Supreme Court Will Soon Decide Whether To Reconsider Qualified Immunity

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.

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.

"The relevant facts were indisupted." 9th Cir. They shot teargas into the house and broke windows, and there were tear-gas-saturated possessions. The city paid her $900 for her damaged property. The appellate suit was for unreasonable search, unreasonable seizure, and conversion. It was her crazy, meth head, gang member, ex-boyfriend in the house. The grandmother made a 911 call and the cops responded.

There is always cause to be skeptical of these cases and the claims made. There is no reason to go after the individuals when the government is the one with the deep pockets — unless a suit against the government was a loser. These are suits for money. The city paid for the damages, $900.

The reason for the "clearly established" rule is ensure prior notice to officials of what they cannot do. The qualified immunity only protects the officials from civil liability, i.e., a lawsuit for damages. In a lawsuit for damages, the party with the deep pockets is the government entity. If it is not the State itself, but a municipality, there is no impediment. If the State or State agency is to be the named party, the the State must submit to being sued. For legal purposes, the State is a sovereign and can only be sued if it agrees to be sued.

Petition for Wtit of Cert filed by Petitioner Shaniz West.

QUESTION PRESENTED
Whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point caselaw. PARTIES TO THE PROCEEDINGS BELOW
Petitioner Shaniz West was the plaintiff in the United States District Court for the District of Idaho and the plaintiff-appellant in the United States Court of Appeals for the Ninth Circuit. Respondents Matthew Richardson, Alan Seevers, and Doug Winfield, all police officers with the Caldwell, Idaho police department, were defendants in the district court and defendants-appellants in the Ninth Circuit. The City of Caldwell, the City of Caldwell Police Department, and former Caldwell Police Chief Chris Allgood were all defendants in the district court. The complaint filed in the district court also named Does I–X, unidentified Caldwell police officers involved in destroying West’s home and belongings.
STATEMENT OF RELATED CASES
United States District Court (D. Idaho): West v. City of Caldwell, No. 16-cv-00359 (Oct. 18, 2019).
United States Court of Appeals (9th Cir.): West v. City of Caldwell, No. 18-35300 (July 25, 2019).

Brief in Opposition filed by Respondent Doug Winfield.

COUNTERSTATEMENT OF QUESTION PRESENTED
This Court has repeatedly held for decades, in decisions as recent as last year, that police officers (and other government officials) are entitled to qualified immunity unless their conduct violates a right that was “clearly established” at the time of the violation. For a right to be clearly established, there must be existing precedent placing the illegality of the conduct beyond debate. The test ishighly particularized:the facts of the prior case must becloselycomparable to those surroundingthe conduct at issue. Absent such a precedent,qualified immunity applies,except in the rare case of such egregious conduct that it would be obvious to any police officer that the conduct was illegal. With that legal framework, the question presented may be stated as follows:1.Petitioner consented to Respondents entering her houseto apprehend a suspect, who was a convicted felon, a gang member, and wanted on several felony warrantsfor violent crimes, and who reportedlywas armed, high on drugs,and possibly suicidal. After demands for the suspect to leave the house voluntarily went unanswered, Respondents used tear gas, causingproperty damage. There is no prior case with similar facts. Did Respondents violate a “clearly established” right by allegedly exceeding the scope of consent?

Reply Brief for Petitioner, Petitioner Shaniz West

REPLY BRIEF FOR PETITIONER
Respondents have provided no reason to deny the petition for certiorari. There is a longstanding split of authority over what counts as “clearly established” law for purposes of qualified immunity—both in gen-eral and specifically as applied to the sort of consent searches at issue in this case. And respondents present no persuasive explanation for why this case is not a suitable vehicle for resolving that split. The petition for certiorari should therefore be granted.

United States District Court (D. Idaho): West v. City of Caldwell, No. 16-cv-00359 (Oct. 18, 2019).

Blue font used to indicate what appears to have survived the District Court.

III. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff’s Motion for Summary Judgment (Docket No. 29) is DENIED.
2. Defendants’ Cross Motion for Summary Judgment (Docket No. 33) is GRANTED, in part, and DENIED, in part, as follows:
a. Plaintiff’s claims against the Caldwell Police Department and the individual defendants in their official capacity are dismissed. In this respect, Defendants’ Cross Motion for Summary Judgment is GRANTED.
b. Plaintiff did not fail to allege a proper constitutional violation as a matter of law. In this respect, Defendants’ Cross Motion for Summary Judgment is DENIED.
c. As to Detective Richardson, qualified immunity does not apply. In this respect, Defendants’ Cross Motion for Summary Judgment is DENIED.
d. As to SWAT Team Commander Seevers and SWAT Team Leader Winfield, qualified immunity applies to the extent their conduct is premised upon Plaintiff’s allegedly coerced consent. In this respect, Defendants’ Cross Motion for Summary Judgment is GRANTED. However, qualified immunity does apply to these individual Defendants to the extent their conduct is premised upon the development of the tactical plan itself and the tactical plan’s execution. In this respect, Defendants’ Cross Motion for Summary Judgment is DENIED.
e. As to Chief Allgood, qualified immunity applies. In this respect, Defendants’ Cross Motion for Summary Judgment is GRANTED.
f. Plaintiff’s Monell claims against the City of Caldwell are dismissed. In this respect, Defendants’ Cross Motion for Summary Judgment is GRANTED.
3. Plaintiff’s Motion in Limine to Prohibit Both the Display of Fabian Salinas’s Photograph and Any Mention of His Criminal History at Trial (Docket No. 24), is DENIED, without prejudice.
4. Plaintiff’s Motion to Strike Three Facts Relying on Sheriff Raney’s Expert Witness Disclosures in Support of Defendants’ Brief (Docket No. 35) is DENIED as moot.
5. Plaintiff’s Motion to Strike from Defendants’ Statement of Facts, Response Brief, and Cross Motion for Summary Judgment References to Information Police Knew but Did Not Share with Shaniz West (docket No. 36) is DENIED, as moot.

United States Court of Appeals (9th Cir.): West v. City of Caldwell, No. 18-35300 (July 25, 2019).

SUMMARY
Civil Rights
The panel reversed the district court’s order denying qualified immunity to police officers in an action alleging the officers violated plaintiff’s rights by coercing her consent to enter her house to search for a suspect and then by shooting tear gas canisters through the windows and causing extensive damage to the house. The panel assumed, without deciding, that plaintiff’s consent to Officer Richardson was not voluntary. The panel held that given the circumstances, including the amount of time that passed between Richardson’s threat to arrest plaintiff and his request for consent, the lack of voluntariness was not so clearly established such that Richardson would have known that plaintiff’s consent was not voluntary. Richardson was therefore entitled to qualified immunity on that claim.
The panel held that assuming the consent was voluntaryand defendants exceeded the scope of the consent by shooting tear gas into the house, they were still entitled to qualified immunity. The panel held that given that defendants thought they had permission to enter plaintiff’s house to apprehend a dangerous, potentially armed, and suicidal felon barricaded inside, it was not obvious, in the absence of a controlling precedent, that defendants exceeded the scope of plaintiff’s consent by causing the tear gas canisters to enter the house in an attempt to flush the suspect out into the open. Officers Seevers and Winefield were therefore entitled to qualified immunity on this claim. Addressing the reasonableness of defendants’ search, the panel held that given the unusual circumstances, the need for specificity of precedent in the Fourth Amendment context, and controlling cases establishing that officers can sometimes damage a home during a search without violating the occupant’s Fourth Amendment rights, this was not an obvious case in which to deny qualified immunity without any controlling precedent clearly establishing that defendants violated plaintiff’s rights. Defendants were therefore entitled to qualified immunity on this claim as well.
Dissenting in part, Judge Berzon stated that in her viewdefendants Seevers and Winfield were not entitled toqualified immunity on the scope of consent claim.
. . .
OPINION
GRABER, Circuit Judge:
This appeal arises from a SWAT team’s search of Plaintiff Shaniz West’s house to apprehend her former boyfriend, a gang member who had outstanding felony arrest warrants for violent crimes. Plaintiff sued for extensive damage to her house that resulted from the search. The district court denied qualified immunity to Defendants Matthew Richardson, Alan Seevers, and Doug Winfield, who are officers with the Caldwell, Idaho, police department. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND¹
[¹ The relevant facts are undisputed.]
On a summer afternoon in August 2014, Plaintiff’s grandmother called 911 to report that: Plaintiff’s former boyfriend, Fabian Salinas, was in Plaintiff’s house and might be threatening her with a BB gun; Plaintiff’s children also were in the house; and Salinas was high on methamphetamine. The grandmother warned the dispatcher that Plaintiff might tell the police that Salinas was not in the house.
The police knew that Salinas was a gang member. At the time, he had outstanding felony arrest warrants for several violent crimes. His criminal record included convictions for rioting, discharging a weapon, aggravated assault, and drug crimes. In addition, during a recent high-speed car chase, Salinas had driven his vehicle straight at a Caldwell patrol car, forcing the officer to swerve off the road to avoid a collision. The police also had information that Salinas possessed a .32 caliber pistol.
Four officers, including Richardson, responded to the 911 call. Richardson was familiar with Salinas’ criminal history. After arriving at Plaintiff’s house, Richardson called Plaintiff’s cell phone several times, but she did not answer. He then called Plaintiff’s grandmother, who repeated that Salinas was in Plaintiff’s house. She also said that Salinas’ sister had been at the house but had left when Salinas arrived. Richardson then called the sister, who confirmed that she had seen Salinas in Plaintiff’s house within the last 30 minutes, that he had a firearm that she thought was a BB gun, and that he was high on drugs. Richardson knocked on the front door of the house but received no response.
While the officers were discussing how to proceed, Sergeant Joe Hoadley noticed Plaintiff walking down the sidewalk toward her house. Hoadley and Richardson approached Plaintiff. Richardson asked Plaintiff where Salinas was; she responded that he “might be” inside her house. Richardson followed up: “Might or yes?” He told Plaintiff that Salinas had a felony arrest warrant, so if Salinas was in the house and she did not tell the police, she could “get in trouble” for harboring a felon. “Is he in there?” At that point, Plaintiff told Richardson that Salinas was inside her house, even though she did not know if he was still there; she had let Salinas into the house earlier in the day to retrieve his belongings, but she left the house while he was still there. Plaintiff felt threatened when Richardson told her that she could get in trouble if she were harboring Salinas, because Plaintiff’s mother had been arrested previously for harboring him.
After Plaintiff told Richardson that Salinas was in the house, Richardson walked away to confer with the other officers. They discussed whether to contact the SWAT team, but Plaintiff did not know that the SWAT team might become involved. Richardson returned to Plaintiff about 45 seconds later. He said: “Shaniz, let me ask you this. Do we have permission to get inside your house and apprehend him?” Plaintiff nodded affirmatively and gave Richardson the key to her front door. Plaintiff knew that her key would not open the door because the chain lock was engaged, but it is unclear from the record whether Richardson also knew that. After handing over the key, Plaintiff called a friend to pick her up, and she left in the friend’s car.
Hoadley then called the local prosecutor’s office and reported to the on-call prosecutor that Plaintiff consented to having officers enter her house to arrest a person who was subject to a felony arrest warrant. The prosecutor told Hoadley that the officers did not need to obtain a search warrant.
Hoadley next contacted Seevers, the SWAT Commander, to request assistance in arresting a felon who was barricaded inside a house and who might be armed and on drugs. Seevers, in turn, notified Winfield, the SWAT Team Leader, of the request. Seevers told Winfield that Salinas’ family reported that he was in Plaintiff’s house with a firearm (described as a BB gun) and that he was suicidal. Winfield contacted Hoadley for more information. Hoadley told him that Salinas had felony arrest warrants, that Salinas was a suspect in a gun theft and that not all the stolen firearms had been recovered, that Salinas was suicidal, and that all signs indicated that Salinas was in Plaintiff’s house. Hoadley also told Winfield that Plaintiff had given her consent for officers to enter her house to effect an arrest and that the on-call prosecutor had confirmed that the officers did not need a warrant.
The SWAT team met at the local police station to retrieve their tactical gear and establish a plan. Winfield, who created the plan, hoped to get Salinas to come out of the house without requiring an entry by members of the SWAT team. The plan had three stages: (1) contain Plaintiff’s house and issue oral commands for Salinas to come out; (2) if stage one failed, introduce tear gas into the house to force Salinas out; and (3) if stages one and two failed, enter and search the house for Salinas after the tear gas dissipated. Seevers reviewed and approved the plan, which conformed to commonly accepted police practices.
While the SWAT team prepared at the station, the officers at Plaintiff’s house continued to watch for Salinas and to update the SWAT team over the radio. One officer reported hearing movement in the house, and another said that he heard the deadbolt latch while he was standing near the front door.
The SWAT team arrived at Plaintiff’s house late in the afternoon. They made repeated announcements telling Salinas to come out of the house, but he did not appear. After waiting about 20 minutes, members of the team used 12- gauge shotguns to inject tear gas into the house through the windows and the garage door. After deploying the tear gas, the SWAT team continued to make regular announcements directing Salinas to come out of the house, but still he did not appear. After about 90 minutes the team entered the house. They used Plaintiff’s key to unlock the deadbolt on the front door, but they could not enter because of the chain lock.
They then moved to the back door, which they opened by reaching through the hole created earlier by shooting the tear gas through the back door’s window. The SWAT team searched the entire house without finding Salinas.
Plaintiff and her children could not live in the house for two months because of the damage caused by the search, including broken windows and tear-gas-saturated possessions. The City of Caldwell paid for a hotel for Plaintiff and her children for three weeks and paid her $900 for her damaged personal property. Plaintiff then filed this action, seeking damages and alleging claims for unreasonable search, unreasonable seizure, and conversion.
As relevant here, Defendants moved for summary judgment after the close of discovery, seeking qualified immunity. The district court denied Seevers and Winfield’s motion on the ground that it is “well-established that a search or seizure may be invalid if carried out in an unreasonable fashion.” The court denied Richardson’s motion on the ground that, if he had not obtained Plaintiff’s voluntary consent, the need for a warrant was clearly established. Defendants timely appealed.

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