This is an issue that has been presented recently across several circuits. In a recent decision from the Eleventh Circuit Court Appeals, that Court found that nine (9) days between a decision and the subject incident was sufficient such that the law was “clearly established.” See, e.g., O’Kelley v. Craig, 2019 U.S. App. LEXIS 20999, at *20 (11th Cir. July 16, 2019) (“In Moore, decided on October 15, 2015, we held that ‘an officer may not conduct a Terry-like stop in the home in the absence of exigent circumstances,’ consent, or a warrant. Thus, binding precedent clearly established, at the time of the encounter on October 24, 2015, that a seizure or entry within the home without a warrant or exigent circumstances violates the Fourth Amendment’s prohibition on unreasonable searches and seizures.”) (internal citations omitted).
In Bryan v. United States, the Third Circuit Court of Appeal found that a one (1) days difference between a decision and the subject incident was not sufficient to conclude that the law in question was “clearly established.” 913 F.3d 356, 363 (3d Cir. 2019) (“we conclude that the Whitted standard was not clearly established in the Third Circuit, or the First Circuit, on September 5 or 6. Within one or two days, neither Officer Ogg nor the St. Thomas officers could reasonably be expected to have learned of this development in our Fourth Amendment jurisprudence.”). The issue in Bryan was further complicated by the fact that the officer in question was in the First Circuit and the case being relied upon to set the “clearly established” law was from a Third Circuit case. Id. In finding that the law was not clearly established in that case, the Court in Bryan specifically “decline[d] to draw a bright line demarcating when a legal principle becomes ‘clearly established.’” Id. Bryan is a reasonably recent case and it does not appear that this specific issue has been discussed in any subsequent case citing Bryan.
Unfortunately, a survey of prior case law does not add much clarity to the question of precisely when, after a given decision, a law becomes “clearly established.” Garcia v. Miera, 817 F.2d 650, 657 n.10 (10th Cir. 1987) (finding that five months is sufficient time to be aware of Tenth Circuit decision); Schlothauer v. Robinson, 757 F.2d 196, 197-98 (8th Cir. 1985) (finding the defendant were officers immune from liability despite on-point Eighth Circuit decision decided eleven days prior to defendant’s actions and no Supreme Court case then on point); Schiff v. Williams, 519 F.2d 257, 263 (5th Cir. 1975) (Gee, J., specially concurring) (arguing that law was sufficiently established by Fifth Circuit opinion that had been decided two months prior to defendant’s actions). Nonetheless, as noted by the District Court in Bryan, the focus for analysis is whether the officer had “fair notice” that his alleged conduct was unlawful. Bryan v. United States, 2017 U.S. Dist. LEXIS 27522, at *40 (D.V.I. Feb. 28, 2017), citing, Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 598 (2004).
In that regard, while the O’Kelley decision seems to set forth a “tighter” conclusion regarding how much time should pass before a law is considered “clearly established” as compared to prior case law, it should be noted that the O’Kelley decision was based a motion for dismissal on the pleadings, not a motion for summary judgment. As such, it does not appear that the Court in O’Kelley undertook any meaningful analysis of whether and the extent to which the defendant officers had “fair notice that their conduct was unlawful” as this analysis would necessitate moving outside of pleading. Thus, O’Kelley can be read reasonably narrowly, that is, that the Court in O’Kelley found that nine (9) days was sufficient to state a plausible claim for relief based such as claim is, at least in part, premised on an argument that the law at the time of the incident was “clearly established” but nonetheless that the Court in O’Kelley did not intend to explicitly set a “bright line” rule that the passage of nine (9) days is always sufficient for the Court to conclude that a law was “clearly established.” There will undoubtedly be further case law analyzing both O’Kelley and Bryan, however, it appears this issue will continue to necessitate a fact specific analysis for the Courts moving forward.