Whether courts must determine that a government official was acting within the scope of his authority before proceeding to the qualified-immunity analysis

QUESTION PRESENTED In 2017, the Tenth Circuit acknowledged that “over half the circuit courts of appeal appear to have recognized a scope-of-authority exception to the protection of qualified immunity.” Stanley v. Gallegos, 852 F.3d 1210, 1214 (10th Cir. 2017). In 2019, the Tenth Circuit expressly departed from that emerging consensus. Cummings v. Dean, 913 F.3d 1227, 1245 (10th Cir. 2019). In the case below, the Eighth Circuit joined the Tenth in this departure and, as a result, granted qualified immunity to a county engineer who conducted traffic stops, in clear violation of his authority under Minnesota law. The question presented is: Whether, before proceeding to the qualified immunity analysis, courts must determine that a government official was acting within the scope of his authority.