Cite as: 533 U. S. 194 (2001)
Ginsburg, J., concurring in judgment
Graham inquiry, i. e., to consider initially whether the parties' submissions, viewed favorably to the plaintiff, could show that the officer's conduct violated the Fourth Amendment. Ante, at 201. If the plaintiff prevails on that "threshold question," ibid., the trial court is then to proceed to the "dispositive [qualified immunity] inquiry," asking "whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted," ante, at 202.4
In the instant case, however, the Court finds that procedural impediments stop it from considering first "whether a constitutional right would have been violated on the facts alleged." Ante, at 200, 207-208. The Court therefore "assume[s] a constitutional violation could have occurred," ante, at 207—i. e., it supposes a trier could have found that officer Saucier used force excessive under Graham's definition. Even so, the Court reasons, qualified immunity would shield Saucier because he could have "concluded he had legitimate justification under the law for acting as he did." Ante, at 208.
Skipping ahead of the basic Graham (constitutional violation) inquiry it admonished lower courts to undertake at the outset, the Court failed to home in on the duplication inherent in its two-step scheme. As lower courts dealing with excessive force cases on the ground have recognized, however, this Court's decisions invoke "the same 'objectively reasonable' standard in describing both the constitutional test of liability [citing Graham, 490 U. S., at 397], and the . . . standard for qualified immunity [citing Anderson v. Creighton, 483 U. S. 635, 639 (1987)]." Roy, 42 F. 3d, at
4 The Court's observation that "neither respondent nor the Court of Appeals ha[s] identified any case demonstrating a clearly established rule prohibiting the officer from acting as he did," ante, at 209, must be read in light of our previous caution that "the very action in question [need not have] previously been held unlawful" for a plaintiff to defeat qualified immunity, Anderson v. Creighton, 483 U. S. 635, 640 (1987).
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