Qualified immunity protects state officials from damages unless they violate “clearly established” law. Most federal circuits have held that the law can be clearly established either by binding precedent or by a well‑developed consensus of persuasive, out‑of‑circuit decisions. The Eleventh Circuit alone rejects that consensus about consensus; under its rule, only a prior Eleventh Circuit or Supreme Court decision can strip an officer of immunity.

The Eleventh Circuit’s rule has produced a uniquely sweeping immunity for the unconstitutional acts of state officials. In Gilmore v. Georgia, a panel of judges awarded this immunity to prison officials who strip-searched Clarissa Gilmore while she visited her husband in prison. The court acknowledged that the officers had no reasonable suspicion of Gilmore and that they violated their own regulations by searching her. The court further found—in line with nine other courts of appeals—that the officers violated the Constitution. Nevertheless, the Eleventh Circuit decided that it could not consider precedent from other circuits to “clearly establish” the law. Because no case within the Eleventh Circuit had previously considered a suspicionless strip-search of a prison visitor, the officers were granted immunity.

Now the full Eleventh Circuit is reconsidering the case en banc, and the Cato Institute and National Police Accountability Project have filed an amicus brief asking the court to overturn its erroneous rule. Our brief argues that decades of experience in every other circuit proves the workability of a “robust consensus” test. Adopting this rule would promote consistency without meaningfully reducing fair notice for police officers in the line of duty.

The courts of appeals that have adopted the robust consensus rule have also coalesced around predictable guideposts to determine when a consensus clearly establishes the law. For example, district court decisions and appellate dicta are generally insufficient to create clearly established law. Published decisions carry more weight than unpublished decisions, but in-circuit unpublished decisions finding conduct constitutional can dilute the force of out-of-circuit published opinions holding it unconstitutional. When a circuit split exists, the issue is unclear in undecided circuits. These guideposts and more demonstrate that courts can intelligently decide when an out-of-circuit consensus is sufficient to overcome qualified immunity. Importantly, the consensus in Gilmore is not close: All ten circuits to consider suspicionless strip searches of prison visitors have found them to be unconstitutional.

The robust consensus rule also promotes consistent application of the law. A persuasive consensus between courts of appeals can be recognized across the nation; the consensus does not vary across state lines. Because many police officers move between states, looking to a persuasive national consensus makes liability rules more predictable for the most litigation-prone officers.

Concerns that officers would be forced to monitor far‑flung precedents are overstated. Line officers rarely read judicial opinions at all; the relevant audience is city attorneys and agency leadership. When every appellate court to opine has declared conduct unconstitutional, any competent attorney would warn clients accordingly. In those circumstances, qualified immunity’s notice function is fully satisfied.

The Eleventh Circuit should adhere to the consensus about consensus and allow Gilmore to have her day in court.