When Should Judges Apply Pearson v. Callahan?

In a Section 1983/due process lawsuit arising out of a high-speech chase, Judge Boyce F. Martin, Jr. issued this thoughtful concurring opinion:

As the Court notes, neither party has cited a single example of a case, from any circuit or district court, in which an officer’s actions in a police chase have ultimately been found to shock the conscience, and I am aware of no such case. Thus, it appears that the set of examples of constitutionally impermissible police-pursuit behavior iscurrently an empty one. Although surprising, this was not especially troubling under the mandatory analytical regime set forth in Saucier v. Katz, 533 U.S. 194 (2001).
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However, police-pursuit cases do not fall within the group of section 1983 cases for which Katz accomplished its goal of developing constitutional precedent because the set of examples of impermissible police-pursuit behavior remains empty. I am therefore concerned about applying Pearson in future police-pursuit cases. Except in the most overwhelmingly egregious case, an officer that crosses the Fourteenth Amendment’s threshold likely still would be entitled to qualified immunity because it was not clearly established that his specific actions were of the kind that crossed the line. Under Pearson, the court confronted with this officer’s actions could avoid the constitutional question entirely and resolve the case on the clearly established prong. And so too could all subsequent courts.
Jones v. Byrnes, No. 08-1889 (6th Cir. Nov. 9, 2009) (here).  Yes.  Pearson creates a vicious circle.  The law was not clearly established because the law was not clearly established.  Judge Martin continues:
This, of course, results in a self-perpetuating cycle in Fourteenth Amendment police-pursuit cases: district courts will skip the constitutional inquiry in favor ofdisposing of cases on the “clearly established” prong, so there will never be an actual finding that an officer’s conduct shocks the conscience, so courts will continue to be able to dispose of cases on the “clearly established” prong, and so on.
It's a serious problem.  Hopefully Judge Martin's concurring opinion will serve as persuasive authority in the Sixth Circuit and beyond.

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