Whether an officer can be fairly warned about the unconstitutionality of her conduct even when the facts of previous cases are not materially identical to the facts the officer confronts

QUESTION PRESENTED In Kennedy v. City of Ridgefield, the Ninth Circuit held that a police officer violates the Constitution when he discloses a police complaint to its subject and places the complainant “in danger that she otherwise would not have faced.” 439 F.3d 1055, 1063 (9th Cir. 2006). In this case, a police officer disclosed a domestic violence police complaint to its subject over the phone, even though the police officer knew that the complainant was in a room alone with the subject and could not escape. Applying a rigid standard that does not consider the circumstances faced by the officer, the Ninth Circuit concluded that Kennedy was not specific enough to fairly warn the officer in this case about the unconstitutionality of her conduct. Pet.App. 22a. This standard contrasts with the flexible fair-warning standard applied in the Fifth and Tenth Circuits, where, in cases outside of time-pressured decisions to use force, strict specificity is not necessary. Hughes v. Garcia, 100 F.4th 611, 620 n.1 (5th Cir. 2024); A.N. v. Syling, 928 F.3d 1191, 1199 (10th Cir. 2019). The question presented is, in a situation not involving a time-pressured decision to use force: Whether an officer can be fairly warned about the unconstitutionality of her conduct even when the facts of previous cases are not materially identical to the facts the officer confronts.