Posted on 05/11/2020 12:29:52 PM PDT by voicereason
For the last several years, Cato has been leading the campaign to abolish qualified immunity — an atextual, ahistorical judicial doctrine that shields state officials from liability, even when they violate people’s constitutional rights. The most immediate practical goal of this campaign has been to convince the Supreme Court to hear one of the many cases calling for qualified immunity to be either narrowed or reconsidered outright. And over the last seven months, I’ve written several times about how the Court has indicated that it’s preparing to consider several qualified immunity cases, given the manner in which it has repeatedly rescheduled several cert petitions that have been fully briefed and ready for resolution since October of last year. My hypothesis at the time was that the Supreme Court was delaying resolution of these petitions so that it could consider them along with several other high-profile cases that also raised the same underlying question of whether qualified immunity should be reconsidered.
Now it would seem that prediction has been vindicated. Just today, the Supreme Court distributed thirteen* different qualified immunity cert petitions for its conference of May 15, 2020. This is obviously no coincidence, and it means that by the morning of Monday, May 18th, we will finally know whether the Justices are prepared to confront one of the most pernicious and legally baseless doctrines in the history of the Court.
Here’s the complete list of the thirteen different petitions that have been distributed for the May 15th conference. In most of these cases, Cato filed an amicus brief in support of the petition, and in many of them, we either helped coordinate or took the lead on a “cross‐ideological brief,” on behalf of a diverse alliance of organizations opposed to qualified immunity.
Baxter v. Bracey. In this case, Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. The ACLU filed a cert petition back in April 2019, asking whether “the judge-made doctrine of qualified immunity” should “be narrowed or abolished.” Cato filed a brief in support of the petition, and we also helped to coordinate the filing of a cross-ideological brief. This case was originally set to be considered all the way back on October 1, 2019, but it has been rescheduled five times since then. Now, it looks like the Court is finally prepared to resolve Mr. Baxter’s petition.
Brennan v. Dawson. In this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.” The cert petition in this case was filed on January 11, 2019, and asks the Court to “reign in the qualified immunity standard to … reflect the common-law roots of qualified immunity.”
Zadeh v. Robinson. In this case, the Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients.
Corbitt v. Vickers. This is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The plaintiffs in both Zadeh and Corbitt are now represented by Paul Hughes, who filed cert petitions on November 22, 2019, each of which asks “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.” Cato submitted briefs in both cases, this time taking the lead on the cross-ideological brief, whose signatories also included the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R Street, and the Second Amendment Foundation.
Kelsay v. Ernst. This is the case where the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The MacArthur Justice Center filed a cert petition on November 26, 2019. While the petition doesn’t ask the Court to reconsider qualified immunity outright, it does ask the Court to “take steps within the confines of current law to rein in the most extreme departures from the original meaning of Section 1983.” Cato filed a brief in support of this petition as well.
West v. Winfield. In this case, the Ninth Circuit granted immunity to police officers who bombarded an innocent woman’s home with tear-gas grenades. The homeowner had given the officers permission to enter her home to look for a suspect, but never consented to anything like the practical destruction of her home that resulted. Nevertheless, the court granted immunity on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that the homeowner had given. On January 16, 2020, the Institute for Justice filed a cert petition asking the Court to clarify and limit the scope of qualified immunity, and Cato filed a brief in support of this petition.
Jessop v. City of Fresno. In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” Neal Katyal filed a cert petition on behalf of Mr. Jessop on February 14, 2020, and Cato, joined by Americans for Prosperity, filed a brief in support of the petition.
Mason v. Faul. In this case, the Fifth Circuit granted immunity to a police officer who shot a man seven times in response to a 911 call. This is one of the rare cases in which qualified immunity was actually resolved at trial, rather than at the motion-to-dismiss or summary-judgment stage. At trial, the jury found that while Officer Faul’s shooting of Quamaine Mason was objectively unreasonable under the Fourth Amendment, Faul was nevertheless entitled to qualified immunity. The cert petition was filed on November 14, 2019, and it asks the Court to address the “confusion and uncertainty” in qualified immunity case law.
Cooper v. Flaig. In this case, the Fifth Circuit granted immunity to officers who killed an unarmed man in his parents’ home by tasing him nine times while he was having an acute mental-health episode. The cert petition was filed on February 5, 2020, and it explicitly asks whether the Court should “eliminate or significantly revise the judicially created doctrine of qualified immunity.”
Anderson v. City of Minneapolis. In this case, the Eighth Circuit granted immunity to 911 first responders who were alleged to have prematurely declared a 19-year-old dead of hypothermia, in violation of their own emergency protocols, thereby depriving him of what could have been life-saving medical assistance. The cert petition was filed on November 18, 2019, and it asks the Court to clarify the standards for determining “clearly established law,” especially in the context of the state-created danger doctrine.
Clarkston v. White. In this case, the Fifth Circuit granted immunity to a state education official who was alleged to have caused the denial of a charter school application in retaliation for remarks made by the school’s CEO about disciplinary practices. The cert petition was filed on March 3, 2020, and it asks the Court to clarify that qualified immunity should not apply when a constitutional right is clearly established and the only uncertainty in the case law is whether a particular individual can be sued for its violation.
Hunter v. Cole. Of all the qualified immunity cases going to conference on May 15th, this is one of only two in which the lower court denied immunity to the defendants. In this case, the Fifth Circuit denied immunity to an officer who shot a 17-year-old boy without warning. Although the boy was holding a gun, he had made no threatening gestures toward the officers and was facing away from them and unaware of their presence when he was shot. At the en banc stage, this case generated a lively discussion between several Fifth Circuit judges about whether qualified immunity should be reconsidered, which I discussed here. On December 9, 2019, the officer filed a cert petition, asking the Court to hold that his shooting of the teenage boy did not violate clearly established law.
Davis v. Ermold. The one other case in which the lower court denied immunity involves Kim Davis, the former Kentucky county clerk who refused to issue marriage licenses to same-sex couples in the wake of the Supreme Court’s landmark decision in Obergefell v. Hodges. Those couples sued Davis for violating their right to marry, and the Sixth Circuit denied immunity to Davis, finding that the plaintiffs had sufficiently alleged that she violated their clearly established constitutional rights. Davis’s cert petition was filed on January 22, 2020.
The fact that the Court sent all thirteen of these cases to conference on the same day — especially after repeatedly rescheduling many of them — is unmistakable evidence that the Justices are looking closely at the fundamental question of whether qualified immunity itself needs to be reconsidered. This is a question that Justice Thomas urged the Court to take up all the way back in 2017, and which Cato has been vigorously pushing since it launched its qualified campaign back in March of 2018. It is far past time for the Supreme Court to reconsider qualified immunity, and in less than three weeks, we’ll finally know whether the Court is prepared to take up that question.
Some states officials are abusing their authority
Later
ought to be able to go after them personally and their higher bosses.
i say pensions and 401ks are part of the assets to be considered as well as proper jail times
thugs are thugs, with or without badges. its a mindset
“Some states officials are abusing their authority”
Some? Most!
Double edged sword....tons of lefty lawers out there with chips on thier shoulder.
I’d prefer to see immunity eliminated for judges and parole board members who release known killers, rapists, gang members into the community to continue their carnage.
WTF?
‘Officials’ should be held to the highest standards in the land. They are being given public trust (although these days none of us trust them) and should be held accountable for all that they do.
Some always will.
This will be interesting if they do actually grant Cert. This is one of those areas of Constitutional law that Justice Thomas seems to have a bit of a blinder on. He’s long been in see-no-evil mode regarding this and other similar issues.
Jessop v. City of Fresno. In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.”
Mason v. Faul. In this case, the Fifth Circuit granted immunity to a police officer who shot a man seven times in response to a 911 call. This is one of the rare cases in which qualified immunity was actually resolved at trial, rather than at the motion-to-dismiss or summary-judgment stage. At trial, the jury found that while Officer Faul’s shooting of Quamaine Mason was objectively unreasonable under the Fourth Amendment, Faul was nevertheless entitled to qualified immunity.
Hunter v. Cole. Of all the qualified immunity cases going to conference on May 15th, this is one of only two in which the lower court denied immunity to the defendants. In this case, the Fifth Circuit denied immunity to an officer who shot a 17-year-old boy without warning. Although the boy was holding a gun, he had made no threatening gestures toward the officers and was facing away from them and unaware of their presence when he was shot.
In my not so humble opinion, all of the above are serious 'WTF?' cases. Only the last one appears to have been appropriately decided.
Instead of qualified immunity officials should potentially face more severe penalties for especially grievous unlawful actions.
For the last several years, Cato has been leading the campaign to abolish qualified immunity — an atextual, ahistorical judicial doctrine that shields state officials from liability, even when they violate people’s constitutional rights.
That is utter nonsense. Qualified immunity does not shield state officials who violate constitutional rights.
qualified immunity. (1877) Immunity from civil liability for a public official who is performing a discretionary function, as long as the conduct does not violate clearly established constitutional or statutory rights. — Also termed prima facie privilege. Cf. absolute immunity.
Black's Law Dictionary, 11th Ed.
A claim of qualified immunity fails if it is not within the scope of employment, or it violates clearly established constitutional or statutory rights.
At to look at one case in the article:
Jessop v. City of Fresno. In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” Neal Katyal filed a cert petition on behalf of Mr. Jessop on February 14, 2020, and Cato, joined by Americans for Prosperity, filed a brief in support of the petition.
QUESTION PRESENTEDWhether it is clearly established that the Fourth Amendment prohibits police officers from stealing property listed in a search warrant.
That is the only question presented by the Petition. Also from the Petition:
It effects a permanent dispossession of property for no law enforcement purpose whatsoever. U.S. Const. amend. IV. And the theft of property listed in a search warrant is especially “unreasona-ble.” It misappropriates property to which the government is entitled, impairs rather than aids the warrant’s execution, and replicates one of the very abuses that the Fourth Amendment was adopted to prevent.
This underscores the problem with the constitutional argument. The alleged misappropriation is from the Government. The instant the property was seized pursuant to a lawful warrant, it became Government property. Assuming arguendo there was a theft, stealing property from the Government would not violate the constitutional rights of the Plaintiff.
Jessop v. City of Fresno. In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” Neal Katyal filed a cert petition on behalf of Mr. Jessop on February 14, 2020, and Cato, joined by Americans for Prosperity, filed a brief in support of the petition.
This states, as though it were proven fact, that the police officers stole over $225,000. That is not at all a proven fact. Moreover, assuming they did commit a theft after seizing assets incident to a lawful search and seizure conducted pursuant to a warrant, it would be a common crime, and not a violation of constitutional rights of Plaintiff. The lawsuit seeks damages for violation of constitutional rights, not prosecution of an alleged crime.
In the Jessup v City of Fresno, S Ct 19-1021, Brief in Opposition to Petition for Certiorari (10 Apr 2020)
2.0 Argument2.1 No Theft Took Place.
The petitioners’ arguments (and those of the amici curiae who have sought leave to file briefs supporting the petition) all assume that the defendant officers in-deed stole petitioners’ property. The respondent City and officers emphasize that they do not concede this point. Respondents categorically deny that they stole petitioners’ property. (2ER:271; 3ER:486, 489; see Answering Brief, 9th Cir. Dkt. # 17, 90-92.) The record is replete with evidence indicating that the petitioners’ theft accusations are flimsy. For instance, petitioners allegedly discovered currency and coins were missing in September 2013. (2ER:164-165, 232.) At that time, they had legal representation. (2ER:221-222.) Yet they did not file suit until February 2015—after respondent officer Derik Kumagai was arrested for an unrelated incident. (2ER:37; 3ER:522.) The petitioners’ accusations that the amount of money the officers seized exceeded the amount disclosed as seized stem primarily from petitioner Jessop’s after-the-fact reconstruction of the amount of currency he believes was in his car when the officers searched it. (2ER:207-209.) Jessop contends that a coin collection he kept in a plastic tub—unappraised and uninsured—consisted of solid gold coins, and was worth six figures. (2ER:216-218.) He based his valuation on a list of coins he recreated from memory, a piece of paper containing some of the items, and an Internet search. (2ER:217-218.) This issue is ultimately immaterial to qualified immunity. As the Ninth Circuit ruled, even if petitioners’ accusations are credited for the purpose of argument, the respondent officers are entitled to qualified immunity. Pet. App. 8a-10a. But the issue matters to respondents. No argument they make should be taken as a concession that petitioners’ accusations have merit.
From the Opinion of the 9th Circuit Court, M. Smith, Circuit Judge:
We need not—and do not—decide whether the City Officers violated the Constitution. At the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant. For that reason, the City Officers are entitled to qualified immunity. . . .ANALYSIS
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “In determining whether an officer is entitled to qualified immunity, we consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014).
We have never before addressed whether the theft of property covered by the terms of a search warrant and seized pursuant to that warrant violates the Fourth Amendment. At the time of the incident, the five circuits that had addressed that question, or the similar question of whether the government’s refusal to return lawfully seized property violates the Fourth Amendment, had reached different results. Compare Case v. Eslinger, 555 F.3d 1317, 1330 (11th Cir. 2009), /i>Lee v. City of Chicago, 330 F.3d 456, 460–66 (7th Cir. 2003), Fox v. Van Oosterum, 176 F.3d 342, 349–51 (6th Cir. 1999), and United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992), with Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th Cir. 2004). . . .
The allegation of any theft by police officers—most certainly the theft of over $225,000—is undoubtedly deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, is not obvious. The split in authority on the issue leads us to conclude so. See Wilson, 526 U.S. at 618 (where “judges [] disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy”).
In the absence of binding authority or a consensus of persuasive authority on the issue, Appellants have failed to demonstrate that it was clearly established that the City Officers’ alleged conduct violated the Fourth Amendment. Accordingly, we hold that the City Officers are protected by qualified immunity against Appellants’ Fourth Amendment claim. . . .
II. Fourteenth Amendment
Appellants’ Fourteenth Amendment claim suffers the same fate. Appellants argue that the City Officers’ theft of their property violated their substantive due process rights under the Fourteenth Amendment. Assuming that to be true, however, the City Officers are entitled to qualified immunity because that right was not clearly established. We have not held that officers violate the substantive due process clause of the Fourteenth Amendment when they steal property that is seized pursuant to a warrant. The Seventh Circuit is the only circuit that has addressed the related question of whether the government’s refusal to return lawfully seized property to its owner violates the Fourteenth Amendment; it held that the substantive due process clause does not provide relief against such conduct. See Lee, 330 F.3d at 466–68. Because the City Officers could not have known that their actions violated the Fourteenth Amendment’s substantive due process clause, they are entitled to qualified immunity against Appellants’ Fourteenth Amendment claim.
That's the theory. The article presents a list of evidence that it is not the practice.
Surely you can see that shooting a kid in the back violates his constitutional rights? Stealing $225,000?
West v. Winfield. In this case, the Ninth Circuit granted immunity to police officers who bombarded an innocent woman’s home with tear-gas grenades. The homeowner had given the officers permission to enter her home to look for a suspect, but never consented to anything like the practical destruction of her home that resulted.
Interesting. I’ll be keeping an eye out for more coverage of this topic next week.
Doubt it will happen. Some of the conservative justices on the Court display little interest in curbing abuses in this area and leftist Kagan is currently in a phase of pretending to seriously care about stare decisis, even on causes the left cares about, because she’s trying to convince some of the weak conservatives (e.g. Roberts) to keep Roe v. Wade around.
the elimination of qualified immunity would be the greatest blow for liberty in over 100 years.
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