Is qualified immunity an affirmative defense that state actors must assert, as nine circuits hold, or may federal appellate courts raise the defense sua sponte, as three circuits hold?

question presented is: Is qualified immunity an affirmative defense that state actors must assert, as nine circuits hold, or may federal appellate courts raise the defense sua sponte, as three circuits hold? In Pearson v. Callahan, 555 U.S. 223, 236 (2009), the Court announced discretion to proceed directly to the “clearly established” prong of the qualified immunity analysis. A chorus of federal jurists has criticized this approach, which may “leave standards of official conduct permanently in limbo.” Camreta v. Green, 563 U.S. 692, 706 (2011). The second question presented is: Should the Court reconsider Pearson in light of empirical evidence that bypassing the constitutional prong results in a constitutional catch-22, increasingly leaving pressing questions unanswered simply because they have not been answered before?