On Monday, the Supreme Court granted certiorari and summarily reversed a decision of the Third Circuit on qualified immunity. The Court described the analysis for an official to be accorded qualified immunity: "Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 566 U. S. ___, ___ (2012) (slip op., at 5). "To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ibid. (brackets and internal quotation marks omitted). "When properly applied, [qualified immunity] protects all but the plainly incompetent or those who knowingly violate the law." Ashcroft v. al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 12) (internal quotation marks omitted). "We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Id., at ___ (slip op., at 9). The Court repeated language that it used in San Francisco v. Sheehan, also decided this term, that suggests that the Court questions if the law can be "clearly established" with a circuit split and possibly where the Supreme Court has not yet determined what the rule is: Assuming for the sake of argument that a right can be "clearly established" by circuit precedent despite disagreement in the courts of appeals, neither of the Third Circuit decisions relied upon clearly established the right at issue. The case involved a jail suicide and from the standpoint of a cynic seems to have had a somewhat unsympathetic plaintiff. The jail had a screening program, the law requires deliberate indifference and while the screening program obviously failed, it was not deliberately indifferent to make mistakes in how the screening should have been performed. In deciding in favor of the officials, the Court did not get to the issue of whether the policy satisfied the deliberate indifference standard. So, the issue of what is an adequate suicide prevention screening protocol remains to be resolved; nevertheless, in defending an official who is entitled to raise qualified immunity, you can use this case and SF v. Sheehan to argue that if there is a circuit split, the court cannot find that the law is clearly established. As the Court concluded: In short, even if the Institution's suicide screening and prevention measures contained the shortcomings that respondents allege, no precedent on the books in November 2004 would have made clear to petitioners that they were overseeing a system that violated the Constitution. Charles W. Thompson, Jr. Executive Director and General Counsel International Municipal Lawyers Association, Inc. 7910 Woodmont Ave., Suite 1440 Bethesda, Maryland 20814 202-466-5424 x7110 Direct: 202-742-1016 Cell: 240-876-6790 Plan ahead: IMLA's Annual Seminar April 24-27, 2015 - Omni Shoreham, Washington D.C. IMLA's Annual Conference October 3-8, 2015 - The Rio, Las Vegas, NV