For qualified immunity purposes, we know that constitutional law can be clearly settled by Supreme Court precedent. If there is no applicable Supreme Court precedent, then the Circuit Court of Appeals in which the forum state is located can establish clearly settled law. If that Circuit Court of Appeals has no applicable case law, then we look to see whether there is a clear consensus in the circuits. If there is none, then the result is that the defendant is protected by qualified immunity because of the absence of clearly settled law (unless it is the rare case in which the challenged conduct was “obviously” unconstitutional even without applicable precedent on point). See generally Chapter 8 of my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2018)(West & Westlaw).
But what of unpublished circuit court opinions that are not intended to be precedent? Can they establish clearly settled law? In an extensive discussion, the Tenth Circuit, in Grissom v. Roberts, 2018 WL 4102891, *2, *3 (10th Cir. 2018), said no but with an interesting twist. It explained:
“The role of an unpublished nonprecedential opinion in this [clearly settled law] enterprise depends on whether the opinion is being used to show that the plaintiff’s proffered proposition is clearly established law or to show that the proposition is unsettled. We have held that “[a]n unpublished opinion … provides little support for the notion that the law is clearly established on [a] point.” But an unpublished opinion can be quite relevant in showing that the law was not clearly established. If we make the collegial, and quite legitimate, assumption that panels of this court render reasonable decisions, we would be hard pressed to say that a proposition of law was clearly established at a time when an unpublished opinion by a panel of this court said the opposite.
… Could we properly say that an official was plainly incompetent for taking guidance from an unpublished appellate opinion?”
Grissom involved an inmate’s claim that his placement in solitary confinement for almost twenty years (ending in 2016) violated his due process and Eighth Amendment rights. As to the due process claim, the Tenth Circuit found that the various defendants did not violate clearly settled law because there was a relevant unpublished Tenth Circuit decision rejecting an inmate’s due process claim based on his solitary confinement from June 2005 on: this decision held that his solitary confinement did not abridge a liberty interest. Moreover, the plaintiff did not point to any subsequent Supreme Court or Tenth Circuit precedent clearly establishing relevant due process law.
And as to the Eighth Amendment claim, the result was the same: no clearly settled Eighth Amendment law. “[T]he most recent relevant decision by this court is an unpublished opinion rejecting an Eighth Amendment claim brought by a prisoner who had been in solitary confinement for 30 years under conditions not markedly different from those here.” Thus, the defendants were entitled to qualified immunity on both claims. Judge Lucero concurred in the judgment, 2018 WL 4102891, *8, arguing that it was “important” to rule that the plaintiff’s lengthy solitary confinement violated due process.
So there you have it. According to the Tenth Circuit, unpublished opinions can only help defendants on the clearly settled law question because they can demonstrate that there is no applicable clearly settled law in the circuit. But they cannot help plaintiffs to show clearly settled law because they are not intended to have precedential value. In effect, the Tenth Circuit is saying that defendants have no duty to know what unpublished circuit court opinions say about the law.