the Implementing Rules and Regulations of R.A. No. 9165, viz:
x x x Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items; (Emphasis and underscoring supplied)
In the present case, by PO2 Dano’s claim, he immediately marked the seized items which were brought to the Crime Laboratory for examination. By his admission, however, he did not conduct an inventory of the items seized. Worse, no photograph of the items was taken. There was thus failure to faithfully follow the requirements of the law.
Parenthetically, unlike in Pringas, the defense in the present case questioned early on, during the cross examination of PO2 Dano, the failure of the apprehending officers to comply with the inventory and photographing requirements of Section 21 of R.A. No. 9165 , despite PO2 Dano’s awareness of such requirements. And the defense raised it again during the offer of evidence by the prosecution x x x.
IN FINE, as the failure to comply with the aforesaid requirements of the law compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against appellant, his acquittal is in order.
X x x.
WHEREFORE, the Petition is GRANTED. The assailed decision is REVERSED and SET ASIDE and appellant, Elpidio Bondad Jr., y Burac, is ACQUITED of the crimes charged.
Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who is directed to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of action taken within ten (10) days from notice hereof.
SO ORDERED.”
Wednesday, February 4, 2009
Butcher
The dismal, if not hopeless, state of human rights and the rule of law in the Philippines is shown by the horrific and blood-stained track record and the fearsome mind-set of Pres. Gloria Arroyo’s favorite anti-communist soldier, Maj. Gen. Jovito Palparan, who is described in the Philippine mass media as “The Butcher” and about whom the youthful but incisive Philippine Daily Inquirer columnist Patricia Evangelista has written, thus:
“Yet even with Supreme Court decisions, even with international indignation, even with his own testimonies, the government has chosen to give Palparan and his crimes a wide berth. Denial and silence have been the usual defense, behavior that was ominous enough even without the Manalo decision. Today, this government does not stop at a shameful silence—today it celebrates Palparan’s “expertise,” submits his “methods” as effective, and calls his long crusade of blood proof that “he can deliver.”
“The killings are being attributed to me,” he says, “but I did not kill them. I just inspire the triggermen.” He was delighted at the disappearance of the students who were volunteering outside of Manila—“Their disappearance is good for us but as to who abducted them, we don’t know.”
“It does not matter whether they pit Palparan against drugs, or prostitution, or corruption, or smuggling, or whatever new cause the President decides to crusade against. Wherever he is, he will strike fear, here comes Lord Death, here comes the law of the barrel of the gun. He will be effective, because people will die, whether or not they are guilty, for as long as Palparan believes they are. Whatever the government owes Palparan, it is not worth making this man a god.”
Below is the full text of Evangelista’s column.
Method To Madness
The knighting of Jovito Palparan
By Patricia Evangelista
Philippine Daily Inquirer
First Posted 01:04:00 02/01/2009
RETIRED Maj. Gen. Jovito Palparan, former commanding general of the Philippine Army’s 7th and 8th Infantry Divisions, erstwhile army chief of staff, holder of Distinguished Service Stars and a Gold Cross Medal, known in various circles as alternately “The Butcher” and “Berdugo,” is a great believer of civilian involvement in executive issues. “I encourage people victimized by communist rebels to get even.”
The one-time party-list candidate of the True Marcos Loyalists—a “minority group” that promises “to implement the government’s national security program”—is not a particularly remarkable looking man, unless you count the eyebrows flaring into points over the sunken eyes, and the near-cadaverous hollows of his face. He was born in Cagayan de Oro on Sept. 11, 59 years ago, has five children—including a son named Bullet—and counts as an achievement “clearing eight provinces in Central Luzon and Cordillera of insurgents.” Within the term of President Macapagal-Arroyo, Palparan was promoted twice; in 2003 he made the step from colonel to brigadier general. In 2004, the President named him major general, just months after his previous promotion. In her 2006 State of the Nation Address, President Arroyo acknowledged Palparan for his offensives against “rebel terrorists.”
The President, self-proclaimed anti-drug czar, wants the streets clean of drug pushers. Last week, Executive Secretary Eduardo Ermita said a search committee was considering Palparan’s appointment as a member of the Dangerous Drugs Board.
Ermita says that the government was “studying what would be the immediate utilization for him.” It may seem odd that the government finds itself responsible for the placement of former army officers in civilian positions, but with 25 other police and military officials sitting in plum government positions, including ambassadorships to Australia and the leadership of the Manila Economic and Cultural Office, this isn’t a strange phenomenon. What is strange is that this man, this particular man whose very name inspires images of blood and violence, who has been named, repeatedly, in acts of brutality that have caused grown men to soil themselves, and women to bleed chunks of blood into buckets of piss, is being rewarded for “his expertise.”
A Manila Times editorial says that the appointment of Palparan constitutes “good news, …precisely from the fact he is experienced in counter-insurgency.” Palparan’s reputation precedes him, says Justice Secretary Raul Gonzalez. He is “painted as a devil,” and “that kind of reputation may be good for this campaign against drugs.” It is “unfortunate,” says incoming Press Secretary Cerge Remonde, that Palparan would come under fire for being “effective” against “communist terrorists.”
His name is Jovito Palparan, and there is a reason they call him the Butcher—although he was known as the torturer as early as 1981. Before his retirement in 2006, Palparan was linked to more than 500 cases of human rights abuse, mainly summary executions and disappearances, during his stints as commander of the 24th Infantry Battalion in Central Luzon, 204th Infantry Battalion in Mindoro and Romblon, and 8th Infantry Division in Samar and Leyte.
In 2007, a government-initiated commission headed by retired Supreme Court Justice Jose Melo recommended in its final report the investigation of retired Army Maj. Gen. Jovito Palparan for his alleged involvement in the killing of a human rights activist. “General Palparan and perhaps some of his superior officers may be held responsible for failing to prevent, punish or condemn the killings under the principle of command responsibility.”
Last October, a Supreme Court decision upheld the findings of the Court of Appeals linking Palparan to the abduction of brothers Raymond and Reynaldo Manalo, both farmers in Bulacan who were taken under military custody for 18 months on suspicion of being NPA rebels. Manalo’s testimony detailed torture, multiple rapes, murder, and a variety of other crimes, and included a narration of a meeting with Palparan, dressed in shorts, who told a limping Manalo that his life depended on whether Manalo proves “you are now on our side.”
The Supreme Court upheld the appellate court’s findings in 2007 that “Palparan’s participation in the abduction [of the brothers] was established.”
Palparan denies all of these, and adds that Raymond Manalo is a proven member of the New People’s Army. “We have records of that. He’s an enemy of the Cafgu (Citizens Armed Forces Geographical Unit),” he said.
It is surprising why these records never made their way to the court. After all, if Manalo were a member of the NPA, guilty of murder and extortion, Palparan seems to have neglected his duties by failing to bring Manalo to court.
Yet even with Supreme Court decisions, even with international indignation, even with his own testimonies, the government has chosen to give Palparan and his crimes a wide berth. Denial and silence have been the usual defense, behavior that was ominous enough even without the Manalo decision. Today, this government does not stop at a shameful silence—today it celebrates Palparan’s “expertise,” submits his “methods” as effective, and calls his long crusade of blood proof that “he can deliver.”
“The killings are being attributed to me,” he says, “but I did not kill them. I just inspire the triggermen.” He was delighted at the disappearance of the students who were volunteering outside of Manila—“Their disappearance is good for us but as to who abducted them, we don’t know.”
It does not matter whether they pit Palparan against drugs, or prostitution, or corruption, or smuggling, or whatever new cause the President decides to crusade against. Wherever he is, he will strike fear, here comes Lord Death, here comes the law of the barrel of the gun. He will be effective, because people will die, whether or not they are guilty, for as long as Palparan believes they are. Whatever the government owes Palparan, it is not worth making this man a god.
See: http://opinion.inquirer.net/inquireropinion/columns/view/20090201-186731/The-knighting-of-Jovito-Palparan
“Yet even with Supreme Court decisions, even with international indignation, even with his own testimonies, the government has chosen to give Palparan and his crimes a wide berth. Denial and silence have been the usual defense, behavior that was ominous enough even without the Manalo decision. Today, this government does not stop at a shameful silence—today it celebrates Palparan’s “expertise,” submits his “methods” as effective, and calls his long crusade of blood proof that “he can deliver.”
“The killings are being attributed to me,” he says, “but I did not kill them. I just inspire the triggermen.” He was delighted at the disappearance of the students who were volunteering outside of Manila—“Their disappearance is good for us but as to who abducted them, we don’t know.”
“It does not matter whether they pit Palparan against drugs, or prostitution, or corruption, or smuggling, or whatever new cause the President decides to crusade against. Wherever he is, he will strike fear, here comes Lord Death, here comes the law of the barrel of the gun. He will be effective, because people will die, whether or not they are guilty, for as long as Palparan believes they are. Whatever the government owes Palparan, it is not worth making this man a god.”
Below is the full text of Evangelista’s column.
Method To Madness
The knighting of Jovito Palparan
By Patricia Evangelista
Philippine Daily Inquirer
First Posted 01:04:00 02/01/2009
RETIRED Maj. Gen. Jovito Palparan, former commanding general of the Philippine Army’s 7th and 8th Infantry Divisions, erstwhile army chief of staff, holder of Distinguished Service Stars and a Gold Cross Medal, known in various circles as alternately “The Butcher” and “Berdugo,” is a great believer of civilian involvement in executive issues. “I encourage people victimized by communist rebels to get even.”
The one-time party-list candidate of the True Marcos Loyalists—a “minority group” that promises “to implement the government’s national security program”—is not a particularly remarkable looking man, unless you count the eyebrows flaring into points over the sunken eyes, and the near-cadaverous hollows of his face. He was born in Cagayan de Oro on Sept. 11, 59 years ago, has five children—including a son named Bullet—and counts as an achievement “clearing eight provinces in Central Luzon and Cordillera of insurgents.” Within the term of President Macapagal-Arroyo, Palparan was promoted twice; in 2003 he made the step from colonel to brigadier general. In 2004, the President named him major general, just months after his previous promotion. In her 2006 State of the Nation Address, President Arroyo acknowledged Palparan for his offensives against “rebel terrorists.”
The President, self-proclaimed anti-drug czar, wants the streets clean of drug pushers. Last week, Executive Secretary Eduardo Ermita said a search committee was considering Palparan’s appointment as a member of the Dangerous Drugs Board.
Ermita says that the government was “studying what would be the immediate utilization for him.” It may seem odd that the government finds itself responsible for the placement of former army officers in civilian positions, but with 25 other police and military officials sitting in plum government positions, including ambassadorships to Australia and the leadership of the Manila Economic and Cultural Office, this isn’t a strange phenomenon. What is strange is that this man, this particular man whose very name inspires images of blood and violence, who has been named, repeatedly, in acts of brutality that have caused grown men to soil themselves, and women to bleed chunks of blood into buckets of piss, is being rewarded for “his expertise.”
A Manila Times editorial says that the appointment of Palparan constitutes “good news, …precisely from the fact he is experienced in counter-insurgency.” Palparan’s reputation precedes him, says Justice Secretary Raul Gonzalez. He is “painted as a devil,” and “that kind of reputation may be good for this campaign against drugs.” It is “unfortunate,” says incoming Press Secretary Cerge Remonde, that Palparan would come under fire for being “effective” against “communist terrorists.”
His name is Jovito Palparan, and there is a reason they call him the Butcher—although he was known as the torturer as early as 1981. Before his retirement in 2006, Palparan was linked to more than 500 cases of human rights abuse, mainly summary executions and disappearances, during his stints as commander of the 24th Infantry Battalion in Central Luzon, 204th Infantry Battalion in Mindoro and Romblon, and 8th Infantry Division in Samar and Leyte.
In 2007, a government-initiated commission headed by retired Supreme Court Justice Jose Melo recommended in its final report the investigation of retired Army Maj. Gen. Jovito Palparan for his alleged involvement in the killing of a human rights activist. “General Palparan and perhaps some of his superior officers may be held responsible for failing to prevent, punish or condemn the killings under the principle of command responsibility.”
Last October, a Supreme Court decision upheld the findings of the Court of Appeals linking Palparan to the abduction of brothers Raymond and Reynaldo Manalo, both farmers in Bulacan who were taken under military custody for 18 months on suspicion of being NPA rebels. Manalo’s testimony detailed torture, multiple rapes, murder, and a variety of other crimes, and included a narration of a meeting with Palparan, dressed in shorts, who told a limping Manalo that his life depended on whether Manalo proves “you are now on our side.”
The Supreme Court upheld the appellate court’s findings in 2007 that “Palparan’s participation in the abduction [of the brothers] was established.”
Palparan denies all of these, and adds that Raymond Manalo is a proven member of the New People’s Army. “We have records of that. He’s an enemy of the Cafgu (Citizens Armed Forces Geographical Unit),” he said.
It is surprising why these records never made their way to the court. After all, if Manalo were a member of the NPA, guilty of murder and extortion, Palparan seems to have neglected his duties by failing to bring Manalo to court.
Yet even with Supreme Court decisions, even with international indignation, even with his own testimonies, the government has chosen to give Palparan and his crimes a wide berth. Denial and silence have been the usual defense, behavior that was ominous enough even without the Manalo decision. Today, this government does not stop at a shameful silence—today it celebrates Palparan’s “expertise,” submits his “methods” as effective, and calls his long crusade of blood proof that “he can deliver.”
“The killings are being attributed to me,” he says, “but I did not kill them. I just inspire the triggermen.” He was delighted at the disappearance of the students who were volunteering outside of Manila—“Their disappearance is good for us but as to who abducted them, we don’t know.”
It does not matter whether they pit Palparan against drugs, or prostitution, or corruption, or smuggling, or whatever new cause the President decides to crusade against. Wherever he is, he will strike fear, here comes Lord Death, here comes the law of the barrel of the gun. He will be effective, because people will die, whether or not they are guilty, for as long as Palparan believes they are. Whatever the government owes Palparan, it is not worth making this man a god.
See: http://opinion.inquirer.net/inquireropinion/columns/view/20090201-186731/The-knighting-of-Jovito-Palparan
Monday, February 2, 2009
Police immunity
In the recent case of Pearson et al vs. Callahan, No. 07-751, January 21, 2009, the US Supreme Court concluded that petitioners (police officers) could not reasonably have believed that their conduct (illegal entry and search) was lawful because they knew that (1) they had no warrant; (2) respondent had not consented to their entry; and (3) his consent to the entry of an informant could not reasonably be interpreted to extend to them.
The Court stated that petitioners were entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional.
It held that the two-step sequence for resolving government officials' qualified immunity claims is as follows: A court must decide (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was "clearly established" at the time of the defendant's alleged misconduct. Qualified immunity applies unless the official's conduct violated such a right.
May I reproduce the case below, for legal research purposes of the visitors of this blog. Thus:
PEARSON et al. v. CALLAHAN
certiorari to the united states court of appeals for the tenth circuit
No. 07-751. Argued October 14, 2008--Decided January 21, 2009
After the Utah Court of Appeals vacated respondent's conviction for possession and distribution of drugs, which he sold to an undercover informant he had voluntarily admitted into his house, he brought this 42 U. S. C. §1983 damages action in federal court, alleging that petitioners, the officers who supervised and conducted the warrantless search of the premises that led to his arrest after the sale, had violated the Fourth Amendment. The District Court granted summary judgment in favor of the officers. Noting that other courts had adopted the "consent-once-removed" doctrine--which permits a warrantless police entry into a home when consent to enter has already been granted to an undercover officer who has observed contraband in plain view--the court concluded that the officers were entitled to qualified immunity because they could reasonably have believed that the doctrine authorized their conduct. Following the procedure mandated in Saucier v. Katz, 533 U. S. 194, the Tenth Circuit held that petitioners were not entitled to qualified immunity. The court disapproved broadening the consent-once-removed doctrine to situations in which the person granted initial consent was not an undercover officer, but merely an informant. It further held that the Fourth Amendment right to be free in one's home from unreasonable searches and arrests was clearly established at the time of respondent's arrest, and determined that, under this Court's clearly established precedents, warrantless entries into a home are per se unreasonable unless they satisfy one of the two established exceptions for consent and exigent circumstances. The court concluded that petitioners could not reasonably have believed that their conduct was lawful because they knew that (1) they had no warrant; (2) respondent had not consented to their entry; and (3) his consent to the entry of an informant could not reasonably be interpreted to extend to them. In granting certiorari, this Court directed the parties to address whether Saucier should be overruled in light of widespread criticism directed at it.
Held:
1. The Saucier procedure should not be regarded as an inflexible requirement. Pp. 5-19.
(a) Saucier mandated, see 533 U. S., at 194, a two-step sequence for resolving government officials' qualified immunity claims: A court must decide (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was "clearly established" at the time of the defendant's alleged misconduct, id., at 201. Qualified immunity applies unless the official's conduct violated such a right. Anderson v. Creighton, 483 U. S. 635, 640. Pp. 5-7.
(b) Stare decisis does not prevent this Court from determining whether the Saucier procedure should be modified or abandoned. Revisiting precedent is particularly appropriate where, as here, a departure would not upset settled expectations, see, e.g., United States v. Gaudin, 515 U. S. 506, 521; the precedent consists of a rule that is judge-made and adopted to improve court operations, not a statute promulgated by Congress, see, e.g., State Oil Co. v. Khan, 522 U. S. 3, 20; and the precedent has "been questioned by Members of th[is] Court in later decisions, and [has] defied consistent application by the lower courts," Payne v. Tennessee, 501 U. S. 808, 829-830. Respondent's argument that Saucier should not be reconsidered unless the Court concludes that it was "badly reasoned" or that its rule has proved "unworkable," see Payne, supra, at 827, is rejected. Those standards are out of place in the present context, where a considerable body of new experience supports a determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained. Pp. 7-10.
(c) Reconsideration of the Saucier procedure demonstrates that, while the sequence set forth therein is often appropriate, it should no longer be regarded as mandatory in all cases. Pp. 10-19.
(i) The Court continues to recognize that the Saucier protocol is often beneficial. In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. And Saucier was correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable for questions that do not frequently arise in cases in which a qualified immunity defense is unavailable. See 533 U. S., at 194. Pp. 10-11.
(ii) Nevertheless, experience in this Court and the lower federal courts has pointed out the rigid Saucier procedure's shortcomings. For example, it may result in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the case's outcome, and waste the parties' resources by forcing them to assume the costs of litigating constitutional questions and endure delays attributable to resolving those questions when the suit otherwise could be disposed of more readily. Moreover, although the procedure's first prong is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development, as where, e.g., a court of appeals decision is issued in an opinion marked as not precedential. Further, when qualified immunity is asserted at the pleading stage, the answer to whether there was a violation may depend on a kaleidoscope of facts not yet fully developed. And the first step may create a risk of bad decisionmaking, as where the briefing of constitutional questions is woefully inadequate.
Application of the Saucier rule also may make it hard for affected parties to obtain appellate review of constitutional decisions having a serious prospective effect on their operations. For example, where a court holds that a defendant has committed a constitutional violation, but then holds that the violation was not clearly established, the defendant, as the winning party, may have his right to appeal the adverse constitutional holding challenged. Because rigid adherence to Saucier departs from the general rule of constitutional avoidance, cf., e.g., Scott v. Harris, 550 U. S. 372, 388, the Court may appropriately decline to mandate the order of decision that the lower courts must follow, see, e.g., Strickland v. Washington, 466 U. S. 668, 697. This flexibility properly reflects the Court's respect for the lower federal courts. Because the two-step Saucier procedure is often, but not always, advantageous, those judges are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each case. Pp. 11-17.
(iii) Misgivings concerning today's decision are unwarranted. It does not prevent the lower courts from following Saucier; it simply recognizes that they should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, it will not retard the development of constitutional law, result in a proliferation of damages claims against local governments, or spawn new litigation over the standards for deciding whether to reach the particular case's merits. Pp. 17-19.
2. Petitioners are entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional. When the entry occurred, the consent-once-removed doctrine had been accepted by two State Supreme Courts and three Federal Courts of Appeals, and not one of the latter had issued a contrary decision. Petitioners were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on consent-once-removed entries. See Wilson v. Layne, 526 U. S. 603, 618. Pp. 19-20.
494 F. 3d 891, reversed.
Alito, J., delivered the opinion for a unanimous Court.
________________________________________
CORDELL PEARSON, et al., PETITIONERS v. AFTON
CALLAHAN
on writ of certiorari to the united states court of appeals for the tenth circuit
[January 21, 2009]
________________________________________
Justice Alito delivered the opinion of the Court.
This is an action brought by respondent under Rev. Stat. §1979, 42 U. S. C. §1983, against state law enforcement officers who conducted a warrantless search of his house incident to his arrest for the sale of methamphetamine to an undercover informant whom he had voluntarily admitted to the premises. The Court of Appeals held that petitioners were not entitled to summary judgment on qualified immunity grounds. Following the procedure we mandated in Saucier v. Katz, 533 U. S. 194 (2001), the Court of Appeals held, first, that respondent adduced facts sufficient to make out a violation of the Fourth Amendment and, second, that the unconstitutionality of the officers' conduct was clearly established. In granting review, we required the parties to address the additional question whether the mandatory procedure set out in Saucier should be retained.
We now hold that the Saucier procedure should not be regarded as an inflexible requirement and that petitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional. We therefore reverse.
I
A
The Central Utah Narcotics Task Force is charged with investigating illegal drug use and sales. In 2002, Brian Bartholomew, who became an informant for the task force after having been charged with the unlawful possession of methamphetamine, informed Officer Jeffrey Whatcott that respondent Afton Callahan had arranged to sell Bartholomew methamphetamine later that day.
That evening, Bartholomew arrived at respondent's residence at about 8 p.m. Once there, Bartholomew went inside and confirmed that respondent had methamphetamine available for sale. Bartholomew then told respondent that he needed to obtain money to make his purchase and left.
Bartholomew met with members of the task force at about 9 p.m. and told them that he would be able to buy a gram of methamphetamine for $100. After concluding that Bartholomew was capable of completing the planned purchase, the officers searched him, determined that he had no controlled substances on his person, gave him a marked $100 bill and a concealed electronic transmitter to monitor his conversations, and agreed on a signal that he would give after completing the purchase.
The officers drove Bartholomew to respondent's trailer home, and respondent's daughter let him inside. Respondent then retrieved a large bag containing methamphetamine from his freezer and sold Bartholomew a gram of methamphetamine, which he put into a small plastic bag. Bartholomew gave the arrest signal to the officers who were monitoring the conversation, and they entered the trailer through a porch door. In the enclosed porch, the officers encountered Bartholomew, respondent, and two other persons, and they saw respondent drop a plastic bag, which they later determined contained methamphetamine. The officers then conducted a protective sweep
of the premises. In addition to the large bag of meth-
amphetamine, the officers recovered the marked bill
from respondent and a small bag containing meth-
amphetamine from Bartholomew, and they found drug syringes in the residence. As a result, respondent was charged with the unlawful possession and distribution of methamphetamine.
B
The trial court held that the warrantless arrest and search were supported by exigent circumstances. On respondent's appeal from his conviction, the Utah attorney general conceded the absence of exigent circumstances, but urged that the inevitable discovery doctrine justified introduction of the fruits of the warrantless search. The Utah Court of Appeals disagreed and vacated respondent's conviction. See State v. Callahan, 2004 LIT App. 164, 93 P. 3d 103. Respondent then brought this damages action under 42 U. S. C. §1983 in the United States District Court for the District of Utah, alleging that the officers had violated the Fourth Amendment by entering his home without a warrant. See Callahan v. Millard Cty., No. 2:04-CV-00952, 2006 WL 1409130 (2006).
In granting the officers' motion for summary judgment, the District Court noted that other courts had adopted the "consent-once-removed" doctrine, which permits a warrantless entry by police officers into a home when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view. Believing that this doctrine was in tension with our intervening decision in Georgia v. Randolph, 547 U. S. 103 (2006), the District Court concluded that "the simplest approach is to assume that the Supreme Court will ultimately reject the [consent-once-removed] doctrine and find that searches such as the one in this case are not reasonable under the Fourth Amendment." 2006 WL 1409130, at *8. The Court then held that the officers were entitled to qualified immunity because they could reasonably have believed that the consent-once-removed doctrine authorized their conduct.
On appeal, a divided panel of the Tenth Circuit held that petitioners' conduct violated respondent's Fourth Amendment rights. Callahan v. Millard Cty., 494 F. 3d 891, 895-899 (2007). The panel majority stated that "[t]he 'consent-once-removed' doctrine applies when an undercover officer enters a house at the express invitation of someone with authority to consent, establishes probable cause to arrest or search, and then immediately summons other officers for assistance." Id., at 896. The majority took no issue with application of the doctrine when the initial consent was granted to an undercover law enforcement officer, but the majority disagreed with decisions that "broade[n] this doctrine to grant informants the same capabilities as undercover officers." Ibid.
The Tenth Circuit panel further held that the Fourth Amendment right that it recognized was clearly established at the time of respondent's arrest. Id., at 898-899. "In this case," the majority stated, "the relevant right is the right to be free in one's home from unreasonable searches and arrests." Id., at 898. The Court determined that, under the clearly established precedents of this Court and the Tenth Circuit, "warrantless entries into a home are per se unreasonable unless they satisfy the established exceptions." Id., at 898-899. In the panel's words, "the Supreme Court and the Tenth Circuit have clearly established that to allow police entry into a home, the only two exceptions to the warrant requirement are consent and exigent circumstances." Id., at 899. Against that backdrop, the panel concluded, petitioners could not reasonably have believed that their conduct was lawful because petitioners "knew (1) they had no warrant; (2) [respondent] had not consented to their entry; and (3) [respondent's] consent to the entry of an informant could not reasonably be interpreted to extend to them." Ibid.
In dissent, Judge Kelly argued that "no constitutional violation occurred in this case" because, by inviting Bartholomew into his house and participating in a narcotics transaction there, respondent had compromised the privacy of the residence and had assumed the risk that Bartholomew would reveal their dealings to the police. Id., at 903. Judge Kelly further concluded that, even if petitioners' conduct had been unlawful, they were nevertheless entitled to qualified immunity because the constitutional right at issue--"the right to be free from the warrantless entry of police officers into one's home to effectuate an arrest after one has granted voluntary, consensual entry to a confidential informant and undertaken criminal activity giving rise to probable cause"--was not "clearly established" at the time of the events in question. Id., at 903-904.
As noted, the Court of Appeals followed the Saucier procedure. The Saucier procedure has been criticized by Members of this Court and by lower court judges, who have been required to apply the procedure in a great variety of cases and thus have much firsthand experience bearing on its advantages and disadvantages. Accordingly, in granting certiorari, we directed the parties to address the question whether Saucier should be overruled. 552 U. S. ___ (2008).
II
A
The doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). Qualified immunity balances two important interests--the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Groh v. Ramirez, 540 U. S. 551, 567 (2004) (Kennedy, J., dissenting) (citing Butz v. Economou, 438 U. S. 478, 507 (1978) (noting that qualified immunity covers "mere mistakes in judgment, whether the mistake is one of fact or one of law")).
Because qualified immunity is "an immunity from suit rather than a mere defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U. S. 511, 526 (1985) (emphasis deleted). Indeed, we have made clear that the "driving force" behind creation of the qualified immunity doctrine was a desire to ensure that " 'insubstantial claims' against government officials [will] be resolved prior to discovery." Anderson v. Creighton, 483 U. S. 635, 640, n. 2 (1987). Accordingly, "we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U. S. 224, 227 (1991) (per curiam).
In Saucier, 533 U. S. 194, this Court mandated a two-step sequence for resolving government officials' qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right. 533 U. S., at 201. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was "clearly established" at the time of defendant's alleged misconduct. Ibid. Qualified immunity is applicable unless the official's conduct violated a clearly established constitutional right. Anderson, supra, at 640.
Our decisions prior to Saucier had held that "the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all." County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998). Saucier made that suggestion a mandate. For the first time, we held that whether "the facts alleged show the officer's conduct violated a constitutional right ... must be the initial inquiry" in every qualified immunity case. 533 U. S., at 20 (emphasis added). Only after completing this first step, we said, may a court turn to "the next, sequential step," namely, "whether the right was clearly established." Ibid.
This two-step procedure, the Saucier Court reasoned, is necessary to support the Constitution's "elaboration from case to case" and to prevent constitutional stagnation. Ibid. "The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case." Ibid.
B
In considering whether the Saucier procedure should be modified or abandoned, we must begin with the doctrine of stare decisis. Stare decisis "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U. S. 808, 827 (1991). Although "[w]e approach the reconsideration of [our] decisions ... with the utmost caution," "[s]tare decisis is not an inexorable command." State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) (internal quotation marks omitted). Revisiting precedent is particularly appropriate where, as here, a departure would not upset expectations, the precedent consists of a judge-made rule that was recently adopted to improve the operation of the courts, and experience has pointed up the precedent's shortcomings.
"Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases ... involving procedural and evidentiary rules" that do not produce such reliance. Payne, supra, at 828 (citations omitted). Like rules governing procedures and the admission of evidence in the trial courts, Saucier's two-step protocol does not affect the way in which parties order their affairs. Withdrawing from Saucier's categorical rule would not upset settled expectations on anyone's part. See United States v. Gaudin, 515 U. S. 506, 521 (1995).
Nor does this matter implicate "the general presumption that legislative changes should be left to Congress." Khan, supra, at 20. We recognize that "considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation." Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977). But the Saucier rule is judge made and implicates an important matter involving internal Judicial Branch operations. Any change should come from this Court, not Congress.
Respondent argues that the Saucier procedure should not be reconsidered unless we conclude that its justification was "badly reasoned" or that the rule has proved to be "unworkable," see Payne, supra, at 827, but those standards, which are appropriate when a constitutional or statutory precedent is challenged, are out of place in the present context. Because of the basis and the nature of the Saucier two-step protocol, it is sufficient that we now have a considerable body of new experience to consider regarding the consequences of requiring adherence to this inflexible procedure. This experience supports our present determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained.
Lower court judges, who have had the task of applying the Saucier rule on a regular basis for the past eight years, have not been reticent in their criticism of Saucier's "rigid order of battle." See, e.g., Purtell v. Mason, 527 F. 3d 615, 622 (CA7 2008) ("This 'rigid order of battle' has been criticized on practical, procedural, and substantive grounds"); Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U. L. Rev. 1249, 1275, 1277 (2006) (referring to Saucier's mandatory two-step framework as "a new and mischievous rule" that amounts to "a puzzling misadventure in constitutional dictum"). And application of the rule has not always been enthusiastic. See Higazy v. Templeton, 505 F. 3d 161, 179, n. 19 (CA2 2007) ("We do not reach the issue of whether [plaintiff's] Sixth Amendment rights were violated, because principles of judicial restraint caution us to avoid reaching constitutional questions when they are unnecessary to the disposition of a case"); Cherrington v. Skeeter, 344 F. 3d 631, 640 (CA6 2003) ("[I]t ultimately is unnecessary for us to decide whether the individual Defendants did or did not heed the Fourth Amendment command ... because they are entitled to qualified immunity in any event"); Pearson v. Ramos, 237 F. 3d 881, 884 (CA7 2001) ("Whether [the Saucier] rule is absolute may be doubted").
Members of this Court have also voiced criticism of the Saucier rule. See Morse v. Frederick, 551 U. S. ___, ___ (2007) (slip op., at 8) (Breyer, J., concurring in judgment in part and dissenting in part) ("I would end the failed Saucier experiment now"); Bunting v. Mellen, 541 U. S. 1019 (2004) (Stevens, J., joined by Ginsburg and Breyer, JJ., respecting denial of certiorari) (criticizing the "unwise judge-made rule under which courts must decide whether the plaintiff has alleged a constitutional violation before addressing the question whether the defendant state actor is entitled to qualified immunity"); Id., at 1025 (Scalia, J., joined by Rehnquist, C. J., dissenting from denial of certiorari) ("We should either make clear that constitutional determinations are not insulated from our review ... or else drop any pretense at requiring the ordering in every case" (emphasis in original)); Brosseau v. Haugen, 543 U. S. 194, 201-202 (2004) (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring) (urging Court to reconsider Saucier's "rigid 'order of battle,' " which "requires courts unnecessarily to decide difficult constitutional questions when there is available an easier basis for the decision (e.g., qualified immunity) that will satisfactorily resolve the case before the court"); Saucier, 533 U. S., at 210 (Ginsburg, J., concurring in judgment) ("The two-part test today's decision imposes holds large potential to confuse").
Where a decision has "been questioned by Members of the Court in later decisions and [has] defied consistent application by the lower courts," these factors weigh in favor of reconsideration. Payne, 501 U. S., at 829-830; see also Crawford v. Washington, 541 U. S. 36, 60 (2004). Collectively, the factors we have noted make our present reevaluation of the Saucier two-step protocol appropriate.
III
On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.
A
Although we now hold that the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial. For one thing, there are cases in which there would be little if any conservation of judicial resources to be had by beginning and ending with a discussion of the "clearly established" prong. "[I]t often may be difficult to decide whether a right is clearly established without deciding precisely what the constitutional right happens to be." Lyons v. Xenia, 417 F. 3d 565, 581 (CA6 2005) (Sutton, J., concurring). In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. In addition, the Saucier Court was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valu-
able with respect to questions that do not frequently
arise in cases in which a qualified immunity defense is unavailable.
B
At the same time, however, the rigid Saucier procedure comes with a price. The procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case. There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right. District courts and courts of appeals with heavy caseloads are often understandably unenthusiastic about what may seem to be an essentially academic exercise.
Unnecessary litigation of constitutional issues also wastes the parties' resources. Qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell, 472 U. S., at 526 (emphasis deleted). Saucier's two-step protocol "disserve[s] the purpose of qualified immunity" when it "forces the parties to endure additional burdens of suit--such as the costs of litigating constitutional questions and delays attributable to resolving them--when the suit otherwise could be disposed of more readily." Brief for Nat. Assn. of Criminal Defense Lawyers as Amicus Curiae 30.
Although the first prong of the Saucier procedure is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development. For one thing, there are cases in which the constitutional question is so fact-bound that the decision provides little guidance for future cases. See Scott v. Harris, 550 U. S. 372, 388 (2007) (Breyer, J., concurring) (counseling against the Saucier two-step protocol where the question is "so fact dependent that the result will be confusion rather than clarity"); Buchanan v. Maine, 469 F. 3d 158, 168 (CA1 2006) ("We do not think the law elaboration purpose will be well served here, where the Fourth Amendment inquiry involves a reasonableness question which is highly idiosyncratic and heavily dependent on the facts").
A decision on the underlying constitutional question in a §1983 damages action or a Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),1 action may have scant value when it appears that the question will soon be decided by a higher court. When presented with a constitutional question on which this Court had just granted certiorari, the Ninth Circuit elected to "bypass Saucier's first step and decide only whether [the alleged right] was clearly established." Motley v. Parks, 432 F. 3d 1072, 1078, and n. 5 (2005) (en banc). Similar considerations may come into play when a court of appeals panel confronts a constitutional question that is pending before the court en banc or when a district court encounters a constitutional question that is before the court of appeals.
A constitutional decision resting on an uncertain interpretation of state law is also of doubtful precedential importance. As a result, several courts have identified an "exception" to the Saucier rule for cases in which resolution of the constitutional question requires clarification of an ambiguous state statute. Egolf v. Witmer, 526 F. 3d 104, 109-111 (CA3 2008); accord, Tremblay v. McClellan, 350 F. 3d 195, 200 (CA1 2003); Ehrlich v. Glastonbury, 348 F. 3d 48, 57-60 (CA2 2003). Justifying the decision to grant qualified immunity to the defendant without first resolving, under Saucier's first prong, whether the defendant's conduct violated the Constitution, these courts have observed that Saucier's "underlying principle" of encouraging federal courts to decide unclear legal questions in order to clarify the law for the future "is not meaningfully advanced ... when the definition of constitutional rights depends on a federal court's uncertain assumptions about state law." Egolf, supra, at 110; accord, Tremblay, supra, at 200; Ehrlich, supra, at 58.
When qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff's claim or claims may be hard to identify. See Lyons, supra, at 582 (Sutton, J., concurring); Kwai Fun Wong v. United States, 373 F. 3d 952, 957 (CA9 2004); Mollica v. Volker, 229 F. 3d 366, 374 (CA2 2000). Accordingly, several courts have recognized that the two-step inquiry "is an uncomfortable exercise where ... the answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet fully developed" and have suggested that "[i]t may be that Saucier was not strictly intended to cover" this situation. Dirrane v. Brookline Police Dept., 315 F. 3d 65, 69-70 (CA1 2002); see also Robinette v. Jones, 476 F. 3d 585, 592, n. 8 (CA8 2007) (declining to follow Saucier because "the parties have provided very few facts to define and limit any holding" on the constitutional question).
There are circumstances in which the first step of the Saucier procedure may create a risk of bad decisionmaking. The lower courts sometimes encounter cases in which the briefing of constitutional questions is woefully inadequate. See Lyons, 417 F. 3d, at 582 (Sutton, J., concurring) (noting the "risk that constitutional questions may be prematurely and incorrectly decided in cases where they are not well presented"); Mollica, supra, at 374.
Although the Saucier rule prescribes the sequence in which the issues must be discussed by a court in its opinion, the rule does not--and obviously cannot--specify the sequence in which judges reach their conclusions in their own internal thought processes. Thus, there will be cases in which a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all. In such situations, there is a risk that a court may not devote as much care as it would in other circumstances to the decision of the constitutional issue. See Horne v. Coughlin, 191 F. 3d, 244, 247 (CA2 1999) ("Judges risk being insufficiently thoughtful and cautious in uttering pronouncements that play no role in their adjudication"); Leval 1278-1279.
Rigid adherence to the Saucier rule may make it hard for affected parties to obtain appellate review of constitutional decisions that may have a serious prospective effect on their operations. Where a court holds that a defendant committed a constitutional violation but that the violation was not clearly established, the defendant may face a difficult situation. As the winning party, the defendant's right to appeal the adverse holding on the constitutional question may be contested. See Bunting, 541 U. S., at 1025 (Scalia, J., dissenting from denial of certiorari) ("The perception of unreviewability undermines adherence to the sequencing rule we . . . created" in Saucier);2 see also Kalka v. Hawk, 215 F. 3d 90, 96, n. 9 (CADC 2000) (noting that "[n]ormally, a party may not appeal from a favorable judgment" and that the Supreme Court "has apparently never granted the certiorari petition of a party who prevailed in the appellate court"). In cases like Bunting, the "prevailing" defendant faces an unenviable choice: "compl[y] with the lower court's advisory dictum without opportunity to seek appellate [or certiorari] review," or "def[y] the views of the lower court, adher[e] to practices that have been declared illegal, and thus invit[e] new suits" and potential "punitive damages." Horne, supra, at 247-248.
Adherence to Saucier's two-step protocol departs from the general rule of constitutional avoidance and runs counter to the "older, wiser judicial counsel 'not to pass on questions of constitutionality ... unless such adjudication is unavoidable.' " Scott, 550 U. S., at 388 (Breyer, J., concurring) (quoting Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944)); see Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) ("The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of ").
In other analogous contexts, we have appropriately declined to mandate the order of decision that the lower courts must follow. For example, in Strickland v. Washington, 466 U. S. 668 (1984), we recognized a two-part test for determining whether a criminal defendant was denied the effective assistance of counsel: The defendant must demonstrate (1) that his counsel's performance fell below what could be expected of a reasonably competent practitioner; and (2) that he was prejudiced by that substandard performance. Id., at 687. After setting forth and applying the analytical framework that courts must use in evaluating claims of ineffective assistance of counsel, we left it to the sound discretion of lower courts to determine the order of decision. Id., at 697 ("Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one").
In United States v. Leon, 468 U. S. 897 (1984), we created an exception to the exclusionary rule when officers reasonably rely on a facially valid search warrant. Id., at 913. In that context, we recognized that a defendant challenging a search will lose if either: (1) the warrant issued was supported by probable cause; or (2) it was not, but the officers executing it reasonably believed that it was. Again, after setting forth and applying the analytical framework that courts must use in evaluating the good-faith exception to the Fourth Amendment warrant requirement, we left it to the sound discretion of the lower courts to determine the order of decision. Id., at 924, 925 ("There is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated").
This flexibility properly reflects our respect for the lower federal courts that bear the brunt of adjudicating these cases. Because the two-step Saucier procedure is often, but not always, advantageous, the judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking will best facilitate the fair and efficient disposition of each case.
C
Any misgivings concerning our decision to withdraw from the mandate set forth in Saucier are unwarranted. Our decision does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, the development of constitutional law is by no means entirely dependent on cases in which the defendant may seek qualified immunity. Most of the constitutional issues that are presented in §1983 damages actions and Bivens cases also arise in cases in which that defense is not available, such as criminal cases and §1983 cases against a municipality, as well as §1983 cases against individuals where injunctive relief is sought instead of or in addition to damages. See Lewis, 523 U. S., at 841, n. 5 (noting that qualified immunity is unavailable "in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion").
We also do not think that relaxation of Saucier's mandate is likely to result in a proliferation of damages claims against local governments. Compare Brief for Nat. Assn. of Counties et al., as Amici Curiae 29, 30 ("[T]o the extent that a rule permitting courts to bypass the merits makes it more difficult for civil rights plaintiffs to pursue novel claims, they will have greater reason to press custom, policy, or practice [damages] claims against local governments"). It is hard to see how the Saucier procedure could have a significant effect on a civil rights plaintiff's decision whether to seek damages only from a municipal employee or also from the municipality. Whether the Saucier procedure is mandatory or discretionary, the plaintiff will presumably take into account the possibility that the individual defendant will be held to have qualified immunity, and presumably the plaintiff will seek damages from the municipality as well as the individual employee if the benefits of doing so (any increase in the likelihood of recovery or collection of damages) outweigh the litigation costs.
Nor do we think that allowing the lower courts to exercise their discretion with respect to the Saucier procedure will spawn "a new cottage industry of litigation ... over the standards for deciding whether to reach the merits in a given case." Brief for Nat. Assn. of Counties et al. as Amici Curiae 29, 30. It does not appear that such a "cottage industry" developed prior to Saucier, and we see no reason why our decision today should produce such a result.
IV
Turning to the conduct of the officers here, we hold that petitioners are entitled to qualified immunity because the entry did not violate clearly established law. An officer conducting a search is entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment. See Anderson, 483 U. S., at 641. This inquiry turns on the "objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." Wilson v. Layne, 526 U. S. 603, 614 (1999) (internal quotation marks omitted); see Hope v. Pelzer, 536 U. S. 730, 739 (2002) ("[Q]ualified immunity operates to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful" (internal quotation marks omitted)).
When the entry at issue here occurred in 2002, the "consent-once-removed" doctrine had gained acceptance in the lower courts. This doctrine had been considered by three Federal Courts of Appeals and two State Supreme Courts starting in the early 1980's. See, e.g., United States v. Diaz, 814 F. 2d 454, 459 (CA7), cert. denied, 484 U. S. 857 (1987); United States v. Bramble, 103 F. 3d 1475 (CA9 1996); United States v. Pollard, 215 F. 3d 643, 648-649 (CA6), cert. denied, 531 U. S. 999 (2000); State v. Henry, 133 N. J. 104, 627 A. 2d 125 (1993); State v. Johnston, 184 Wis. 2d 794, 518 N. W. 2d 759 (1994). It had been accepted by every one of those courts. Moreover, the Seventh Circuit had approved the doctrine's application to cases involving consensual entries by private citizens acting as confidential informants. See United States v. Paul, 808 F. 2d, 645, 648 (1986). The Sixth Circuit reached the same conclusion after the events that gave rise to respondent's suit, see United States v. Yoon, 398 F. 3d 802, 806-808, cert. denied, 546 U. S. 977 (2005), and prior to the Tenth Circuit's decision in the present case, no court of appeals had issued a contrary decision.
The officers here were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on "consent-once-removed" entries. The principles of qualified immunity shield an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law. Police officers are entitled to rely on existing lower court cases without facing personal liability for their actions. In Wilson, we explained that a Circuit split on the relevant issue had developed after the events that gave rise to suit and concluded that "[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy." 526 U. S., at 618. Likewise, here, where the divergence of views on the consent-once-removed doctrine was created by the decision of the Court of Appeals in this case, it is improper to subject petitioners to money damages for their conduct.
Because the unlawfulness of the officers' conduct in this case was not clearly established, petitioners are entitled to qualified immunity. We therefore reverse the judgment of the Court of Appeals.
It is so ordered.
________________________________________
FOOTNOTES
Footnote 1
See Harlow v. Fitzgerald, 457 U. S. 800, 818, and n. 30 (1982) (noting that the Court's decisions equate the qualified immunity of state officials sued under 42 U. S. C. §1983 with the immunity of federal officers sued directly under the Constitution).
Footnote 2
In Bunting, the Court of Appeals followed the Saucier two-step protocol and first held that the Virginia Military Institute's use of the word "God" in a "supper roll call" ceremony violated the Establishment Clause, but then granted the defendants qualified immunity because the law was not clearly established at the relevant time. Mellen v. Bunting, 327 F. 3d 355, 365-376 (CA4 2003), cert. denied, 541 U. S. 1019 (2004). Although they had a judgment in their favor below, the defendants asked this Court to review the adverse constitutional ruling. Dissenting from the denial of certiorari, Justice Scalia, joined by Chief Justice Rehnquist, criticized "a perceived procedural tangle of the Court's own making." 541 U. S., at 1022. The "tangle" arose from the Court's " 'settled refusal' to entertain an appeal by a party on an issue as to which he prevailed" below, a practice that insulates from review adverse merits decisions that are "locked inside" favorable qualified immunity rulings. Id., at 1023, 1024.
•
•
The Court stated that petitioners were entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional.
It held that the two-step sequence for resolving government officials' qualified immunity claims is as follows: A court must decide (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was "clearly established" at the time of the defendant's alleged misconduct. Qualified immunity applies unless the official's conduct violated such a right.
May I reproduce the case below, for legal research purposes of the visitors of this blog. Thus:
PEARSON et al. v. CALLAHAN
certiorari to the united states court of appeals for the tenth circuit
No. 07-751. Argued October 14, 2008--Decided January 21, 2009
After the Utah Court of Appeals vacated respondent's conviction for possession and distribution of drugs, which he sold to an undercover informant he had voluntarily admitted into his house, he brought this 42 U. S. C. §1983 damages action in federal court, alleging that petitioners, the officers who supervised and conducted the warrantless search of the premises that led to his arrest after the sale, had violated the Fourth Amendment. The District Court granted summary judgment in favor of the officers. Noting that other courts had adopted the "consent-once-removed" doctrine--which permits a warrantless police entry into a home when consent to enter has already been granted to an undercover officer who has observed contraband in plain view--the court concluded that the officers were entitled to qualified immunity because they could reasonably have believed that the doctrine authorized their conduct. Following the procedure mandated in Saucier v. Katz, 533 U. S. 194, the Tenth Circuit held that petitioners were not entitled to qualified immunity. The court disapproved broadening the consent-once-removed doctrine to situations in which the person granted initial consent was not an undercover officer, but merely an informant. It further held that the Fourth Amendment right to be free in one's home from unreasonable searches and arrests was clearly established at the time of respondent's arrest, and determined that, under this Court's clearly established precedents, warrantless entries into a home are per se unreasonable unless they satisfy one of the two established exceptions for consent and exigent circumstances. The court concluded that petitioners could not reasonably have believed that their conduct was lawful because they knew that (1) they had no warrant; (2) respondent had not consented to their entry; and (3) his consent to the entry of an informant could not reasonably be interpreted to extend to them. In granting certiorari, this Court directed the parties to address whether Saucier should be overruled in light of widespread criticism directed at it.
Held:
1. The Saucier procedure should not be regarded as an inflexible requirement. Pp. 5-19.
(a) Saucier mandated, see 533 U. S., at 194, a two-step sequence for resolving government officials' qualified immunity claims: A court must decide (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was "clearly established" at the time of the defendant's alleged misconduct, id., at 201. Qualified immunity applies unless the official's conduct violated such a right. Anderson v. Creighton, 483 U. S. 635, 640. Pp. 5-7.
(b) Stare decisis does not prevent this Court from determining whether the Saucier procedure should be modified or abandoned. Revisiting precedent is particularly appropriate where, as here, a departure would not upset settled expectations, see, e.g., United States v. Gaudin, 515 U. S. 506, 521; the precedent consists of a rule that is judge-made and adopted to improve court operations, not a statute promulgated by Congress, see, e.g., State Oil Co. v. Khan, 522 U. S. 3, 20; and the precedent has "been questioned by Members of th[is] Court in later decisions, and [has] defied consistent application by the lower courts," Payne v. Tennessee, 501 U. S. 808, 829-830. Respondent's argument that Saucier should not be reconsidered unless the Court concludes that it was "badly reasoned" or that its rule has proved "unworkable," see Payne, supra, at 827, is rejected. Those standards are out of place in the present context, where a considerable body of new experience supports a determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained. Pp. 7-10.
(c) Reconsideration of the Saucier procedure demonstrates that, while the sequence set forth therein is often appropriate, it should no longer be regarded as mandatory in all cases. Pp. 10-19.
(i) The Court continues to recognize that the Saucier protocol is often beneficial. In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. And Saucier was correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable for questions that do not frequently arise in cases in which a qualified immunity defense is unavailable. See 533 U. S., at 194. Pp. 10-11.
(ii) Nevertheless, experience in this Court and the lower federal courts has pointed out the rigid Saucier procedure's shortcomings. For example, it may result in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the case's outcome, and waste the parties' resources by forcing them to assume the costs of litigating constitutional questions and endure delays attributable to resolving those questions when the suit otherwise could be disposed of more readily. Moreover, although the procedure's first prong is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development, as where, e.g., a court of appeals decision is issued in an opinion marked as not precedential. Further, when qualified immunity is asserted at the pleading stage, the answer to whether there was a violation may depend on a kaleidoscope of facts not yet fully developed. And the first step may create a risk of bad decisionmaking, as where the briefing of constitutional questions is woefully inadequate.
Application of the Saucier rule also may make it hard for affected parties to obtain appellate review of constitutional decisions having a serious prospective effect on their operations. For example, where a court holds that a defendant has committed a constitutional violation, but then holds that the violation was not clearly established, the defendant, as the winning party, may have his right to appeal the adverse constitutional holding challenged. Because rigid adherence to Saucier departs from the general rule of constitutional avoidance, cf., e.g., Scott v. Harris, 550 U. S. 372, 388, the Court may appropriately decline to mandate the order of decision that the lower courts must follow, see, e.g., Strickland v. Washington, 466 U. S. 668, 697. This flexibility properly reflects the Court's respect for the lower federal courts. Because the two-step Saucier procedure is often, but not always, advantageous, those judges are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each case. Pp. 11-17.
(iii) Misgivings concerning today's decision are unwarranted. It does not prevent the lower courts from following Saucier; it simply recognizes that they should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, it will not retard the development of constitutional law, result in a proliferation of damages claims against local governments, or spawn new litigation over the standards for deciding whether to reach the particular case's merits. Pp. 17-19.
2. Petitioners are entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional. When the entry occurred, the consent-once-removed doctrine had been accepted by two State Supreme Courts and three Federal Courts of Appeals, and not one of the latter had issued a contrary decision. Petitioners were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on consent-once-removed entries. See Wilson v. Layne, 526 U. S. 603, 618. Pp. 19-20.
494 F. 3d 891, reversed.
Alito, J., delivered the opinion for a unanimous Court.
________________________________________
CORDELL PEARSON, et al., PETITIONERS v. AFTON
CALLAHAN
on writ of certiorari to the united states court of appeals for the tenth circuit
[January 21, 2009]
________________________________________
Justice Alito delivered the opinion of the Court.
This is an action brought by respondent under Rev. Stat. §1979, 42 U. S. C. §1983, against state law enforcement officers who conducted a warrantless search of his house incident to his arrest for the sale of methamphetamine to an undercover informant whom he had voluntarily admitted to the premises. The Court of Appeals held that petitioners were not entitled to summary judgment on qualified immunity grounds. Following the procedure we mandated in Saucier v. Katz, 533 U. S. 194 (2001), the Court of Appeals held, first, that respondent adduced facts sufficient to make out a violation of the Fourth Amendment and, second, that the unconstitutionality of the officers' conduct was clearly established. In granting review, we required the parties to address the additional question whether the mandatory procedure set out in Saucier should be retained.
We now hold that the Saucier procedure should not be regarded as an inflexible requirement and that petitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional. We therefore reverse.
I
A
The Central Utah Narcotics Task Force is charged with investigating illegal drug use and sales. In 2002, Brian Bartholomew, who became an informant for the task force after having been charged with the unlawful possession of methamphetamine, informed Officer Jeffrey Whatcott that respondent Afton Callahan had arranged to sell Bartholomew methamphetamine later that day.
That evening, Bartholomew arrived at respondent's residence at about 8 p.m. Once there, Bartholomew went inside and confirmed that respondent had methamphetamine available for sale. Bartholomew then told respondent that he needed to obtain money to make his purchase and left.
Bartholomew met with members of the task force at about 9 p.m. and told them that he would be able to buy a gram of methamphetamine for $100. After concluding that Bartholomew was capable of completing the planned purchase, the officers searched him, determined that he had no controlled substances on his person, gave him a marked $100 bill and a concealed electronic transmitter to monitor his conversations, and agreed on a signal that he would give after completing the purchase.
The officers drove Bartholomew to respondent's trailer home, and respondent's daughter let him inside. Respondent then retrieved a large bag containing methamphetamine from his freezer and sold Bartholomew a gram of methamphetamine, which he put into a small plastic bag. Bartholomew gave the arrest signal to the officers who were monitoring the conversation, and they entered the trailer through a porch door. In the enclosed porch, the officers encountered Bartholomew, respondent, and two other persons, and they saw respondent drop a plastic bag, which they later determined contained methamphetamine. The officers then conducted a protective sweep
of the premises. In addition to the large bag of meth-
amphetamine, the officers recovered the marked bill
from respondent and a small bag containing meth-
amphetamine from Bartholomew, and they found drug syringes in the residence. As a result, respondent was charged with the unlawful possession and distribution of methamphetamine.
B
The trial court held that the warrantless arrest and search were supported by exigent circumstances. On respondent's appeal from his conviction, the Utah attorney general conceded the absence of exigent circumstances, but urged that the inevitable discovery doctrine justified introduction of the fruits of the warrantless search. The Utah Court of Appeals disagreed and vacated respondent's conviction. See State v. Callahan, 2004 LIT App. 164, 93 P. 3d 103. Respondent then brought this damages action under 42 U. S. C. §1983 in the United States District Court for the District of Utah, alleging that the officers had violated the Fourth Amendment by entering his home without a warrant. See Callahan v. Millard Cty., No. 2:04-CV-00952, 2006 WL 1409130 (2006).
In granting the officers' motion for summary judgment, the District Court noted that other courts had adopted the "consent-once-removed" doctrine, which permits a warrantless entry by police officers into a home when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view. Believing that this doctrine was in tension with our intervening decision in Georgia v. Randolph, 547 U. S. 103 (2006), the District Court concluded that "the simplest approach is to assume that the Supreme Court will ultimately reject the [consent-once-removed] doctrine and find that searches such as the one in this case are not reasonable under the Fourth Amendment." 2006 WL 1409130, at *8. The Court then held that the officers were entitled to qualified immunity because they could reasonably have believed that the consent-once-removed doctrine authorized their conduct.
On appeal, a divided panel of the Tenth Circuit held that petitioners' conduct violated respondent's Fourth Amendment rights. Callahan v. Millard Cty., 494 F. 3d 891, 895-899 (2007). The panel majority stated that "[t]he 'consent-once-removed' doctrine applies when an undercover officer enters a house at the express invitation of someone with authority to consent, establishes probable cause to arrest or search, and then immediately summons other officers for assistance." Id., at 896. The majority took no issue with application of the doctrine when the initial consent was granted to an undercover law enforcement officer, but the majority disagreed with decisions that "broade[n] this doctrine to grant informants the same capabilities as undercover officers." Ibid.
The Tenth Circuit panel further held that the Fourth Amendment right that it recognized was clearly established at the time of respondent's arrest. Id., at 898-899. "In this case," the majority stated, "the relevant right is the right to be free in one's home from unreasonable searches and arrests." Id., at 898. The Court determined that, under the clearly established precedents of this Court and the Tenth Circuit, "warrantless entries into a home are per se unreasonable unless they satisfy the established exceptions." Id., at 898-899. In the panel's words, "the Supreme Court and the Tenth Circuit have clearly established that to allow police entry into a home, the only two exceptions to the warrant requirement are consent and exigent circumstances." Id., at 899. Against that backdrop, the panel concluded, petitioners could not reasonably have believed that their conduct was lawful because petitioners "knew (1) they had no warrant; (2) [respondent] had not consented to their entry; and (3) [respondent's] consent to the entry of an informant could not reasonably be interpreted to extend to them." Ibid.
In dissent, Judge Kelly argued that "no constitutional violation occurred in this case" because, by inviting Bartholomew into his house and participating in a narcotics transaction there, respondent had compromised the privacy of the residence and had assumed the risk that Bartholomew would reveal their dealings to the police. Id., at 903. Judge Kelly further concluded that, even if petitioners' conduct had been unlawful, they were nevertheless entitled to qualified immunity because the constitutional right at issue--"the right to be free from the warrantless entry of police officers into one's home to effectuate an arrest after one has granted voluntary, consensual entry to a confidential informant and undertaken criminal activity giving rise to probable cause"--was not "clearly established" at the time of the events in question. Id., at 903-904.
As noted, the Court of Appeals followed the Saucier procedure. The Saucier procedure has been criticized by Members of this Court and by lower court judges, who have been required to apply the procedure in a great variety of cases and thus have much firsthand experience bearing on its advantages and disadvantages. Accordingly, in granting certiorari, we directed the parties to address the question whether Saucier should be overruled. 552 U. S. ___ (2008).
II
A
The doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). Qualified immunity balances two important interests--the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Groh v. Ramirez, 540 U. S. 551, 567 (2004) (Kennedy, J., dissenting) (citing Butz v. Economou, 438 U. S. 478, 507 (1978) (noting that qualified immunity covers "mere mistakes in judgment, whether the mistake is one of fact or one of law")).
Because qualified immunity is "an immunity from suit rather than a mere defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U. S. 511, 526 (1985) (emphasis deleted). Indeed, we have made clear that the "driving force" behind creation of the qualified immunity doctrine was a desire to ensure that " 'insubstantial claims' against government officials [will] be resolved prior to discovery." Anderson v. Creighton, 483 U. S. 635, 640, n. 2 (1987). Accordingly, "we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U. S. 224, 227 (1991) (per curiam).
In Saucier, 533 U. S. 194, this Court mandated a two-step sequence for resolving government officials' qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right. 533 U. S., at 201. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was "clearly established" at the time of defendant's alleged misconduct. Ibid. Qualified immunity is applicable unless the official's conduct violated a clearly established constitutional right. Anderson, supra, at 640.
Our decisions prior to Saucier had held that "the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all." County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998). Saucier made that suggestion a mandate. For the first time, we held that whether "the facts alleged show the officer's conduct violated a constitutional right ... must be the initial inquiry" in every qualified immunity case. 533 U. S., at 20 (emphasis added). Only after completing this first step, we said, may a court turn to "the next, sequential step," namely, "whether the right was clearly established." Ibid.
This two-step procedure, the Saucier Court reasoned, is necessary to support the Constitution's "elaboration from case to case" and to prevent constitutional stagnation. Ibid. "The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case." Ibid.
B
In considering whether the Saucier procedure should be modified or abandoned, we must begin with the doctrine of stare decisis. Stare decisis "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U. S. 808, 827 (1991). Although "[w]e approach the reconsideration of [our] decisions ... with the utmost caution," "[s]tare decisis is not an inexorable command." State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) (internal quotation marks omitted). Revisiting precedent is particularly appropriate where, as here, a departure would not upset expectations, the precedent consists of a judge-made rule that was recently adopted to improve the operation of the courts, and experience has pointed up the precedent's shortcomings.
"Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases ... involving procedural and evidentiary rules" that do not produce such reliance. Payne, supra, at 828 (citations omitted). Like rules governing procedures and the admission of evidence in the trial courts, Saucier's two-step protocol does not affect the way in which parties order their affairs. Withdrawing from Saucier's categorical rule would not upset settled expectations on anyone's part. See United States v. Gaudin, 515 U. S. 506, 521 (1995).
Nor does this matter implicate "the general presumption that legislative changes should be left to Congress." Khan, supra, at 20. We recognize that "considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation." Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977). But the Saucier rule is judge made and implicates an important matter involving internal Judicial Branch operations. Any change should come from this Court, not Congress.
Respondent argues that the Saucier procedure should not be reconsidered unless we conclude that its justification was "badly reasoned" or that the rule has proved to be "unworkable," see Payne, supra, at 827, but those standards, which are appropriate when a constitutional or statutory precedent is challenged, are out of place in the present context. Because of the basis and the nature of the Saucier two-step protocol, it is sufficient that we now have a considerable body of new experience to consider regarding the consequences of requiring adherence to this inflexible procedure. This experience supports our present determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained.
Lower court judges, who have had the task of applying the Saucier rule on a regular basis for the past eight years, have not been reticent in their criticism of Saucier's "rigid order of battle." See, e.g., Purtell v. Mason, 527 F. 3d 615, 622 (CA7 2008) ("This 'rigid order of battle' has been criticized on practical, procedural, and substantive grounds"); Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U. L. Rev. 1249, 1275, 1277 (2006) (referring to Saucier's mandatory two-step framework as "a new and mischievous rule" that amounts to "a puzzling misadventure in constitutional dictum"). And application of the rule has not always been enthusiastic. See Higazy v. Templeton, 505 F. 3d 161, 179, n. 19 (CA2 2007) ("We do not reach the issue of whether [plaintiff's] Sixth Amendment rights were violated, because principles of judicial restraint caution us to avoid reaching constitutional questions when they are unnecessary to the disposition of a case"); Cherrington v. Skeeter, 344 F. 3d 631, 640 (CA6 2003) ("[I]t ultimately is unnecessary for us to decide whether the individual Defendants did or did not heed the Fourth Amendment command ... because they are entitled to qualified immunity in any event"); Pearson v. Ramos, 237 F. 3d 881, 884 (CA7 2001) ("Whether [the Saucier] rule is absolute may be doubted").
Members of this Court have also voiced criticism of the Saucier rule. See Morse v. Frederick, 551 U. S. ___, ___ (2007) (slip op., at 8) (Breyer, J., concurring in judgment in part and dissenting in part) ("I would end the failed Saucier experiment now"); Bunting v. Mellen, 541 U. S. 1019 (2004) (Stevens, J., joined by Ginsburg and Breyer, JJ., respecting denial of certiorari) (criticizing the "unwise judge-made rule under which courts must decide whether the plaintiff has alleged a constitutional violation before addressing the question whether the defendant state actor is entitled to qualified immunity"); Id., at 1025 (Scalia, J., joined by Rehnquist, C. J., dissenting from denial of certiorari) ("We should either make clear that constitutional determinations are not insulated from our review ... or else drop any pretense at requiring the ordering in every case" (emphasis in original)); Brosseau v. Haugen, 543 U. S. 194, 201-202 (2004) (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring) (urging Court to reconsider Saucier's "rigid 'order of battle,' " which "requires courts unnecessarily to decide difficult constitutional questions when there is available an easier basis for the decision (e.g., qualified immunity) that will satisfactorily resolve the case before the court"); Saucier, 533 U. S., at 210 (Ginsburg, J., concurring in judgment) ("The two-part test today's decision imposes holds large potential to confuse").
Where a decision has "been questioned by Members of the Court in later decisions and [has] defied consistent application by the lower courts," these factors weigh in favor of reconsideration. Payne, 501 U. S., at 829-830; see also Crawford v. Washington, 541 U. S. 36, 60 (2004). Collectively, the factors we have noted make our present reevaluation of the Saucier two-step protocol appropriate.
III
On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.
A
Although we now hold that the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial. For one thing, there are cases in which there would be little if any conservation of judicial resources to be had by beginning and ending with a discussion of the "clearly established" prong. "[I]t often may be difficult to decide whether a right is clearly established without deciding precisely what the constitutional right happens to be." Lyons v. Xenia, 417 F. 3d 565, 581 (CA6 2005) (Sutton, J., concurring). In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. In addition, the Saucier Court was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valu-
able with respect to questions that do not frequently
arise in cases in which a qualified immunity defense is unavailable.
B
At the same time, however, the rigid Saucier procedure comes with a price. The procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case. There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right. District courts and courts of appeals with heavy caseloads are often understandably unenthusiastic about what may seem to be an essentially academic exercise.
Unnecessary litigation of constitutional issues also wastes the parties' resources. Qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell, 472 U. S., at 526 (emphasis deleted). Saucier's two-step protocol "disserve[s] the purpose of qualified immunity" when it "forces the parties to endure additional burdens of suit--such as the costs of litigating constitutional questions and delays attributable to resolving them--when the suit otherwise could be disposed of more readily." Brief for Nat. Assn. of Criminal Defense Lawyers as Amicus Curiae 30.
Although the first prong of the Saucier procedure is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development. For one thing, there are cases in which the constitutional question is so fact-bound that the decision provides little guidance for future cases. See Scott v. Harris, 550 U. S. 372, 388 (2007) (Breyer, J., concurring) (counseling against the Saucier two-step protocol where the question is "so fact dependent that the result will be confusion rather than clarity"); Buchanan v. Maine, 469 F. 3d 158, 168 (CA1 2006) ("We do not think the law elaboration purpose will be well served here, where the Fourth Amendment inquiry involves a reasonableness question which is highly idiosyncratic and heavily dependent on the facts").
A decision on the underlying constitutional question in a §1983 damages action or a Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),1 action may have scant value when it appears that the question will soon be decided by a higher court. When presented with a constitutional question on which this Court had just granted certiorari, the Ninth Circuit elected to "bypass Saucier's first step and decide only whether [the alleged right] was clearly established." Motley v. Parks, 432 F. 3d 1072, 1078, and n. 5 (2005) (en banc). Similar considerations may come into play when a court of appeals panel confronts a constitutional question that is pending before the court en banc or when a district court encounters a constitutional question that is before the court of appeals.
A constitutional decision resting on an uncertain interpretation of state law is also of doubtful precedential importance. As a result, several courts have identified an "exception" to the Saucier rule for cases in which resolution of the constitutional question requires clarification of an ambiguous state statute. Egolf v. Witmer, 526 F. 3d 104, 109-111 (CA3 2008); accord, Tremblay v. McClellan, 350 F. 3d 195, 200 (CA1 2003); Ehrlich v. Glastonbury, 348 F. 3d 48, 57-60 (CA2 2003). Justifying the decision to grant qualified immunity to the defendant without first resolving, under Saucier's first prong, whether the defendant's conduct violated the Constitution, these courts have observed that Saucier's "underlying principle" of encouraging federal courts to decide unclear legal questions in order to clarify the law for the future "is not meaningfully advanced ... when the definition of constitutional rights depends on a federal court's uncertain assumptions about state law." Egolf, supra, at 110; accord, Tremblay, supra, at 200; Ehrlich, supra, at 58.
When qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff's claim or claims may be hard to identify. See Lyons, supra, at 582 (Sutton, J., concurring); Kwai Fun Wong v. United States, 373 F. 3d 952, 957 (CA9 2004); Mollica v. Volker, 229 F. 3d 366, 374 (CA2 2000). Accordingly, several courts have recognized that the two-step inquiry "is an uncomfortable exercise where ... the answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet fully developed" and have suggested that "[i]t may be that Saucier was not strictly intended to cover" this situation. Dirrane v. Brookline Police Dept., 315 F. 3d 65, 69-70 (CA1 2002); see also Robinette v. Jones, 476 F. 3d 585, 592, n. 8 (CA8 2007) (declining to follow Saucier because "the parties have provided very few facts to define and limit any holding" on the constitutional question).
There are circumstances in which the first step of the Saucier procedure may create a risk of bad decisionmaking. The lower courts sometimes encounter cases in which the briefing of constitutional questions is woefully inadequate. See Lyons, 417 F. 3d, at 582 (Sutton, J., concurring) (noting the "risk that constitutional questions may be prematurely and incorrectly decided in cases where they are not well presented"); Mollica, supra, at 374.
Although the Saucier rule prescribes the sequence in which the issues must be discussed by a court in its opinion, the rule does not--and obviously cannot--specify the sequence in which judges reach their conclusions in their own internal thought processes. Thus, there will be cases in which a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all. In such situations, there is a risk that a court may not devote as much care as it would in other circumstances to the decision of the constitutional issue. See Horne v. Coughlin, 191 F. 3d, 244, 247 (CA2 1999) ("Judges risk being insufficiently thoughtful and cautious in uttering pronouncements that play no role in their adjudication"); Leval 1278-1279.
Rigid adherence to the Saucier rule may make it hard for affected parties to obtain appellate review of constitutional decisions that may have a serious prospective effect on their operations. Where a court holds that a defendant committed a constitutional violation but that the violation was not clearly established, the defendant may face a difficult situation. As the winning party, the defendant's right to appeal the adverse holding on the constitutional question may be contested. See Bunting, 541 U. S., at 1025 (Scalia, J., dissenting from denial of certiorari) ("The perception of unreviewability undermines adherence to the sequencing rule we . . . created" in Saucier);2 see also Kalka v. Hawk, 215 F. 3d 90, 96, n. 9 (CADC 2000) (noting that "[n]ormally, a party may not appeal from a favorable judgment" and that the Supreme Court "has apparently never granted the certiorari petition of a party who prevailed in the appellate court"). In cases like Bunting, the "prevailing" defendant faces an unenviable choice: "compl[y] with the lower court's advisory dictum without opportunity to seek appellate [or certiorari] review," or "def[y] the views of the lower court, adher[e] to practices that have been declared illegal, and thus invit[e] new suits" and potential "punitive damages." Horne, supra, at 247-248.
Adherence to Saucier's two-step protocol departs from the general rule of constitutional avoidance and runs counter to the "older, wiser judicial counsel 'not to pass on questions of constitutionality ... unless such adjudication is unavoidable.' " Scott, 550 U. S., at 388 (Breyer, J., concurring) (quoting Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944)); see Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) ("The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of ").
In other analogous contexts, we have appropriately declined to mandate the order of decision that the lower courts must follow. For example, in Strickland v. Washington, 466 U. S. 668 (1984), we recognized a two-part test for determining whether a criminal defendant was denied the effective assistance of counsel: The defendant must demonstrate (1) that his counsel's performance fell below what could be expected of a reasonably competent practitioner; and (2) that he was prejudiced by that substandard performance. Id., at 687. After setting forth and applying the analytical framework that courts must use in evaluating claims of ineffective assistance of counsel, we left it to the sound discretion of lower courts to determine the order of decision. Id., at 697 ("Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one").
In United States v. Leon, 468 U. S. 897 (1984), we created an exception to the exclusionary rule when officers reasonably rely on a facially valid search warrant. Id., at 913. In that context, we recognized that a defendant challenging a search will lose if either: (1) the warrant issued was supported by probable cause; or (2) it was not, but the officers executing it reasonably believed that it was. Again, after setting forth and applying the analytical framework that courts must use in evaluating the good-faith exception to the Fourth Amendment warrant requirement, we left it to the sound discretion of the lower courts to determine the order of decision. Id., at 924, 925 ("There is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated").
This flexibility properly reflects our respect for the lower federal courts that bear the brunt of adjudicating these cases. Because the two-step Saucier procedure is often, but not always, advantageous, the judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking will best facilitate the fair and efficient disposition of each case.
C
Any misgivings concerning our decision to withdraw from the mandate set forth in Saucier are unwarranted. Our decision does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, the development of constitutional law is by no means entirely dependent on cases in which the defendant may seek qualified immunity. Most of the constitutional issues that are presented in §1983 damages actions and Bivens cases also arise in cases in which that defense is not available, such as criminal cases and §1983 cases against a municipality, as well as §1983 cases against individuals where injunctive relief is sought instead of or in addition to damages. See Lewis, 523 U. S., at 841, n. 5 (noting that qualified immunity is unavailable "in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion").
We also do not think that relaxation of Saucier's mandate is likely to result in a proliferation of damages claims against local governments. Compare Brief for Nat. Assn. of Counties et al., as Amici Curiae 29, 30 ("[T]o the extent that a rule permitting courts to bypass the merits makes it more difficult for civil rights plaintiffs to pursue novel claims, they will have greater reason to press custom, policy, or practice [damages] claims against local governments"). It is hard to see how the Saucier procedure could have a significant effect on a civil rights plaintiff's decision whether to seek damages only from a municipal employee or also from the municipality. Whether the Saucier procedure is mandatory or discretionary, the plaintiff will presumably take into account the possibility that the individual defendant will be held to have qualified immunity, and presumably the plaintiff will seek damages from the municipality as well as the individual employee if the benefits of doing so (any increase in the likelihood of recovery or collection of damages) outweigh the litigation costs.
Nor do we think that allowing the lower courts to exercise their discretion with respect to the Saucier procedure will spawn "a new cottage industry of litigation ... over the standards for deciding whether to reach the merits in a given case." Brief for Nat. Assn. of Counties et al. as Amici Curiae 29, 30. It does not appear that such a "cottage industry" developed prior to Saucier, and we see no reason why our decision today should produce such a result.
IV
Turning to the conduct of the officers here, we hold that petitioners are entitled to qualified immunity because the entry did not violate clearly established law. An officer conducting a search is entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment. See Anderson, 483 U. S., at 641. This inquiry turns on the "objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." Wilson v. Layne, 526 U. S. 603, 614 (1999) (internal quotation marks omitted); see Hope v. Pelzer, 536 U. S. 730, 739 (2002) ("[Q]ualified immunity operates to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful" (internal quotation marks omitted)).
When the entry at issue here occurred in 2002, the "consent-once-removed" doctrine had gained acceptance in the lower courts. This doctrine had been considered by three Federal Courts of Appeals and two State Supreme Courts starting in the early 1980's. See, e.g., United States v. Diaz, 814 F. 2d 454, 459 (CA7), cert. denied, 484 U. S. 857 (1987); United States v. Bramble, 103 F. 3d 1475 (CA9 1996); United States v. Pollard, 215 F. 3d 643, 648-649 (CA6), cert. denied, 531 U. S. 999 (2000); State v. Henry, 133 N. J. 104, 627 A. 2d 125 (1993); State v. Johnston, 184 Wis. 2d 794, 518 N. W. 2d 759 (1994). It had been accepted by every one of those courts. Moreover, the Seventh Circuit had approved the doctrine's application to cases involving consensual entries by private citizens acting as confidential informants. See United States v. Paul, 808 F. 2d, 645, 648 (1986). The Sixth Circuit reached the same conclusion after the events that gave rise to respondent's suit, see United States v. Yoon, 398 F. 3d 802, 806-808, cert. denied, 546 U. S. 977 (2005), and prior to the Tenth Circuit's decision in the present case, no court of appeals had issued a contrary decision.
The officers here were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on "consent-once-removed" entries. The principles of qualified immunity shield an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law. Police officers are entitled to rely on existing lower court cases without facing personal liability for their actions. In Wilson, we explained that a Circuit split on the relevant issue had developed after the events that gave rise to suit and concluded that "[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy." 526 U. S., at 618. Likewise, here, where the divergence of views on the consent-once-removed doctrine was created by the decision of the Court of Appeals in this case, it is improper to subject petitioners to money damages for their conduct.
Because the unlawfulness of the officers' conduct in this case was not clearly established, petitioners are entitled to qualified immunity. We therefore reverse the judgment of the Court of Appeals.
It is so ordered.
________________________________________
FOOTNOTES
Footnote 1
See Harlow v. Fitzgerald, 457 U. S. 800, 818, and n. 30 (1982) (noting that the Court's decisions equate the qualified immunity of state officials sued under 42 U. S. C. §1983 with the immunity of federal officers sued directly under the Constitution).
Footnote 2
In Bunting, the Court of Appeals followed the Saucier two-step protocol and first held that the Virginia Military Institute's use of the word "God" in a "supper roll call" ceremony violated the Establishment Clause, but then granted the defendants qualified immunity because the law was not clearly established at the relevant time. Mellen v. Bunting, 327 F. 3d 355, 365-376 (CA4 2003), cert. denied, 541 U. S. 1019 (2004). Although they had a judgment in their favor below, the defendants asked this Court to review the adverse constitutional ruling. Dissenting from the denial of certiorari, Justice Scalia, joined by Chief Justice Rehnquist, criticized "a perceived procedural tangle of the Court's own making." 541 U. S., at 1022. The "tangle" arose from the Court's " 'settled refusal' to entertain an appeal by a party on an issue as to which he prevailed" below, a practice that insulates from review adverse merits decisions that are "locked inside" favorable qualified immunity rulings. Id., at 1023, 1024.
•
•
Fees
In the case of TRADERS ROYAL BANK EMPLOYEES UNION-INDEPENDENT vs. NATIONAL LABOR RELATIONS COMMISSION and EMMANUEL NOEL A. CRUZ, G.R. No. 120592, March 14, 1997, the Philippine Supreme Court the two concepts of attorney’s fees (ordinary and extraordinary) in relation to the law on damages in the Civil Code and the provisions of the Labor Code.
I wish to digest the said case below, for legal research purposes of the visitors of this blog. Thus:
X x x.
There are two commonly accepted concepts of attorney’s fees, the so-called ordinary and extraordinary. In its ordinary concept, an attorney’s fee is the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter. The basis of this compensation is the fact of his employment by and his agreement with the client.
In its extraordinary concept, an attorney’s fee is an indemnity for damages ordered by the court to be paid by the losing party in a litigation. The basis of this is any of the cases provided by law where such award can be made, such as those authorized in Article 2208, Civil Code, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.
X x x.
With respect to the first situation, the remedy for recovering attorney’s fees as an incident of the main action may be availed of only when something is due to the client. Attorney’s fees cannot be determined until after the main litigation has been decided and the subject of the recovery is at the disposition of the court.
The issue over attorney’s fees only arises when something has been recovered from which the fee is to be paid.
While a claim for attorney’s fees may be filed before the judgment is rendered, the determination as to the propriety of the fees or as to the amount thereof will have to be held in abeyance until the main case from which the lawyer’s claim for attorney’s fees may arise has become final. Otherwise, the determination to be made by the courts will be premature. Of course, a petition for attorney’s fees may be filed before the judgment in favor of the client is satisfied or the proceeds thereof delivered to the client.
It is apparent from the foregoing discussion that a lawyer has two options as to when to file his claim for professional fees. Hence, private respondent was well within his rights when he made his claim and waited for the finality of the judgment for holiday pay differential, instead of filing it ahead of the award’s complete resolution. To declare that a lawyer may file a claim for fees in the same action only before the judgment is reviewed by a higher tribunal would deprive him of his aforestated options and render ineffective the foregoing pronouncements of this Court.
X x x.
It is elementary that an attorney is entitled to have and receive a just and reasonable compensation for services performed at the special instance and request of his client. As long as the lawyer was in good faith and honestly trying to represent and serve the interests of the client, he should have a reasonable compensation for such services. It will thus be appropriate, at this juncture, to determine if private respondent is entitled to an additional remuneration under the retainer agreement entered into by him and petitioner.
X x x.
The provisions of the above contract are clear and need no further interpretation; all that is required to be done in the instant controversy is its application. The P3,000.00 which petitioner pays monthly to private respondent does not cover the services the latter actually rendered before the labor arbiter and the NLRC in behalf of the former. As stipulated in Part C of the agreement, the monthly fee is intended merely as a consideration for the law firm’s commitment to render the services enumerated in Part A (General Services) and Part B (Special Legal Services) of the retainer agreement.
The difference between a compensation for a commitment to render legal services and a remuneration for legal services actually rendered can better be appreciated with a discussion of the two kinds of retainer fees a client may pay his lawyer. These are a general retainer, or a retaining fee, and a special retainer.
A general retainer, or retaining fee, is the fee paid to a lawyer to secure his future services as general counsel for any ordinary legal problem that may arise in the routinary business of the client and referred to him for legal action. The future services of the lawyer are secured and committed to the retaining client. For this, the client pays the lawyer a fixed retainer fee which could be monthly or otherwise, depending upon their arrangement. The fees are paid whether or not there are cases referred to the lawyer. The reason for the remuneration is that the lawyer is deprived of the opportunity of rendering services for a fee to the opposing party or other parties. In fine, it is a compensation for lost opportunities.
A special retainer is a fee for a specific case handled or special service rendered by the lawyer for a client. A client may have several cases demanding special or individual attention. If for every case there is a separate and independent contract for attorney’s fees, each fee is considered a special retainer.
As to the first kind of fee, the Court has had the occasion to expound on its concept in Hilado vs. David, 84 Phil. 579 (1949), citing 7 C.J.S. 1019, in this wise:
There is in legal practice what is called a “retaining fee,” the purpose of which stems from the realization that the attorney is disabled from acting as counsel for the other side after he has given professional advice to the opposite party, even if he should decline to perform the contemplated services on behalf of the latter. It is to prevent undue hardship on the attorney resulting from the rigid observance of the rule that a separate and independent fee for consultation and advice was conceived and authorized. “A retaining fee is a preliminary fee given to an attorney or counsel to insure and secure his future services, and induce him to act for the client. It is intended to remunerate counsel for being deprived, by being retained by one party, of the opportunity of rendering services to the other and of receiving pay from him, and the payment of such fee, in the absence of an express understanding to the contrary, is neither made nor received in payment of the services contemplated; its payment has no relation to the obligation of the client to pay his attorney for the services for which he has retained him to perform.” (Emphasis supplied).
Evidently, the P3,000.00 monthly fee provided in the retainer agreement between the union and the law firm refers to a general retainer, or a retaining fee, as said monthly fee covers only the law firm’s pledge, or as expressly stated therein, its “commitment to render the legal services enumerated.” The fee is not payment for private respondent’s execution or performance of the services listed in the contract, subject to some particular qualifications or permutations stated there.
X x x.
We have already shown that the P3,000.00 is independent and different from the compensation which private respondent should receive in payment for his services. While petitioner and private respondent were able to fix a fee for the latter’s promise to extend services, they were not able to come into agreement as to the law firm’s actual performance of services in favor of the union. Hence, the retainer agreement cannot control the measure of remuneration for private respondent’s services.
We, therefore, cannot favorably consider the suggestion of petitioner that private respondent had already waived his right to charge additional fees because of their failure to come to an agreement as to its payment.
Firstly, there is no showing that private respondent unequivocally opted to waive the additional charges in consonance with Part D of the agreement. Secondly, the prompt actions taken by private respondent, i.e., serving notice of charging lien and filing of motion to determine attorney’s fees, belie any intention on his part to renounce his right to compensation for prosecuting the labor case instituted by the union. And, lastly, to adopt such theory of petitioner may frustrate private respondent’s right to attorney’s fees, as the former may simply and unreasonably refuse to enter into any special agreement with the latter and conveniently claim later that the law firm had relinquished its right because of the absence of the same.
The fact that petitioner and private respondent failed to reach a meeting of the minds with regard to the payment of professional fees for special services will not absolve the former of civil liability for the corresponding remuneration therefor in favor of the latter.
Obligations do not emanate only from contracts. One of the sources of extra-contractual obligations found in our Civil Code is the quasi-contract premised on the Roman maxim that nemo cum alterius detrimento locupletari protest. As embodied in our law, certain lawful, voluntary and unilateral acts give rise to the juridical relation of quasi-contract to the end that no one shall be unjustly enriched or benefited at the expense of another. (Articles 1157 and 2142, Civil Code).
A quasi-contract between the parties in the case at bar arose from private respondent’s lawful, voluntary and unilateral prosecution of petitioner’s cause without awaiting the latter’s consent and approval. Petitioner cannot deny that it did benefit from private respondent’s efforts as the law firm was able to obtain an award of holiday pay differential in favor of the union. It cannot even hide behind the cloak of the monthly retainer of P3,000.00 paid to private respondent because, as demonstrated earlier, private respondent’s actual rendition of legal services is not compensable merely by said amount.
Private respondent is entitled to an additional remuneration for pursuing legal action in the interest of petitioner before the labor arbiter and the NLRC, on top of the P3,000.00 retainer fee he received monthly from petitioner. The law firm’s services are decidedly worth more than such basic fee in the retainer agreement. Thus, in Part C thereof on “Fee Structure,” it is even provided that all attorney’s fees collected from the adverse party by virtue of a successful litigation shall belong exclusively to private respondent, aside from petitioner’s liability for appearance fees and reimbursement of the items of costs and expenses enumerated therein.
A quasi-contract is based on the presumed will or intent of the obligor dictated by equity and by the principles of absolute justice. Some of these principles are: (1) It is presumed that a person agrees to that which will benefit him; (2) Nobody wants to enrich himself unjustly at the expense of another; and (3) We must do unto others what we want them to do unto us under the same circumstances. (See: Tolentino, A.M., Commentaries and Jurisprudence on the Civil Code, Vol. V, 1992 ed., 575).
As early as 1903, we allowed the payment of reasonable professional fees to an interpreter, notwithstanding the lack of understanding with his client as to his remuneration, on the basis of quasi-contract. Hence, it is not necessary that the parties agree on a definite fee for the special services rendered by private respondent in order that petitioner may be obligated to pay compensation to the former. Equity and fair play dictate that petitioner should pay the same after it accepted, availed itself of, and benefited from private respondent’s services. [See Perez vs. Pomar, 2 Phil. 682 (1903)].
We are not unaware of the old ruling that a person who had no knowledge of, nor consented to, or protested against the lawyer’s representation may not be held liable for attorney’s fees even though he benefited from the lawyer’s services. But this doctrine may not be applied in the present case as petitioner did not object to private respondent’s appearance before the NLRC in the case for differentials. [Orosco vs. Heirs of Hernandez, 1 Phil. 77 (1901)].
Viewed from another aspect, since it is claimed that petitioner obtained respondent’s legal services and assistance regarding its claims against the bank, only they did not enter into a special contract regarding the compensation therefor, there is at least the innominate contract of facio ut des (I do that you may give). This rule of law, likewise founded on the principle against unjust enrichment, would also warrant payment for the services of private respondent which proved beneficial to petitioner’s members. (Corpuz vs. Court of Appeals, et al., G.R. No. L-40424, June 30, 1980, 98 SCRA 424).
In any case, whether there is an agreement or not, the courts can fix a reasonable compensation which lawyers should receive for their professional services. [See: Panis vs. Yangco, 52 Phil. 499 (1928)]. However, the value of private respondent’s legal services should not be established on the basis of Article 111 of the Labor Code alone. Said article provides:
ART. 111. Attorney’s fees. - (a) In cases of unlawful withholding of wages the culpable party may be assessed attorney’s fees equivalent to ten percent of the amount of the wages recovered.
x x x
The implementing provision of the foregoing article further states:
Sec. 11. Attorney’s fees. - Attorney’s fees in any judicial or administrative proceedings for the recovery of wages shall not exceed 10% of the amount awarded. The fees may be deducted from the total amount due the winning party.
(See: Sec. 11, Rule VIII, Book III of the Omnibus Rules Implementing the Labor Code).
In the first place, the fees mentioned here are the extraordinary attorney’s fees recoverable as indemnity for damages sustained by and payable to the prevailing part. In the second place, the ten percent (10%) attorney’s fees provided for in Article 111 of the Labor Code and Section 11, Rule VIII, Book III of the Implementing Rules is the maximum of the award that may thus be granted.
(Sebuguero, et al. vs. NLRC, et al., G.R. No. 115394, September 27, 1995, 248 SCRA 532). Article 111 thus fixes only the limit on the amount of attorney’s fees the victorious party may recover in any judicial or administrative proceedings and it does not even prevent the NLRC from fixing an amount lower than the ten percent (10%) ceiling prescribed by the article when circumstances warrant it. [Taganas vs. NLRC, et al., G.R. No. 118746, September 7, 1995, 248 SCRA 133].
The measure of compensation for private respondent’s services as against his client should properly be addressed by the rule of quantum meruit long adopted in this jurisdiction. Quantum meruit, meaning “as much as he deserves,” is used as the basis for determining the lawyer’s professional fees in the absence of a contract, but recoverable by him from his client. [Sesbreño vs. Court of Appeals, et al., G.R. No. 117438, June 8, 1995, 245 SCRA 30].
Where a lawyer is employed without a price for his services being agreed upon, the courts shall fix the amount on quantum meruit basis. In such a case, he would be entitled to receive what he merits for his services. [Lorenzo vs. Court of Appeals, et al., G.R. No. 85383, August 30, 1990, 189 SCRA 260].
It is essential for the proper operation of the principle that there is an acceptance of the benefits by one sought to be charged for the services rendered under circumstances as reasonably to notify him that the lawyer performing the task was expecting to be paid compensation therefor. The doctrine of quantum meruit is a device to prevent undue enrichment based on the equitable postulate that it is unjust for a person to retain benefit without paying for it. [Agpalo, R.E., The Code of Professional Responsibility for Lawyers, 1991 ed., 257]..
Over the years and through numerous decisions, this Court has laid down guidelines in ascertaining the real worth of a lawyer’s services. These factors are now codified in Rule 20.01, Canon 20 of the Code of Professional Responsibility and should be considered in fixing a reasonable compensation for services rendered by a lawyer on the basis of quantum meruit. These are: (a) the time spent and the extent of services rendered or required; (b) the novelty and difficulty of the questions involved; (c) the importance of the subject matter; (d) the skill demanded; (e) the probability of losing other employment as a result of acceptance of the proffered case; (f) the customary charges for similar services and the schedule of fees of the IBP chapter to which the lawyer belongs; (g) the amount involved in the controversy and the benefits resulting to the client from the services; (h) the contingency or certainty of compensation; (i) the character of the employment, whether occasional or established; and (j) the professional standing of the lawyer.
Here, then, is the flaw we find in the award for attorney’s fees in favor of private respondent. Instead of adopting the above guidelines, the labor arbiter forthwith but erroneously set the amount of attorney’s fees on the basis of Article 111 of the Labor Code. He completely relied on the operation of Article 111 when he fixed the amount of attorney’s fees at P17,574.43. Observe the conclusion stated in his order.
x x x
FIRST. Art. 111 of the Labor Code, as amended, clearly declares movant’s right to a ten (10%) per cent of the award due its client. In addition, this right to ten (10%) per cent attorney’s fees is supplemented by Sec. 111, Rule VIII, Book III of the Omnibus Rules Implementing the Labor Code, as amended.
x x x
As already stated, Article 111 of the Labor Code regulates the amount recoverable as attorney’s fees in the nature of damages sustained by and awarded to the prevailing party. It may not be used therefore, as the lone standard in fixing the exact amount payable to the lawyer by his client for the legal services he rendered. Also, while it limits the maximum allowable amount of attorney’s fees, it does not direct the instantaneous and automatic award of attorney’s fees in such maximum limit.
It, therefore, behooves the adjudicator in questions and circumstances similar to those in the case at bar, involving a conflict between lawyer and client, to observe the above guidelines in cases calling for the operation of the principles of quasi-contract and quantum meruit, and to conduct a hearing for the proper determination of attorney’s fees. The criteria found in the Code of Professional Responsibility are to be considered, and not disregarded, in assessing the proper amount. Here, the records do not reveal that the parties were duly heard by the labor arbiter on the matter and for the resolution of private respondent’s fees.
It is axiomatic that the reasonableness of attorney’s fees is a question of fact. [Gonzales vs. National Housing Corporation, G.R. No. 50092, December 18, 1979, 94 SCRA 786]. Ordinarily, therefore, we would have remanded this case for further reception of evidence as to the extent and value of the services rendered by private respondent to petitioner. However, so as not to needlessly prolong the resolution of a comparatively simple controversy, we deem it just and equitable to fix in the present recourse a reasonable amount of attorney’s fees in favor of private respondent. For that purpose, we have duly taken into account the accepted guidelines therefor and so much of the pertinent data as are extant in the records of this case which are assistive in that regard. On such premises and in the exercise of our sound discretion, we hold that the amount of P10,000.00 is a reasonable and fair compensation for the legal services rendered by private respondent to petitioner before the labor arbiter and the NLRC.
X x x.
I wish to digest the said case below, for legal research purposes of the visitors of this blog. Thus:
X x x.
There are two commonly accepted concepts of attorney’s fees, the so-called ordinary and extraordinary. In its ordinary concept, an attorney’s fee is the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter. The basis of this compensation is the fact of his employment by and his agreement with the client.
In its extraordinary concept, an attorney’s fee is an indemnity for damages ordered by the court to be paid by the losing party in a litigation. The basis of this is any of the cases provided by law where such award can be made, such as those authorized in Article 2208, Civil Code, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.
X x x.
With respect to the first situation, the remedy for recovering attorney’s fees as an incident of the main action may be availed of only when something is due to the client. Attorney’s fees cannot be determined until after the main litigation has been decided and the subject of the recovery is at the disposition of the court.
The issue over attorney’s fees only arises when something has been recovered from which the fee is to be paid.
While a claim for attorney’s fees may be filed before the judgment is rendered, the determination as to the propriety of the fees or as to the amount thereof will have to be held in abeyance until the main case from which the lawyer’s claim for attorney’s fees may arise has become final. Otherwise, the determination to be made by the courts will be premature. Of course, a petition for attorney’s fees may be filed before the judgment in favor of the client is satisfied or the proceeds thereof delivered to the client.
It is apparent from the foregoing discussion that a lawyer has two options as to when to file his claim for professional fees. Hence, private respondent was well within his rights when he made his claim and waited for the finality of the judgment for holiday pay differential, instead of filing it ahead of the award’s complete resolution. To declare that a lawyer may file a claim for fees in the same action only before the judgment is reviewed by a higher tribunal would deprive him of his aforestated options and render ineffective the foregoing pronouncements of this Court.
X x x.
It is elementary that an attorney is entitled to have and receive a just and reasonable compensation for services performed at the special instance and request of his client. As long as the lawyer was in good faith and honestly trying to represent and serve the interests of the client, he should have a reasonable compensation for such services. It will thus be appropriate, at this juncture, to determine if private respondent is entitled to an additional remuneration under the retainer agreement entered into by him and petitioner.
X x x.
The provisions of the above contract are clear and need no further interpretation; all that is required to be done in the instant controversy is its application. The P3,000.00 which petitioner pays monthly to private respondent does not cover the services the latter actually rendered before the labor arbiter and the NLRC in behalf of the former. As stipulated in Part C of the agreement, the monthly fee is intended merely as a consideration for the law firm’s commitment to render the services enumerated in Part A (General Services) and Part B (Special Legal Services) of the retainer agreement.
The difference between a compensation for a commitment to render legal services and a remuneration for legal services actually rendered can better be appreciated with a discussion of the two kinds of retainer fees a client may pay his lawyer. These are a general retainer, or a retaining fee, and a special retainer.
A general retainer, or retaining fee, is the fee paid to a lawyer to secure his future services as general counsel for any ordinary legal problem that may arise in the routinary business of the client and referred to him for legal action. The future services of the lawyer are secured and committed to the retaining client. For this, the client pays the lawyer a fixed retainer fee which could be monthly or otherwise, depending upon their arrangement. The fees are paid whether or not there are cases referred to the lawyer. The reason for the remuneration is that the lawyer is deprived of the opportunity of rendering services for a fee to the opposing party or other parties. In fine, it is a compensation for lost opportunities.
A special retainer is a fee for a specific case handled or special service rendered by the lawyer for a client. A client may have several cases demanding special or individual attention. If for every case there is a separate and independent contract for attorney’s fees, each fee is considered a special retainer.
As to the first kind of fee, the Court has had the occasion to expound on its concept in Hilado vs. David, 84 Phil. 579 (1949), citing 7 C.J.S. 1019, in this wise:
There is in legal practice what is called a “retaining fee,” the purpose of which stems from the realization that the attorney is disabled from acting as counsel for the other side after he has given professional advice to the opposite party, even if he should decline to perform the contemplated services on behalf of the latter. It is to prevent undue hardship on the attorney resulting from the rigid observance of the rule that a separate and independent fee for consultation and advice was conceived and authorized. “A retaining fee is a preliminary fee given to an attorney or counsel to insure and secure his future services, and induce him to act for the client. It is intended to remunerate counsel for being deprived, by being retained by one party, of the opportunity of rendering services to the other and of receiving pay from him, and the payment of such fee, in the absence of an express understanding to the contrary, is neither made nor received in payment of the services contemplated; its payment has no relation to the obligation of the client to pay his attorney for the services for which he has retained him to perform.” (Emphasis supplied).
Evidently, the P3,000.00 monthly fee provided in the retainer agreement between the union and the law firm refers to a general retainer, or a retaining fee, as said monthly fee covers only the law firm’s pledge, or as expressly stated therein, its “commitment to render the legal services enumerated.” The fee is not payment for private respondent’s execution or performance of the services listed in the contract, subject to some particular qualifications or permutations stated there.
X x x.
We have already shown that the P3,000.00 is independent and different from the compensation which private respondent should receive in payment for his services. While petitioner and private respondent were able to fix a fee for the latter’s promise to extend services, they were not able to come into agreement as to the law firm’s actual performance of services in favor of the union. Hence, the retainer agreement cannot control the measure of remuneration for private respondent’s services.
We, therefore, cannot favorably consider the suggestion of petitioner that private respondent had already waived his right to charge additional fees because of their failure to come to an agreement as to its payment.
Firstly, there is no showing that private respondent unequivocally opted to waive the additional charges in consonance with Part D of the agreement. Secondly, the prompt actions taken by private respondent, i.e., serving notice of charging lien and filing of motion to determine attorney’s fees, belie any intention on his part to renounce his right to compensation for prosecuting the labor case instituted by the union. And, lastly, to adopt such theory of petitioner may frustrate private respondent’s right to attorney’s fees, as the former may simply and unreasonably refuse to enter into any special agreement with the latter and conveniently claim later that the law firm had relinquished its right because of the absence of the same.
The fact that petitioner and private respondent failed to reach a meeting of the minds with regard to the payment of professional fees for special services will not absolve the former of civil liability for the corresponding remuneration therefor in favor of the latter.
Obligations do not emanate only from contracts. One of the sources of extra-contractual obligations found in our Civil Code is the quasi-contract premised on the Roman maxim that nemo cum alterius detrimento locupletari protest. As embodied in our law, certain lawful, voluntary and unilateral acts give rise to the juridical relation of quasi-contract to the end that no one shall be unjustly enriched or benefited at the expense of another. (Articles 1157 and 2142, Civil Code).
A quasi-contract between the parties in the case at bar arose from private respondent’s lawful, voluntary and unilateral prosecution of petitioner’s cause without awaiting the latter’s consent and approval. Petitioner cannot deny that it did benefit from private respondent’s efforts as the law firm was able to obtain an award of holiday pay differential in favor of the union. It cannot even hide behind the cloak of the monthly retainer of P3,000.00 paid to private respondent because, as demonstrated earlier, private respondent’s actual rendition of legal services is not compensable merely by said amount.
Private respondent is entitled to an additional remuneration for pursuing legal action in the interest of petitioner before the labor arbiter and the NLRC, on top of the P3,000.00 retainer fee he received monthly from petitioner. The law firm’s services are decidedly worth more than such basic fee in the retainer agreement. Thus, in Part C thereof on “Fee Structure,” it is even provided that all attorney’s fees collected from the adverse party by virtue of a successful litigation shall belong exclusively to private respondent, aside from petitioner’s liability for appearance fees and reimbursement of the items of costs and expenses enumerated therein.
A quasi-contract is based on the presumed will or intent of the obligor dictated by equity and by the principles of absolute justice. Some of these principles are: (1) It is presumed that a person agrees to that which will benefit him; (2) Nobody wants to enrich himself unjustly at the expense of another; and (3) We must do unto others what we want them to do unto us under the same circumstances. (See: Tolentino, A.M., Commentaries and Jurisprudence on the Civil Code, Vol. V, 1992 ed., 575).
As early as 1903, we allowed the payment of reasonable professional fees to an interpreter, notwithstanding the lack of understanding with his client as to his remuneration, on the basis of quasi-contract. Hence, it is not necessary that the parties agree on a definite fee for the special services rendered by private respondent in order that petitioner may be obligated to pay compensation to the former. Equity and fair play dictate that petitioner should pay the same after it accepted, availed itself of, and benefited from private respondent’s services. [See Perez vs. Pomar, 2 Phil. 682 (1903)].
We are not unaware of the old ruling that a person who had no knowledge of, nor consented to, or protested against the lawyer’s representation may not be held liable for attorney’s fees even though he benefited from the lawyer’s services. But this doctrine may not be applied in the present case as petitioner did not object to private respondent’s appearance before the NLRC in the case for differentials. [Orosco vs. Heirs of Hernandez, 1 Phil. 77 (1901)].
Viewed from another aspect, since it is claimed that petitioner obtained respondent’s legal services and assistance regarding its claims against the bank, only they did not enter into a special contract regarding the compensation therefor, there is at least the innominate contract of facio ut des (I do that you may give). This rule of law, likewise founded on the principle against unjust enrichment, would also warrant payment for the services of private respondent which proved beneficial to petitioner’s members. (Corpuz vs. Court of Appeals, et al., G.R. No. L-40424, June 30, 1980, 98 SCRA 424).
In any case, whether there is an agreement or not, the courts can fix a reasonable compensation which lawyers should receive for their professional services. [See: Panis vs. Yangco, 52 Phil. 499 (1928)]. However, the value of private respondent’s legal services should not be established on the basis of Article 111 of the Labor Code alone. Said article provides:
ART. 111. Attorney’s fees. - (a) In cases of unlawful withholding of wages the culpable party may be assessed attorney’s fees equivalent to ten percent of the amount of the wages recovered.
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The implementing provision of the foregoing article further states:
Sec. 11. Attorney’s fees. - Attorney’s fees in any judicial or administrative proceedings for the recovery of wages shall not exceed 10% of the amount awarded. The fees may be deducted from the total amount due the winning party.
(See: Sec. 11, Rule VIII, Book III of the Omnibus Rules Implementing the Labor Code).
In the first place, the fees mentioned here are the extraordinary attorney’s fees recoverable as indemnity for damages sustained by and payable to the prevailing part. In the second place, the ten percent (10%) attorney’s fees provided for in Article 111 of the Labor Code and Section 11, Rule VIII, Book III of the Implementing Rules is the maximum of the award that may thus be granted.
(Sebuguero, et al. vs. NLRC, et al., G.R. No. 115394, September 27, 1995, 248 SCRA 532). Article 111 thus fixes only the limit on the amount of attorney’s fees the victorious party may recover in any judicial or administrative proceedings and it does not even prevent the NLRC from fixing an amount lower than the ten percent (10%) ceiling prescribed by the article when circumstances warrant it. [Taganas vs. NLRC, et al., G.R. No. 118746, September 7, 1995, 248 SCRA 133].
The measure of compensation for private respondent’s services as against his client should properly be addressed by the rule of quantum meruit long adopted in this jurisdiction. Quantum meruit, meaning “as much as he deserves,” is used as the basis for determining the lawyer’s professional fees in the absence of a contract, but recoverable by him from his client. [Sesbreño vs. Court of Appeals, et al., G.R. No. 117438, June 8, 1995, 245 SCRA 30].
Where a lawyer is employed without a price for his services being agreed upon, the courts shall fix the amount on quantum meruit basis. In such a case, he would be entitled to receive what he merits for his services. [Lorenzo vs. Court of Appeals, et al., G.R. No. 85383, August 30, 1990, 189 SCRA 260].
It is essential for the proper operation of the principle that there is an acceptance of the benefits by one sought to be charged for the services rendered under circumstances as reasonably to notify him that the lawyer performing the task was expecting to be paid compensation therefor. The doctrine of quantum meruit is a device to prevent undue enrichment based on the equitable postulate that it is unjust for a person to retain benefit without paying for it. [Agpalo, R.E., The Code of Professional Responsibility for Lawyers, 1991 ed., 257]..
Over the years and through numerous decisions, this Court has laid down guidelines in ascertaining the real worth of a lawyer’s services. These factors are now codified in Rule 20.01, Canon 20 of the Code of Professional Responsibility and should be considered in fixing a reasonable compensation for services rendered by a lawyer on the basis of quantum meruit. These are: (a) the time spent and the extent of services rendered or required; (b) the novelty and difficulty of the questions involved; (c) the importance of the subject matter; (d) the skill demanded; (e) the probability of losing other employment as a result of acceptance of the proffered case; (f) the customary charges for similar services and the schedule of fees of the IBP chapter to which the lawyer belongs; (g) the amount involved in the controversy and the benefits resulting to the client from the services; (h) the contingency or certainty of compensation; (i) the character of the employment, whether occasional or established; and (j) the professional standing of the lawyer.
Here, then, is the flaw we find in the award for attorney’s fees in favor of private respondent. Instead of adopting the above guidelines, the labor arbiter forthwith but erroneously set the amount of attorney’s fees on the basis of Article 111 of the Labor Code. He completely relied on the operation of Article 111 when he fixed the amount of attorney’s fees at P17,574.43. Observe the conclusion stated in his order.
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FIRST. Art. 111 of the Labor Code, as amended, clearly declares movant’s right to a ten (10%) per cent of the award due its client. In addition, this right to ten (10%) per cent attorney’s fees is supplemented by Sec. 111, Rule VIII, Book III of the Omnibus Rules Implementing the Labor Code, as amended.
x x x
As already stated, Article 111 of the Labor Code regulates the amount recoverable as attorney’s fees in the nature of damages sustained by and awarded to the prevailing party. It may not be used therefore, as the lone standard in fixing the exact amount payable to the lawyer by his client for the legal services he rendered. Also, while it limits the maximum allowable amount of attorney’s fees, it does not direct the instantaneous and automatic award of attorney’s fees in such maximum limit.
It, therefore, behooves the adjudicator in questions and circumstances similar to those in the case at bar, involving a conflict between lawyer and client, to observe the above guidelines in cases calling for the operation of the principles of quasi-contract and quantum meruit, and to conduct a hearing for the proper determination of attorney’s fees. The criteria found in the Code of Professional Responsibility are to be considered, and not disregarded, in assessing the proper amount. Here, the records do not reveal that the parties were duly heard by the labor arbiter on the matter and for the resolution of private respondent’s fees.
It is axiomatic that the reasonableness of attorney’s fees is a question of fact. [Gonzales vs. National Housing Corporation, G.R. No. 50092, December 18, 1979, 94 SCRA 786]. Ordinarily, therefore, we would have remanded this case for further reception of evidence as to the extent and value of the services rendered by private respondent to petitioner. However, so as not to needlessly prolong the resolution of a comparatively simple controversy, we deem it just and equitable to fix in the present recourse a reasonable amount of attorney’s fees in favor of private respondent. For that purpose, we have duly taken into account the accepted guidelines therefor and so much of the pertinent data as are extant in the records of this case which are assistive in that regard. On such premises and in the exercise of our sound discretion, we hold that the amount of P10,000.00 is a reasonable and fair compensation for the legal services rendered by private respondent to petitioner before the labor arbiter and the NLRC.
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