at the time in question, we see no useful purpose in pursuing[the first step of Saucier].” The majority’s reasoning is deficient in the context of qualified immunity. The first step of Saucier asks whether, viewing the evidence in the light most favorable to the allegedly injured party, the record establishes a constitutional violation. 533 U.S. at 201, 121 S.Ct. 2151. Nothing about this inquiry requires this court to resolve factual disputes in the record. In fact, the Supreme Court has clarified that the first step of the Saucier inquiry in no way requires courts to assume a fact-finding capacity; rather, a court generally just adopts the version of the facts set forth by the party challenging immunity. Scott v. Harris, 550 U.S. 372, 381 n. 8, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (<HOLDING>). Thus, contrary to the majority’s reasoning,
recognizing that whether a duty exists is a question of law for the courts holding that the dispositive question in the first step of saucier  whether those facts establish a constitutional violation  is a pure question of law recognizing but finding inapplicable pure question of law exception to doctrine of exhaustion holding that generally the question of waiver and estoppel is a question of fact holding that the question of whether an existing constitutional right is infringed is strictly a question of law