Judge CARDAMONE dissents by separate opinion.
LEVAL, Circuit Judge:
On consideration of the application for rehearing and rehearing in banc, the question was raised whether, under County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), we should have first declared whether plaintiff stated a claim for violation of a constitutional right, and only if he did so, decided whether defendants were entitled to qualified immunity because the right was not clearly established at the time of the alleged violation. A footnote in Sacramento describes this sequence of decisions as “[njormally” the “better approach.” Id. 118 S.Ct. at 1714 n. 5.
In explaining this approach, the Court pointed out that unless the constitutional issue could arise in a circumstance where qualified immunity is not a defense-in a suit to enjoin future conduct, in an action against a municipality, or in the litigation of a suppression motion in a criminal ease-the constitutional issue might repeatedly evade decision. As a result, if courts always avoided the constitutional issue by repeatedly dismissing suits on the basis of [246]*246the defendants’ immunity, “standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals.” Id.
We recognize the wisdom of the Supreme Court’s exhortation. Without doubt, in certain fact patterns allegations of unconstitutional conduct by state officers might repeatedly and indefinitely escape review. If the challenged conduct occurs spontaneously and inflicts harm on the victim without warning, potential victims would have no opportunity to sue for injunctive relief. A retrospective action for damages cannot be brought against a state under § 1983, because a state is not subject to suit under the act. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). And, if the conduct is by municipal officers but is not a part of a municipal policy or practice, then under Monell v. Department of Social Servs., 436 U.S. 658, 690-61, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), an action for damages also cannot be brought against the municipality. As a result, in some cases, the only available defendants would be individual officers who could assert their qualified immunity in repeated suits so long as courts had not put them on notice of the illegality of their conduct. If the questioned conduct was not a part of the collection of evidence for a criminal case, the victims would also have no opportunity to cause judicial review through a motion.to suppress. Official conduct in such cases might thus indefinitely escape judicial appraisal if the courts addressed only the issue of immunity. Neither state officials nor the public would receive judicial guidance on the lawfulness of injurious official practices.
Similarly, even where plaintiffs can have their constitutional claims adjudicated, plaintiffs may effectively be limited to state courts because of the Rooker-Feldman or Younger doctrines or other rules of federalism. See Wilkinson v. Russell, 182 F.3d 89, 106 (2d Cir.1999). The consequence would be that such complaints would indefinitely escape federal court review (except in the tiny number of cases heard by the Supreme Court on review of a state’s highest court). The Supreme Court has expressed the view, however, that “the very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights.” Patsy v. Board of Regents, 457 U.S. 496, 503, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) (internal quotations and citations omitted).
Those considerations undoubtedly argue in favor of a federal court’s reaching the constitutional question in a suit brought under § 1983, notwithstanding the obligation to dismiss by reason of qualified immunity. On the other hand, the circumstances that favor reaching the constitutional issue are not always present. And there are powerful arguments against reaching out in dictum to establish new constitutional rights in circumstances where that reasoning plays no role whatsoever in the disposition of the action.
First, the Supreme Court has for generations warned against reaching out to adjudicate constitutional matters unnecessarily. See, e.g., Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905); Liverpool, N.Y. & Philo, Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885). It is a “fundamental and longstanding principle of judicial restraint [that] courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). Under our system of constitutional government, we generally prefer some prolongation of uncertainty over unnecessary, hasty resolution of constitutional questions.
[247]*247Furthermore, where there is qualified immunity, a court’s assertion that a constitutional right exists would be pure dictum. See Wilkinson v. Russell, 182 F.3d at 112 (Calabresi, J., concurring). It would play no role in supporting the action taken by the court — the dismissal of the case by reason of qualified immunity. Such dictum would, of course, not be binding in future cases. See Seminole Tribe v. Florida, 517 U.S. 44, 67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (“When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.”); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257 (1821) (Marshall, C.J.) (“It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.”).
As is often the case with dictum, our declaration of a new constitutional right would run a high risk of error. Judges risk being insufficiently thoughtful and cautious in uttering pronouncements that play no role in their adjudication. Furthermore, parties may do an inadequate job briefing and presenting an issue that predictably will have no effect on the outcome of the case.
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Judge CARDAMONE dissents by separate opinion.
LEVAL, Circuit Judge:
On consideration of the application for rehearing and rehearing in banc, the question was raised whether, under County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), we should have first declared whether plaintiff stated a claim for violation of a constitutional right, and only if he did so, decided whether defendants were entitled to qualified immunity because the right was not clearly established at the time of the alleged violation. A footnote in Sacramento describes this sequence of decisions as “[njormally” the “better approach.” Id. 118 S.Ct. at 1714 n. 5.
In explaining this approach, the Court pointed out that unless the constitutional issue could arise in a circumstance where qualified immunity is not a defense-in a suit to enjoin future conduct, in an action against a municipality, or in the litigation of a suppression motion in a criminal ease-the constitutional issue might repeatedly evade decision. As a result, if courts always avoided the constitutional issue by repeatedly dismissing suits on the basis of [246]*246the defendants’ immunity, “standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals.” Id.
We recognize the wisdom of the Supreme Court’s exhortation. Without doubt, in certain fact patterns allegations of unconstitutional conduct by state officers might repeatedly and indefinitely escape review. If the challenged conduct occurs spontaneously and inflicts harm on the victim without warning, potential victims would have no opportunity to sue for injunctive relief. A retrospective action for damages cannot be brought against a state under § 1983, because a state is not subject to suit under the act. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). And, if the conduct is by municipal officers but is not a part of a municipal policy or practice, then under Monell v. Department of Social Servs., 436 U.S. 658, 690-61, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), an action for damages also cannot be brought against the municipality. As a result, in some cases, the only available defendants would be individual officers who could assert their qualified immunity in repeated suits so long as courts had not put them on notice of the illegality of their conduct. If the questioned conduct was not a part of the collection of evidence for a criminal case, the victims would also have no opportunity to cause judicial review through a motion.to suppress. Official conduct in such cases might thus indefinitely escape judicial appraisal if the courts addressed only the issue of immunity. Neither state officials nor the public would receive judicial guidance on the lawfulness of injurious official practices.
Similarly, even where plaintiffs can have their constitutional claims adjudicated, plaintiffs may effectively be limited to state courts because of the Rooker-Feldman or Younger doctrines or other rules of federalism. See Wilkinson v. Russell, 182 F.3d 89, 106 (2d Cir.1999). The consequence would be that such complaints would indefinitely escape federal court review (except in the tiny number of cases heard by the Supreme Court on review of a state’s highest court). The Supreme Court has expressed the view, however, that “the very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights.” Patsy v. Board of Regents, 457 U.S. 496, 503, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) (internal quotations and citations omitted).
Those considerations undoubtedly argue in favor of a federal court’s reaching the constitutional question in a suit brought under § 1983, notwithstanding the obligation to dismiss by reason of qualified immunity. On the other hand, the circumstances that favor reaching the constitutional issue are not always present. And there are powerful arguments against reaching out in dictum to establish new constitutional rights in circumstances where that reasoning plays no role whatsoever in the disposition of the action.
First, the Supreme Court has for generations warned against reaching out to adjudicate constitutional matters unnecessarily. See, e.g., Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905); Liverpool, N.Y. & Philo, Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885). It is a “fundamental and longstanding principle of judicial restraint [that] courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). Under our system of constitutional government, we generally prefer some prolongation of uncertainty over unnecessary, hasty resolution of constitutional questions.
[247]*247Furthermore, where there is qualified immunity, a court’s assertion that a constitutional right exists would be pure dictum. See Wilkinson v. Russell, 182 F.3d at 112 (Calabresi, J., concurring). It would play no role in supporting the action taken by the court — the dismissal of the case by reason of qualified immunity. Such dictum would, of course, not be binding in future cases. See Seminole Tribe v. Florida, 517 U.S. 44, 67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (“When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.”); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257 (1821) (Marshall, C.J.) (“It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.”).
As is often the case with dictum, our declaration of a new constitutional right would run a high risk of error. Judges risk being insufficiently thoughtful and cautious in uttering pronouncements that play no role in their adjudication. Furthermore, parties may do an inadequate job briefing and presenting an issue that predictably will have no effect on the outcome of the case. A governmental official who knows the suit against him must be dismissed by reason of qualified immunity because the asserted right was not clearly established may have little incentive to contest vigorously the constitutional issue. This is all the more likely where the challenged conduct occurs in a nonrecurring fact pattern, so that the claimed right is not likely to be asserted again against the same defendant. A court may therefore be swayed by the plaintiffs forceful assertion of a constitutional right where a more vigorous and thoroughly researched defense might have showed that the claim is unwarranted. Adjudication in such a case is unreliable because the presentation lacks the “concrete adverseness ... upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
The odd status of declarations of constitutional rights in dictum will likely cause further serious problems. District courts and courts of appeals will declare new constitutional rights as a part of a judgment in favor of the government defendants. The government defendants, as the prevailing parties, will have no opportunity to appeal for review of the newly declared constitutional right in the higher courts. If those government actors defer to the courts’ declarations and modify their procedures accordingly, new constitutional rights will have effectively been established by the dicta of lower court without the defendants having the right to appellate review.1 Only by defying the views of the lower court, adhering to practices that have been declared illegal, and thus inviting new suits will the state officials be able to ensure appellate review of lower court declarations of the unconstitutionality of official conduct. Thus, officials may often be placed in the untenable position of complying with the lower court’s advisory dic-[248]*248turn without opportunity to seek appellate review, or appearing to defy the lower court’s assertion and thus exposing themselves to a risk of punitive damages.
Needless to say, if the Supreme Court’s discussion in Sacramento is a holding that requires deciding on the claimed constitutional right in all cases, we are bound to follow it even if we think it unwise. However, the Supreme Court carefully avoided saying that the procedure should always be followed. To the contrary, it said that harm would result from “always ” doing the contrary. The Court’s assertion that consideration of the constitutional question is “[n]ormally” the “better approach” implies that such consideration is not always the “better approach.”2 The Court’s cautious language no doubt reflects its awareness of the difficulties outlined above, and the fact that prolonged uncertainty, which was the Court’s primary motivating concern, is not always a threat. In many instances, the conditions that can lead to prolonged uncertainty through repeated reliance on qualified immunity are not present.
Furthermore, it seems to us of great significance that the Court placed the tentatively worded suggestion in a footnote-scarcely the placement one would expect had the Court intended to command the lower courts to abandon a widespread practice and a generally recognized precept of avoiding unnecessary constitutional adjudication.3 In joining the Court’s opinion, Justice Breyer stated that the Court’s precedents “should not be read to deny lower courts the flexibility, in appropriate cases, to decide § 1983 claims on the basis of qualified immunity, and thereby avoid wrestling with constitutional issues that are either difficult or poorly presented.” Id. 118 S.Ct. at 1723 (Breyer, J., concurring). The Eleventh Circuit in Santamorena v. Georgia Military College, 147 F.3d 1337, 1343-44 (11th Cir.1998), interpreted the Supreme Court’s words to mean that courts may, in appropriate cases, go directly to the qualified immunity issue. See also Stuto v. Fleishman, 164 F.3d 820, 825 (2d Cir.1999) (describing “preference” of Sacramento as “nonman-datory”); Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir.1998) (describing “preference”). We share this understanding.
We recognize that since Sacramento, the Supreme Court has twice stated that, where the defendant raises qualified immunity as a defense, a court “must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.” Wilson v. Layne, 526 U.S. 603, -, 119 S.Ct. 1692, 1697, 143 L.Ed.2d 818 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, -, 119 S.Ct. 1292, 1295, 143 L.Ed.2d 399 (1999)) (emphasis added). However, Wilson and Conn both relied on Sacramento, and neither purported to abandon the measured position adopted in that decision. The opinions in Wilson and Conn were both also joined by Justice Breyer, who expressly stated in Sacramento that courts need not invariably decide the merits before reaching qualified immunity. And, as described below, both cases also provided sound reasons for reaching the merits. We do not understand Wilson and Conn, to have, intentionally but without explanation, abandoned the carefully modulated position taken in Sacramento and adopted [249]*249instead a rigid rule requiring federal courts to express advisory constitutional opinions in every case governed by qualified immunity.
Our understanding of the Supreme Court’s guidance is that lower courts must be mindful of factors and circumstances that often justify addressing the merits of constitutional claims, even though qualified immunity would supply a sufficient ground for decision. On our understanding, the principal concern that justifies addressing the constitutional question, in a suit which in any event must be dismissed, is the likelihood that the question will escape federal court review over a lengthy period.
Another factor that may favor reaching the merits is the egregiousness of the conduct that is challenged. When a constitutional violation is especially outrageous, but the right is not yet clearly established, the public interest in clarifying the law is much greater than in cases where important interests weigh on both sides of the balance. See Wilkinson, 182 F.3d 89, 112 (Calabresi, J., concurring) (noting that declaration of right in dictum “place[s] government officials on notice that they ignore such ‘probable’ rights at their peril”). A related factor is the ease of the decision. For a judiciary that is already heavily burdened with cases it must decide,4 offering an unnecessary but simple solution to an easy problem is better justified than undertaking unnecessarily to untangle a difficult, complex issue. Careful and thorough briefing, more often available to the Supreme Court than the lower courts, can similarly reduce the peril of rendering an advisory ruling asserting (or denying) an important constitutional right. And, other things being equal, where defendants are entitled to qualified immunity, it is more consistent with traditional principles of restraint to reach the merits when the constitutional right in question does not exist than when it does; in the former circumstance, the finding of no right is the holding, and the court is not declaring new constitutional rights in dictum that cannot be appealed.5
Various factors in Conn and Layne strongly favor the Supreme Court’s decision to reach the merits in those cases. In Conn, the Court unanimously rejected the assertion that a lawyer’s “right to practice his profession” encompassed a right not to be searched while his client was testifying before a grand jury. Conn, 119 S.Ct. at 1295. Because the Court rejected the putative right, its constitutional decision was not dictum. As there was “no support in [the] cases” for the asserted right, id., the decision was not difficult. In Wilson, the Court found that police officers’ gratuitous invitation of reporters and photographers to participate in the search of a private home violated the Fourth Amendment, even though the right was not clearly established. See 119 S.Ct. at 1699-1700. The victims of such a search have no prior [250]*250notice and thus have no reason to seek an injunction against the invasion in advance. Furthermore, the decision on the merits was straightforward and unanimous.
In this case, the key motivating factor cited in Sacramento is absent. The constitutional question raised here is the validity of a prison regulation affecting the conduct of disciplinary proceedings. There is no reason to believe that the questioned regulation will repeatedly, or over a substantial time, escape judicial review in federal court by reason of qualified immunity. Whenever the regulation is applied, adequate opportunity will arise to challenge it in federal court. Because qualified immunity is not a defense in injunctive actions, a prisoner can seek injunctive relief while the disciplinary hearing is pending, or indeed at any time while serving the punishment arising out of the hearing. Such a suit would require adjudication of the constitutional question that we do not answer here. Accordingly, the danger of sustained uncertainty that concerned the Court in Sacramento is not present in this case.6
Furthermore, whatever result courts may reach when they adjudicate the constitutionality of the regulation at issue, we are confident the regulation does not represent the sort of egregious or outrageous offense that should compel us to warn the State of New York of its unconstitutionality in unappealable dictum.
Because the constitutional question in this case is easily amenable to adjudication in a suit for injunctive relief by any adversely affected prisoner, and because this does not represent an instance of egregious, outrageous conduct, we reaffirm our decision to rely on the lack of clearly established law to dismiss Horne’s action on grounds of qualified immunity.7