Whether a court may uphold a qualified immunity claim on the ground that qualified immunity had been granted in a prior case in which the 'impropriety' of the government official's conduct would be 'more apparent to most laypersons—as the panel did here— or whether this Court's 'clearly established' standard obligated the court of appeals to compare the facts of the case before it to the facts of other relevant precedents to determine whether the government official would have had fair notice that his conduct was unconstitutional

QUESTION PRESENTED A government official is not protected by qualified immunity from damages liability if the official “violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (2004). In determining whether a right is “clearly established,” the “salient question * * * is whether the state of the law * * * give[s] [a government official] fair warning that their alleged [conduct] * * * was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). The courts of appeals utilize conflicting standards to decide whether this “fair warning” standard is satisfied—a conflict that has deepened as a result of the Tenth Circuit’s ruling in this case. The question presented is: Whether a court may uphold a qualified immunity claim on the ground that qualified immunity had been granted in a prior case in which the “impropriety” of the government official’s conduct would be “more apparent to most laypersons”—as the panel did here— or whether this Court’s “clearly established” standard obligated the court of appeals to compare the facts of the case before it to the facts of other relevant precedents to determine whether the government official would have had fair notice that his conduct was unconstitutional.