Crossborder practice and multidisciplinary practice in the field of law seem to be the global rule of the day if we study the texts and spirit of the World Trade Organization (WTO) agreements and the current model rules of the American Bar Association (ABA). I have written about it in my previous blogs.
Below is the recent column of Raul Pangalangan, former dean of the college of law of the University of the Philippines, who promotes the idea of liberalizing the allegedly protectionist constitutional provisions of the Philippines insofar as certain professions are concerned, e.g. law, accountancy, medicine, and others.
Among other things, Pangalangan stated:
1. “For the legal profession, to which I belong, the Supreme Court has in fact barred not just foreigners but even Filipino citizens who got their basic law degrees abroad — which in turn favors the locally-trained native-born”.
2. “The time has come to reverse the pattern, whether by congressional revision or by judicial reinterpretation. We must advance the national interest by enabling the most sophisticated clients to access the most sophisticated professionals who can meet their price. Insulating the professions within a nationalist cocoon will stunt intellectual growth and foster in-breeding. The only way to ensure that we are competitive globally is by competing globally and winning”.
3. “Moreover, at a practical level, protectionism simply doesn’t work. One, even with the ban in place, foreigners still get to do the juiciest and most creative phases of the work, and yet stay safely below the protectionists’ radar screen. They remain invisible to local regulators by coming on board as consultants rather than, say, counsels of record. There are so many ways to tell when the professional relationship begins and what sort of advice or work constitutes practice of a profession.”
Form your own opinion.
Personally, I feel that we may allow foreign lawyers to work as in-house legal consultants of their foreign corporate clients which are licensed to do business here but only insofar as the giving of legal advice in relation to the laws and jurisprudence of the countries of nationality of their corporate clients are concerned; and that they must work with and through local Filipino law firms insofar as the giving of legal advice with respect to Philippine laws and jurisprudence are concerned.
As to appearances in courts and administrative tribunals and the handling and management of actual court and quasi-judicial litigations are concerned, I am against giving foreign lawyers such a privilege because they do not have the competence insofar as Philippine laws, jurisprudence and litigation rules are concerned and, further, because local lawyers can more ably and competently handle and manage such kind of legal work.
No attempt by Congress and the Supreme Court to liberalize the entry of foreign lawyers here should be done without widely and democratically consulting the local voluntary bar associations in the whole country, not only the mandatory Integrated Bar of the Philippines.
Passion For Reason
Protectionism isn’t for professionals
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 00:47:00 02/27/2009
Filipino professionals should seek reciprocity, not protectionism. Competition is not our enemy, it is our friend. For as long as we are confident that we stand shoulder to shoulder with foreign professionals, what we should do is not to keep out foreigners but tear down barriers that stop us from competing on a equal terms. Let us not raise protectionist walls but build merely a level playing field.
I am a total outsider to the high-profile feud within SGV & Co., the country’s leading accounting firm, and have followed the story only in the newspapers. Some accounts say that one camp has on its side the protectionist clause of the Constitution that excludes all foreigners from the practice of all professions. The argument goes: If the Manila-based SGV is “integrated” into the international firm Ernst & Young, the Filipino accountants will merely front for their foreign principals thus circumventing the Constitution, much to the chagrin of the politically correct nationalists hereabouts. I’m sure the row involves other complex issues, but my focus here is solely the entrenched protectionism of the professions, why it is disturbing and how we can solve it without Charter change. (Why give our impostor President yet another excuse for Charter change?)
Sure, the nationalists have the law on their side, but even that is not ironclad. “The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.” The exclusion is sweeping, but Congress can make exceptions. Most probably Congress won’t have the guts to stand up to the partisans of old-school nationalism, and indeed the protectionist urge is rising, not ebbing. For the legal profession, to which I belong, the Supreme Court has in fact barred not just foreigners but even Filipino citizens who got their basic law degrees abroad — which in turn favors the locally-trained native-born.
The time has come to reverse the pattern, whether by congressional revision or by judicial reinterpretation. We must advance the national interest by enabling the most sophisticated clients to access the most sophisticated professionals who can meet their price. Insulating the professions within a nationalist cocoon will stunt intellectual growth and foster in-breeding. The only way to ensure that we are competitive globally is by competing globally and winning.
Let’s hear it from Jose Rizal: “[G]enius knows no country, [it] sprouts everywhere, genius is like light, air, the patrimony of everybody, cosmopolitan like space, like life, like God.” This quote I found quite appropriately at the National Museum, beside Juan Luna’s “Spoliarium,” Gold Medal winner at the 1884 Madrid Exposition of Fine Arts. (The Silver Medal went to Felix Resurreccion Hidalgo’s “Christian Virgins Exposed to the Mob.”)
Worse, protectionism actually gives shelter to archaic and unethical practices. To my fellow lawyers out there: We know that there are Filipino workaday practices that are seen locally as a badge of survivorship and “abilidad” [ability] but abroad actually constitute shameful grounds for disbarment that the true professional doesn’t mention in polite conversation.
Moreover, at a practical level, protectionism simply doesn’t work. One, even with the ban in place, foreigners still get to do the juiciest and most creative phases of the work, and yet stay safely below the protectionists’ radar screen. They remain invisible to local regulators by coming on board as consultants rather than, say, counsels of record. There are so many ways to tell when the professional relationship begins and what sort of advice or work constitutes practice of a profession.
It doesn’t help, for instance, that the Supreme Court has so broadly defined law practice to cover “any activity, in or out of court, which requires the application of law.” If an incontinent foreigner arrives at the Manila international airport reads a sign saying “Bawal jumingle dito,” and contains himself, he had thus just engaged in the unauthorized practice of law right after someone translates for him the word “jingle” and conjugates it in Tagalog.
Moreover, despite the rising tide of nationalism these past decades, the SC has actually held that Filipino CPAs enjoyed reciprocity in one foreign jurisdiction when, it turns out, no governmental impediments stood because in the first place their accountants were “chartered” by private societies, not by the state. Again, knee-jerk patriotism was unable to detect real barriers to the Filipino accountant. There are subtle ways to exclude us (e.g., non-recognition of professional credentials, like the de-certified nursing boards after a recent cheating scandal) or for us to exclude them (e.g., give the bar exams in Filipino and ask them to use certiorari as a verb in the future tense).
In a way, this entire debate is actually moot and academic. With or without protectionism, foreign firms end up having to tie up with Filipino firms in order to do local business. The tie-up is the inevitable localization of global practice. The only thing that protectionism does is to downgrade it as a constitutionalized form of rent-seeking. We end up doing the same thing, but feel cheap doing it.
In the Constitution, the “Filipino professionals only” clause is found in the article on the National Economy and Patrimony. The Filipino professional is a national resource, no different from gold mines in our mountains, the waters flowing in our rivers, the airwaves for telecommunications — all these are the Filipinos’ sole domain. But professional expertise is distinct in one respect: it thrives best in competition with the brightest. Protectionism, how many more crimes will be committed in thy name?
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20090227-191270/Protectionism-isnt-for-professionals
I am not a pro bono lawyer. See the PAO or IBP chapter near you for free legal aid.
Friday, February 27, 2009
Justice fined
The Philippine Supreme Court recently fined retired Supreme Court Associate Justice Ruben Reyes 500,000 Pesos in a collegial decision finding him administratively guilty of leaking a draft of a decision, of which he was the ponente, involving an election case between powerful feudal lords in the Visayas.
The controversial issue was the main cause of the recent impeachment case filed by pro-Malacanang Palace congressmen, who wanted to kick out Supreme Court Chief Justice Reynato Puno, as a prelude to a Charter Change scenario before the May 2010 national election.
Below are a stinging write up by a blogger on the issue and a biodata of Justice Reyes.
I admire the Court for its swift action even as I am deeply saddened and embarrassed by the above scandal. The Reyes misconduct has weakened the Justice System of the already much-maligned and corrupt Philippine Government.
During my active service as a law professor of the Far Eastern University, Manila, I once had the chance to meet and talk with Justice Reyes. I found his personality to be humble and amiable. Nonetheless, his unethical conduct has further demoralized the Filipinos.
Justice Ruben Reyes Gets Swift Justice
A Supreme Court investigating panel has found sufficient evidence pointing to retired Associate Justice Ruben Reyes as the one who leaked the unpromulgated and confidential decision on the citizenship case of Negros Oriental Rep. Jocelyn Limkaichong. Aside from Reyes, the High Court also found two members of Reyes’ staff liable for the leakage.
In a unanimous decision, the en banc SC then found its former member liable for grave misconduct and fined him P500,000 to be charged to his retirement benefits. The High Court also disqualified Reyes from holding office in any government agency, including government owned or controlled corporations. He also faces disciplinary sanctions as a member of the Integrated Bar of the Philippines, possibly suspension from the practice of law. Ouch!
Others might see it as a slap in the wrist, as the fine constitutes only about 10% of what he will receive in retirement benefits. He has also enjoyed the other perks given to a retiring SC justice, including the traditional world tour with his wife at the Court’s expense.
But that still hurts, for a lawyer and magistrate of his stature. And half a million is still half a million, especially in these hard times. And so Justice Reyes wailed: “I can’t believe they are holding me responsible. I have the least reason to do that and the least motive.”
But notice that he could not categorically say that he didn’t do it, one reason why the investigating panel found him “notably evasive”. Instead of meeting the issue head-on, which an innocent man would do, he prevaricated. And got spanked for it.
Recall that the delay in the promulgation of the decision on the case was brought to public attention by businessman Louis Biraogo, who mysteriously got an advance copy.
Congresswoman Limkaichong won by 7,746 votes over Olivia Paras, wife of former Rep. Jacinto “Jing” Paras, in the 2007 congressional elections. The Paras camp had sought to disqualify Limkaichong from being a candidate over questions about her not being supposedly a natural-born Filipino. Biraogo was instrumental in filing the petition against Limkaichong. He and Jing Paras are fraternity brothers in U.P.’s Upsilon Sigma Phi.
The sudden disclosure was more than an embarrassment to Chief Justice Reynato Puno, as Biraogo accused the CJ of deliberately sitting on the citizenship case and favoring Limkaichong – an allegation that could have formed the basis for the rumored ouster bids against the chief magistrate. Malacanang reportedly wanted Puno out of the way because of his antipathy to constitutional change, and was orchestrating moves to ease him out.
The source of the leak was pinpointed as Justice Reyes. Which begs the question: why’d he do it ?
Accepting an outright bribe would be too crass. One possible reason is that Reyes was expecting some payback from Malacanang, in the form of a cushy sinecure or a juicy board seat or seats in any number of corporations. He was just feathering his retirement nest and was therefore being extraordinarily cooperative. But with the SC decision, that avenue has effectively been barred. And now he faces even more woes as his license to practice may be suspended or even revoked. And there was nothing his brods in Ateneo’s Fraternal Order of Utopia, Justices Renato Corona and Arthur Brion, could do to save his ass. In fact, Justice Corona was a member of the investigating panel which recommended the sanctions against Reyes. Neither can Malacanang intercede, considering the chilly relations between the CJ and GMA. Reyes has been left twisting in the wind.
See:
http://thewarriorlawyer.com/2009/02/26/justice-ruben-reyes-gets-swift-justice/
JUSTICE RUBEN T. REYES
(As of January 5, 2004; See: www.chanrobles.com))
A ranking Division Chairman of the Court of Appeals with the following credentials:
I. .Career jurist. Has traveled the model judicial route with unblemished integrity as a private and corporate practitioner (10 years), medalled Asst. City Fiscal of Manila (9 years), outstanding RTC Judge of Bataan and Manila (10 years) and multi-awarded Appellate Justice (10 years by 2-17-04).
II. .Legal and judicial experience ideally complemented by (a) 8 summer studies abroad (including California Judicial College, National Judicial College in Nevada, Harvard Law School in Massachusetts, Appellate Judges Seminar in Wyoming and Academy of American & International Law in Texas) and (b) law teaching (longest-serving national president of association of law professors.
He is also a (c) lecturer on 3 Bar subjects ¬ Criminal Law, Remedial Law and Practical Exercises; (d) resource person, UP Law Center Committees, Answering Bar Questions in Criminal and Remedial Law and (e) two-time seminar coordinator of World Assn. of Law Professors (W ALP).
III. .2002 Bar Examiner in Legal Ethics and Practical Exercises and nominee of the JBC to the Supreme Court. This will be his 5th nomination.
IV. .Skilled in legal and judicial writing. (a) Author of Bar Reviewer on Special Penal Laws and several articles published in law journals and reviews; (b) Editor of 3 judicial publications (PJA Newsletter, Bench Bulletin and CA Journal); (c) Member of the UP Law Center Board of Editors on Rules of Court in on Legal Education and Bar Matters; (c) Co-chair, SC sub-committee on Mandatory Continuing Legal Education (MCLE) for Practicing Lawyers; (d) Vice Chair, Dept. of Court Management, Phil. Judicial Academy; (e) Founder, Campaign for Law Literacy (CALL).
V. .Lecturer in MCLE/law seminars of the Integrated Bar (IBP), Phil. Judicial Academy (PHILJA) and Phil. Assn. of Law Professors (PALP).
VI. .At age 65 (on 1-3-04), he is in the pink of health and peak of his productivity. Has low pending caseload; maintains ZERO balance in criminal cases. Penned significant Decisions (Ex.: Bussin v. Isnaji and Misuari, ASS-CSN v. Bon. Daway, SA TELEC II v. NLRC, etc.)
VII. .Hails from HAGONOY, BULACAN with maternal roots in PANGASINAN. There has been NO Bulakeño in the Supreme Court for the past four / five decades.
VIII. . Recommended by (1) BANTAY-KATARUNGAN, (2) Women Lawyers Association of the Philippines (WLAP), (3) Philippine Association of Law Schools (PALS), (4) Philippine Bar Association (PBA), (5) Integrated Bar of the Philippines (IBP), etc.
IX. .Selected Awards: (1) 1999-97 Leadership Recognitions, Phil. Assn. of Law Schools (PALS) and 4 other law schools (2) 1996 CUP Outstanding Justice of the CA (3) 1997 Outstanding Citizen, Novaliches Foundation (4) 1998 Bulacan Province Dangal ng Lipi (5) 1999 National YMCA Presidential Awardee (6) 2000 IBP Manila IV Recognition (7) 200l New Millennium Achiever (8) 2001 Huwarang Pilipino in Law and Judiciary (9) 2002 Dangal ng Bayan, Hagonoy, Bulacan ( 10) 2003 Recognition, Bulacan Integrated Bar.
The controversial issue was the main cause of the recent impeachment case filed by pro-Malacanang Palace congressmen, who wanted to kick out Supreme Court Chief Justice Reynato Puno, as a prelude to a Charter Change scenario before the May 2010 national election.
Below are a stinging write up by a blogger on the issue and a biodata of Justice Reyes.
I admire the Court for its swift action even as I am deeply saddened and embarrassed by the above scandal. The Reyes misconduct has weakened the Justice System of the already much-maligned and corrupt Philippine Government.
During my active service as a law professor of the Far Eastern University, Manila, I once had the chance to meet and talk with Justice Reyes. I found his personality to be humble and amiable. Nonetheless, his unethical conduct has further demoralized the Filipinos.
Justice Ruben Reyes Gets Swift Justice
A Supreme Court investigating panel has found sufficient evidence pointing to retired Associate Justice Ruben Reyes as the one who leaked the unpromulgated and confidential decision on the citizenship case of Negros Oriental Rep. Jocelyn Limkaichong. Aside from Reyes, the High Court also found two members of Reyes’ staff liable for the leakage.
In a unanimous decision, the en banc SC then found its former member liable for grave misconduct and fined him P500,000 to be charged to his retirement benefits. The High Court also disqualified Reyes from holding office in any government agency, including government owned or controlled corporations. He also faces disciplinary sanctions as a member of the Integrated Bar of the Philippines, possibly suspension from the practice of law. Ouch!
Others might see it as a slap in the wrist, as the fine constitutes only about 10% of what he will receive in retirement benefits. He has also enjoyed the other perks given to a retiring SC justice, including the traditional world tour with his wife at the Court’s expense.
But that still hurts, for a lawyer and magistrate of his stature. And half a million is still half a million, especially in these hard times. And so Justice Reyes wailed: “I can’t believe they are holding me responsible. I have the least reason to do that and the least motive.”
But notice that he could not categorically say that he didn’t do it, one reason why the investigating panel found him “notably evasive”. Instead of meeting the issue head-on, which an innocent man would do, he prevaricated. And got spanked for it.
Recall that the delay in the promulgation of the decision on the case was brought to public attention by businessman Louis Biraogo, who mysteriously got an advance copy.
Congresswoman Limkaichong won by 7,746 votes over Olivia Paras, wife of former Rep. Jacinto “Jing” Paras, in the 2007 congressional elections. The Paras camp had sought to disqualify Limkaichong from being a candidate over questions about her not being supposedly a natural-born Filipino. Biraogo was instrumental in filing the petition against Limkaichong. He and Jing Paras are fraternity brothers in U.P.’s Upsilon Sigma Phi.
The sudden disclosure was more than an embarrassment to Chief Justice Reynato Puno, as Biraogo accused the CJ of deliberately sitting on the citizenship case and favoring Limkaichong – an allegation that could have formed the basis for the rumored ouster bids against the chief magistrate. Malacanang reportedly wanted Puno out of the way because of his antipathy to constitutional change, and was orchestrating moves to ease him out.
The source of the leak was pinpointed as Justice Reyes. Which begs the question: why’d he do it ?
Accepting an outright bribe would be too crass. One possible reason is that Reyes was expecting some payback from Malacanang, in the form of a cushy sinecure or a juicy board seat or seats in any number of corporations. He was just feathering his retirement nest and was therefore being extraordinarily cooperative. But with the SC decision, that avenue has effectively been barred. And now he faces even more woes as his license to practice may be suspended or even revoked. And there was nothing his brods in Ateneo’s Fraternal Order of Utopia, Justices Renato Corona and Arthur Brion, could do to save his ass. In fact, Justice Corona was a member of the investigating panel which recommended the sanctions against Reyes. Neither can Malacanang intercede, considering the chilly relations between the CJ and GMA. Reyes has been left twisting in the wind.
See:
http://thewarriorlawyer.com/2009/02/26/justice-ruben-reyes-gets-swift-justice/
JUSTICE RUBEN T. REYES
(As of January 5, 2004; See: www.chanrobles.com))
A ranking Division Chairman of the Court of Appeals with the following credentials:
I. .Career jurist. Has traveled the model judicial route with unblemished integrity as a private and corporate practitioner (10 years), medalled Asst. City Fiscal of Manila (9 years), outstanding RTC Judge of Bataan and Manila (10 years) and multi-awarded Appellate Justice (10 years by 2-17-04).
II. .Legal and judicial experience ideally complemented by (a) 8 summer studies abroad (including California Judicial College, National Judicial College in Nevada, Harvard Law School in Massachusetts, Appellate Judges Seminar in Wyoming and Academy of American & International Law in Texas) and (b) law teaching (longest-serving national president of association of law professors.
He is also a (c) lecturer on 3 Bar subjects ¬ Criminal Law, Remedial Law and Practical Exercises; (d) resource person, UP Law Center Committees, Answering Bar Questions in Criminal and Remedial Law and (e) two-time seminar coordinator of World Assn. of Law Professors (W ALP).
III. .2002 Bar Examiner in Legal Ethics and Practical Exercises and nominee of the JBC to the Supreme Court. This will be his 5th nomination.
IV. .Skilled in legal and judicial writing. (a) Author of Bar Reviewer on Special Penal Laws and several articles published in law journals and reviews; (b) Editor of 3 judicial publications (PJA Newsletter, Bench Bulletin and CA Journal); (c) Member of the UP Law Center Board of Editors on Rules of Court in on Legal Education and Bar Matters; (c) Co-chair, SC sub-committee on Mandatory Continuing Legal Education (MCLE) for Practicing Lawyers; (d) Vice Chair, Dept. of Court Management, Phil. Judicial Academy; (e) Founder, Campaign for Law Literacy (CALL).
V. .Lecturer in MCLE/law seminars of the Integrated Bar (IBP), Phil. Judicial Academy (PHILJA) and Phil. Assn. of Law Professors (PALP).
VI. .At age 65 (on 1-3-04), he is in the pink of health and peak of his productivity. Has low pending caseload; maintains ZERO balance in criminal cases. Penned significant Decisions (Ex.: Bussin v. Isnaji and Misuari, ASS-CSN v. Bon. Daway, SA TELEC II v. NLRC, etc.)
VII. .Hails from HAGONOY, BULACAN with maternal roots in PANGASINAN. There has been NO Bulakeño in the Supreme Court for the past four / five decades.
VIII. . Recommended by (1) BANTAY-KATARUNGAN, (2) Women Lawyers Association of the Philippines (WLAP), (3) Philippine Association of Law Schools (PALS), (4) Philippine Bar Association (PBA), (5) Integrated Bar of the Philippines (IBP), etc.
IX. .Selected Awards: (1) 1999-97 Leadership Recognitions, Phil. Assn. of Law Schools (PALS) and 4 other law schools (2) 1996 CUP Outstanding Justice of the CA (3) 1997 Outstanding Citizen, Novaliches Foundation (4) 1998 Bulacan Province Dangal ng Lipi (5) 1999 National YMCA Presidential Awardee (6) 2000 IBP Manila IV Recognition (7) 200l New Millennium Achiever (8) 2001 Huwarang Pilipino in Law and Judiciary (9) 2002 Dangal ng Bayan, Hagonoy, Bulacan ( 10) 2003 Recognition, Bulacan Integrated Bar.
Tuesday, February 24, 2009
Legal aid rules
On February 1, 2009, the Philippine Supreme Court issued the new RULE ON MANDATORY LEGAL AID SERVICE FOR PRACTICING LAWYERS, docketed as BM No. 2012, which will take effect on July 1, 2009.
This is its first experiment on the matter.
I feel that the Rule, which is still at its infancy, would benefit from improvements in its style and content.
The Rule needs widespread consultations with the voluntary Bar nationwide.
I wonder how widespread the consultations were prior to the adoption of the new rule by the Supreme Court. The Las Pinas City Bar Association was not consulted by the Supreme Court or the IBP head office on the proposed Rule.
As a rule, it is not advisable for the Supreme Court to consult only the mandatory Integrated Bar of the Philippines (IBP).
In most cases, the local voluntary bar associations in the various cities and provinces of the country are much more active, dedicated, zealous, industrious, organized, mature, intelligent, and forward-looking than local IBP chapters, most of whom are alive only during chapter elections every two years or when they hold routine MCLE seminars and bench/bar dialogs.
At any rate, I wish to digest its salient parts for the information of legal researchers visiting this blog. Thus:
The Rule governs the “mandatory requirement for practicing lawyers to render free legal aid services in all cases (whether, civil, criminal or administrative) involving indigent and pauper litigants where the assistance of a lawyer is needed”. It speaks of the duty of the legal profession to support the legal aid program of the Integrated Bar of the Philippines (IBP).
The term “practicing lawyers” refers to members of the Philippine Bar who appear for and in behalf of parties in courts of law and quasi-judicial agencies, including but not limited to the National Labor Relations Commission, National Conciliation and Mediation Board, Department of Labor and Employment Regional Offices, Department of Agrarian Reform Adjudication Board and National Commission for Indigenous Peoples.
It excludes Government employees and incumbent elective officials not allowed by law to practice; lawyers who by law are not allowed to appear in court; supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of non-governmental organizations (NGOs) and peoples’ organizations (POs) like the Free Legal Assistance Group who by the nature of their work already render free legal aid to indigent and pauper litigants; and lawyers who are employed in the private sector but do not appear for and in behalf of parties in courts of law and quasi-judicial agencies.
The term “indigent and pauper litigants” refers to those defined under Rule 141, Section 19 of the Rules of Court and Algura v. The Local Government Unit of the City of Naga (G.R. No. 150135, 30 October 2006, 506 SCRA 81).
The term “legal aid cases” refers are those actions, disputes, and controversies that are criminal, civil and administrative in nature in whatever stage wherein indigent and pauper litigants need legal representation.
The term “free legal aid services” refers to appearance in court or quasi-judicial body for and in behalf of an indigent or pauper litigant and the preparation of pleadings or motions. It shall also cover assistance by a practicing lawyer to indigent or poor litigants in court-annexed mediation and in other modes of alternative dispute resolution (ADR). Services rendered when a practicing lawyer is appointed counsel de oficio are also be considered as free legal aid services and credited as compliance under this Rule.
The Rule requires the following of practicing Filipino lawyers:
(a) Every practicing lawyer is required to render a minimum of sixty (60) hours of free legal aid services to indigent litigants in a year. Said 60 hours shall be spread within a period of twelve (12) months, with a minimum of five (5) hours of free legal aid services each month. However, where it is necessary for the practicing lawyer to render legal aid service for more than five (5) hours in one month, the excess hours may be credited to the said lawyer for the succeeding periods.
For this purpose, a practicing lawyer shall coordinate with the Clerk of Court for cases where he may render free legal aid service. He may also coordinate with the IBP Legal Aid Chairperson of the IBP Chapter to inquire about cases where he may render free legal aid service.
The practicing lawyer shall report compliance with the requirement within ten (10) days of the last month of each quarter of the year.
(b) A practicing lawyer shall be required to secure and obtain a certificate from the Clerk of Court attesting to the number of hours spent rendering free legal aid services in a case. The certificate shall contain the following information:
(i) The case or cases where the legal aid service was rendered, the party or parties in the said case(s) for whom the service was rendered, the docket number of the said case(s) and the date(s) the service was rendered.
(ii) The number of hours actually spent attending a hearing or conducting trial on a particular case in the court or quasi-judicial body.
(iii) The number of hours actually spent attending mediation, conciliation or any other mode of ADR on a particular case.
(iv) A motion (except a motion for extension of time to file a pleading or for postponement of hearing or conference) or pleading filed on a particular case shall be considered as one (1) hour of service.
(c) The compliance report shall be submitted to the Legal Aid Chairperson of the IBP Chapter within the court’s jurisdiction for verification of the contents of the certificate.
(d) The IBP Chapter shall, after verification, issue a compliance certificate to the concerned lawyer. The IBP Chapter shall also submit the compliance reports to the IBP’s NCLA for recording and documentation.
(e) Practicing lawyers shall indicate in all pleadings filed before the courts or quasi-judicial bodies the number and date of issue of their certificate of compliance for the immediately preceding compliance period. Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records.
(f) Before the end of a particular year, non-practising lawyers shall fill up a form prepared by the NCLA which states that, during that year, they are employed with the government or are incumbent elective officials not allowed by law to practice or lawyers who by law are not allowed to appear in court. The form shall be sworn to and submitted to the IBP Chapter or IBP National Office together with the payment of an annual contribution of Two Thousand Pesos (P2,000). Said contribution shall accrue to a special fund of the IBP for the support of its legal aid program.
(g) Before the end of a particular year, lawyers who serve in legal clinics or NGOs or POs shall secure certifications from the directors thereof to the effect that, during that year, they have served as supervising lawyers in a legal clinic or actively participated in the NGO’s or PO’s free legal aid activities. The certification shall be submitted to the IBP Chapter or IBP National Office.
(h) The above provisions apply also to non-practising lawyers employed in the private sector. The form shall be sworn to and submitted to the IBP Chapter or IBP National Office together with the payment of an annual contribution of Four Thousand Pesos (P4,000) by way of support for the efforts of practicing lawyers who render mandatory free legal aid services. Said contribution shall accrue to a special fund of the IBP for the support of its legal aid program. Failure to pay the annual contribution shall subject the lawyer to a penalty of Two Thousand Pesos (P2,000) for that year which amount shall also accrue to the special fund for the legal aid program of the IBP.
The IBP’s National Committee on Legal Aid shall act as the national repository of records in compliance with this Rule. It shall hold in trust, manage and utilize the contributions and penalties that will be paid by lawyers pursuant to this Rule to effectively carry out the provisions of the Rule. It shall annually submit an accounting to the IBP Board of Governors. The accounting shall be included by the IBP in its report to the Supreme Court in connection with its request for the release of the subsidy for its legal aid program.
At the end of every calendar year, any practicing lawyer who fails to meet the minimum prescribed 60 hours of legal aid service each year shall be required by the IBP, through the NCLA, to explain why he was unable to render the minimum prescribed number of hours. If no explanation has been given or if the NCLA finds the explanation unsatisfactory, the NCLA shall make a report and recommendation to the IBP Board of Governors that the erring lawyer be declared a member of the IBP who is not in good standing. Upon approval of the NCLA’s recommendation, the IBP Board of Governors shall declare the erring lawyer as a member not in good standing. Notice thereof shall be furnished the erring lawyer and the IBP Chapter which submitted the lawyer’s compliance report or the IBP Chapter where the lawyer is registered, in case he did not submit a compliance report. The notice to the lawyer shall include a directive to pay Four Thousand Pesos (P4,000) penalty which shall accrue to the special fund for the legal aid program of the IBP.
The “not in good standing” declaration shall be effective for a period of three (3) months from the receipt of the erring lawyer of the notice from the IBP Board of Governors. During the said period, the lawyer cannot appear in court or any quasi-judicial body as counsel. Provided, however, that the “not in good standing” status shall subsist even after the lapse of the three-month period until and unless the penalty shall have been paid.
Any lawyer who fails to comply with his duties under this Rule for at least three (3) consecutive years shall be the subject of disciplinary proceedings to be instituted motu proprio by the CBD. The said proceedings shall afford the erring lawyer due process in accordance with the rules of the CBD and Rule 139-B of the Rules of Court. If found administratively liable, the penalty of suspension in the practice of law for one (1) year shall be imposed upon him.
A lawyer who renders mandatory legal aid service for the required number of hours in a year for the three year-period covered by a compliance period under the Rules on MCLE shall be credited the following: two (2) credit units for legal ethics, two (2) credit units for trial and pretrial skills, two (2) credit units for alternative dispute resolution, four (4) credit units for legal writing and oral advocacy, four (4) credit units for substantive and procedural laws and jurisprudence and six (6) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(g), Rule 2 of the Rules on MCLE.
A lawyer who renders mandatory legal aid service for the required number of hours in a year for at least two consecutive years within the three year-period covered by a compliance period under the Rules on MCLE shall be credited the following: one (1) credit unit for legal ethics, one (1) credit unit for trial and pretrial skills, one (1) credit unit for alternative dispute resolution, two (2) credit units for legal writing and oral advocacy, two (2) credit units for substantive and procedural laws and jurisprudence and three (3) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(g), Rule 2 of the Rules on MCLE.
The IBP, through the NCLA, shall recommend the implementing regulations in determining who are “practicing lawyers,” what constitute “legal aid cases” and what administrative procedures and financial safeguards which may be necessary and proper in the implementation of this rule may be prescribed. It shall coordinate with the various legal chapters in the crafting of the proposed implementing regulations and, upon approval by the IBP Board of Governors, the said implementing regulations shall be transmitted to the Supreme Court for final approval.
This is its first experiment on the matter.
I feel that the Rule, which is still at its infancy, would benefit from improvements in its style and content.
The Rule needs widespread consultations with the voluntary Bar nationwide.
I wonder how widespread the consultations were prior to the adoption of the new rule by the Supreme Court. The Las Pinas City Bar Association was not consulted by the Supreme Court or the IBP head office on the proposed Rule.
As a rule, it is not advisable for the Supreme Court to consult only the mandatory Integrated Bar of the Philippines (IBP).
In most cases, the local voluntary bar associations in the various cities and provinces of the country are much more active, dedicated, zealous, industrious, organized, mature, intelligent, and forward-looking than local IBP chapters, most of whom are alive only during chapter elections every two years or when they hold routine MCLE seminars and bench/bar dialogs.
At any rate, I wish to digest its salient parts for the information of legal researchers visiting this blog. Thus:
The Rule governs the “mandatory requirement for practicing lawyers to render free legal aid services in all cases (whether, civil, criminal or administrative) involving indigent and pauper litigants where the assistance of a lawyer is needed”. It speaks of the duty of the legal profession to support the legal aid program of the Integrated Bar of the Philippines (IBP).
The term “practicing lawyers” refers to members of the Philippine Bar who appear for and in behalf of parties in courts of law and quasi-judicial agencies, including but not limited to the National Labor Relations Commission, National Conciliation and Mediation Board, Department of Labor and Employment Regional Offices, Department of Agrarian Reform Adjudication Board and National Commission for Indigenous Peoples.
It excludes Government employees and incumbent elective officials not allowed by law to practice; lawyers who by law are not allowed to appear in court; supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of non-governmental organizations (NGOs) and peoples’ organizations (POs) like the Free Legal Assistance Group who by the nature of their work already render free legal aid to indigent and pauper litigants; and lawyers who are employed in the private sector but do not appear for and in behalf of parties in courts of law and quasi-judicial agencies.
The term “indigent and pauper litigants” refers to those defined under Rule 141, Section 19 of the Rules of Court and Algura v. The Local Government Unit of the City of Naga (G.R. No. 150135, 30 October 2006, 506 SCRA 81).
The term “legal aid cases” refers are those actions, disputes, and controversies that are criminal, civil and administrative in nature in whatever stage wherein indigent and pauper litigants need legal representation.
The term “free legal aid services” refers to appearance in court or quasi-judicial body for and in behalf of an indigent or pauper litigant and the preparation of pleadings or motions. It shall also cover assistance by a practicing lawyer to indigent or poor litigants in court-annexed mediation and in other modes of alternative dispute resolution (ADR). Services rendered when a practicing lawyer is appointed counsel de oficio are also be considered as free legal aid services and credited as compliance under this Rule.
The Rule requires the following of practicing Filipino lawyers:
(a) Every practicing lawyer is required to render a minimum of sixty (60) hours of free legal aid services to indigent litigants in a year. Said 60 hours shall be spread within a period of twelve (12) months, with a minimum of five (5) hours of free legal aid services each month. However, where it is necessary for the practicing lawyer to render legal aid service for more than five (5) hours in one month, the excess hours may be credited to the said lawyer for the succeeding periods.
For this purpose, a practicing lawyer shall coordinate with the Clerk of Court for cases where he may render free legal aid service. He may also coordinate with the IBP Legal Aid Chairperson of the IBP Chapter to inquire about cases where he may render free legal aid service.
The practicing lawyer shall report compliance with the requirement within ten (10) days of the last month of each quarter of the year.
(b) A practicing lawyer shall be required to secure and obtain a certificate from the Clerk of Court attesting to the number of hours spent rendering free legal aid services in a case. The certificate shall contain the following information:
(i) The case or cases where the legal aid service was rendered, the party or parties in the said case(s) for whom the service was rendered, the docket number of the said case(s) and the date(s) the service was rendered.
(ii) The number of hours actually spent attending a hearing or conducting trial on a particular case in the court or quasi-judicial body.
(iii) The number of hours actually spent attending mediation, conciliation or any other mode of ADR on a particular case.
(iv) A motion (except a motion for extension of time to file a pleading or for postponement of hearing or conference) or pleading filed on a particular case shall be considered as one (1) hour of service.
(c) The compliance report shall be submitted to the Legal Aid Chairperson of the IBP Chapter within the court’s jurisdiction for verification of the contents of the certificate.
(d) The IBP Chapter shall, after verification, issue a compliance certificate to the concerned lawyer. The IBP Chapter shall also submit the compliance reports to the IBP’s NCLA for recording and documentation.
(e) Practicing lawyers shall indicate in all pleadings filed before the courts or quasi-judicial bodies the number and date of issue of their certificate of compliance for the immediately preceding compliance period. Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records.
(f) Before the end of a particular year, non-practising lawyers shall fill up a form prepared by the NCLA which states that, during that year, they are employed with the government or are incumbent elective officials not allowed by law to practice or lawyers who by law are not allowed to appear in court. The form shall be sworn to and submitted to the IBP Chapter or IBP National Office together with the payment of an annual contribution of Two Thousand Pesos (P2,000). Said contribution shall accrue to a special fund of the IBP for the support of its legal aid program.
(g) Before the end of a particular year, lawyers who serve in legal clinics or NGOs or POs shall secure certifications from the directors thereof to the effect that, during that year, they have served as supervising lawyers in a legal clinic or actively participated in the NGO’s or PO’s free legal aid activities. The certification shall be submitted to the IBP Chapter or IBP National Office.
(h) The above provisions apply also to non-practising lawyers employed in the private sector. The form shall be sworn to and submitted to the IBP Chapter or IBP National Office together with the payment of an annual contribution of Four Thousand Pesos (P4,000) by way of support for the efforts of practicing lawyers who render mandatory free legal aid services. Said contribution shall accrue to a special fund of the IBP for the support of its legal aid program. Failure to pay the annual contribution shall subject the lawyer to a penalty of Two Thousand Pesos (P2,000) for that year which amount shall also accrue to the special fund for the legal aid program of the IBP.
The IBP’s National Committee on Legal Aid shall act as the national repository of records in compliance with this Rule. It shall hold in trust, manage and utilize the contributions and penalties that will be paid by lawyers pursuant to this Rule to effectively carry out the provisions of the Rule. It shall annually submit an accounting to the IBP Board of Governors. The accounting shall be included by the IBP in its report to the Supreme Court in connection with its request for the release of the subsidy for its legal aid program.
At the end of every calendar year, any practicing lawyer who fails to meet the minimum prescribed 60 hours of legal aid service each year shall be required by the IBP, through the NCLA, to explain why he was unable to render the minimum prescribed number of hours. If no explanation has been given or if the NCLA finds the explanation unsatisfactory, the NCLA shall make a report and recommendation to the IBP Board of Governors that the erring lawyer be declared a member of the IBP who is not in good standing. Upon approval of the NCLA’s recommendation, the IBP Board of Governors shall declare the erring lawyer as a member not in good standing. Notice thereof shall be furnished the erring lawyer and the IBP Chapter which submitted the lawyer’s compliance report or the IBP Chapter where the lawyer is registered, in case he did not submit a compliance report. The notice to the lawyer shall include a directive to pay Four Thousand Pesos (P4,000) penalty which shall accrue to the special fund for the legal aid program of the IBP.
The “not in good standing” declaration shall be effective for a period of three (3) months from the receipt of the erring lawyer of the notice from the IBP Board of Governors. During the said period, the lawyer cannot appear in court or any quasi-judicial body as counsel. Provided, however, that the “not in good standing” status shall subsist even after the lapse of the three-month period until and unless the penalty shall have been paid.
Any lawyer who fails to comply with his duties under this Rule for at least three (3) consecutive years shall be the subject of disciplinary proceedings to be instituted motu proprio by the CBD. The said proceedings shall afford the erring lawyer due process in accordance with the rules of the CBD and Rule 139-B of the Rules of Court. If found administratively liable, the penalty of suspension in the practice of law for one (1) year shall be imposed upon him.
A lawyer who renders mandatory legal aid service for the required number of hours in a year for the three year-period covered by a compliance period under the Rules on MCLE shall be credited the following: two (2) credit units for legal ethics, two (2) credit units for trial and pretrial skills, two (2) credit units for alternative dispute resolution, four (4) credit units for legal writing and oral advocacy, four (4) credit units for substantive and procedural laws and jurisprudence and six (6) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(g), Rule 2 of the Rules on MCLE.
A lawyer who renders mandatory legal aid service for the required number of hours in a year for at least two consecutive years within the three year-period covered by a compliance period under the Rules on MCLE shall be credited the following: one (1) credit unit for legal ethics, one (1) credit unit for trial and pretrial skills, one (1) credit unit for alternative dispute resolution, two (2) credit units for legal writing and oral advocacy, two (2) credit units for substantive and procedural laws and jurisprudence and three (3) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(g), Rule 2 of the Rules on MCLE.
The IBP, through the NCLA, shall recommend the implementing regulations in determining who are “practicing lawyers,” what constitute “legal aid cases” and what administrative procedures and financial safeguards which may be necessary and proper in the implementation of this rule may be prescribed. It shall coordinate with the various legal chapters in the crafting of the proposed implementing regulations and, upon approval by the IBP Board of Governors, the said implementing regulations shall be transmitted to the Supreme Court for final approval.
Shameless
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.
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.
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.
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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.
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