Police, The Fourth Amendment, Qualified Immunity

District Court reversed in Alexander v. Round Rock!

leave a comment »

I posted at length, criticizing the Magistrate Judge Mark Lane’s opinion and decisions in Alexander v. Round Rock.

Happily, the Fifth Circuit has now reversed most of those decisions on appeal, including the decision on “reasonable suspicion,” which was a primary focus of my earlier criticisms of Magistrate Judge Lane’s opinion.

Looking back at my blog entry on the district court case, I owe an apology to plaintiff’s counsel because I accused plaintiff’s counsel of not raising retaliation claims.  The appellate court opinion makes it clear that those issues were raised and preserved for appeal.  Sadly, the appellate court gave the popo qualified immunity on the retaliation claims.  Here is a post at the Volokh Conspiracy blog criticizing the award of qi on the 5A retaliation claim.  I also believe that qi was inappropriate on the 1A retaliation claim because police should be considered to be on notice that retaliation for an exercise of free speech always was, is, and hopefully always will be unConstitiutonal.  Given that notice, I believe that there should be no qualified immunity available on 1A retaliation claims and categorically so, by the very logic of the immunity itself.

Written by Burgers Allday

April 23, 2017 at 8:09 am

Posted in Uncategorized

Link to headnotes for a couple interesting police 4A QI cases

leave a comment »

Part of the reason I am on hiatus is that other blogs are doing a great job covering the cases I would normally cover here.  This week there were three police 4A QI type cases I would have blogged, but they are all very capably synopsized at this Volokh Conspiracy (VC) post:


Written by Burgers Allday

April 4, 2017 at 6:06 am

Posted in Uncategorized


leave a comment »

Sent from my iPod

Written by Burgers Allday

March 9, 2017 at 5:49 pm

Posted in Uncategorized

Bye for now

with one comment

I am going to take a break from this blog.  Couple reasons for that:

  •  other blogs are doing a pretty good job covering the kind of cases that I used to have “all to myself”
  • gotten busy in the real world with family and professional issues

Wanted to thank my readers.  I don’t think there were many of you, but I know there were some, and that is gratifying to me.  If you want to get in touch with me for some reason:

creativityistheengine (at) gmail.com



The way I found cases to blog about was to just do a GOOGLE Scholar search using the following search string:  “fourth amendment” “qualified immunity” (hence the name, 4aqi).  Every week there are plenty of new cases to read.  I would go so far as to recommend that interested non-lawyers try this because most 4aqi court opinions discuss the facts, and factual disputes, separately from the legal mumbo jumbo, and the fact sections are usually clear and coherent (although they can be slanted and manipulative, too).  The point is, you don’t have to be a lawyer to at least know what happened “on the street” in most of these cases.  To me it is always more interesting and relevant than my local newspaper.

Other websites that cover 4aqi stories:

Radley Balko’s The Watch blog at WaPo  (Radley is the best and has been for a long time)

Volokh Conspiracy (especially their federal court roundups that they started recently)

Fault Lines blog at Mimesis Law (various posts have different, often clashing, perspectives, which keeps it lively)

Cop Talk sub-forum in the Glock Talk forums (best place for a rank and file policeman’s perspective — it is not always pretty)

AmIFreeToGo forum on Reddit (used to be better)


Written by Burgers Allday

March 6, 2017 at 8:42 am

Posted in Uncategorized

9th Circuit Makes Questionable Evidentiary Ruling

leave a comment »

Case:  Willis v. City of Fresno, Court of Appeals, 9th Circuit 2017

The district court abused its discretion by admitting evidence of Willis’ marijuana use. Defendants presented no evidence indicating that Willis had consumed marijuana in the 72 hours before the shooting and no evidence linking Willis’ marijuana use to his disputed behavior. The error in admitting this evidence, however, was harmless. Because defendants presented no evidence of a causal relationship between Willis’ marijuana use and his behavior on the night in question, no reasonable probability exists that the jury relied on this evidence in finding Willis 80% contributorily negligent.

Criticism:  One thing that bothers me in a lot of legal cases is when courts effectively require a party to prove a thing that seems likely on its face, but would be impossible to prove by any evidence that might possibly be collected by any reasonable and/or legal methods of evidence collection.  The above quote is an example of this problem.  How would the plaintiffs obtain evidence showing that the jury considered the inadmissible evidence of non-temporally proximate mj use in coming up with its contributory negligence figures?  Even if plaintiff could subpoena the jurors, I don’t think they would get, or could compell, any answers on this issue from the jurors.

Written by Burgers Allday

March 6, 2017 at 8:37 am

Posted in Uncategorized

May v. CITY OF NAHUNTA, Court of Appeals, 11th Circuit 2017

with 2 comments

Link to new 11C opinion

Link to police4aqi blog entry on last year’s 11C opinion

As regular readers may recall, a police officer forced an exhausted and frustrated woman providing elder care to a relative to go for a mental health check on pretty flimsy grounds. Last year, the Eleventh Circuit held that it was okay to force the woman to go for a mental health check, but that the method by which the woman was forced to change clothes was unreasonable for 4A purposes.

This new opinion, pursuant to a rehearing by the Eleventh Circuit, doesn’t change anything significant that I, Burgers, can detect (they took the 2016 opinion off of Google Scholar — don’t like that).

In the new opinion, the Eleventh Circuit worries about the “chilling effect” on police if they can’t take any person for a forcible mental health examination on even (what I consider to be) flimsy grounds.  I have three responses:

  1.  I would prefer to chill police conduct when it comes to ordering mental health examinations for punitive reasons — which appears to be what happened here.  I understand that courts don’t like to go into intent issues when it comes to police conduct, but, when police are allegedly acting for medical reasons (as opposed to law enforcement reasons), then I think that courts should go into subjective good faith as to whether the officer was truly motivated by medical concerns.
  2. In this case there was an EMT on scene.  The police should have been required to ask the EMT and deferred to his wishes in that situation.  EMT knows medicine better than the cops, after all.  Assuming the police officers present didn’t ask the EMT whether plaintiff should be medically detained, then I think that is evidence that they didn’t care about plaintiff’s medical needs (or lack thereof).
  3. Both this year’s and last year’s opinions ignore the great harms that can arise of a forcible medical health detention even if the detainee is quickly declared, by the medical professionals, to be fine to be out and about in the world (as plaintiff was in this case).  People can lose jobs, etc.  The opinion in this case basically makes it impossible to “comply with the police and recover later in court” when a police officer decides to do a punitive medical detention in absence of any authority to punish under the criminal law.

Written by Burgers Allday

January 29, 2017 at 12:10 pm

Posted in Uncategorized

Another case that shows why dynamic entry raids need to be made with body cams

leave a comment »

Case:  Hicks v. Oglesby, Dist. Court, SD West Virginia 2016

What happened:  Police busted into a mobile home and immediately shot the occupant dead because he was holding a gun.

Criticism:  It is not fair to the dead man to decide this case without seeing what the police announcement really looked and sounded like.  Absent video evidence, there should at least be a trial so that the police officers can be cross-examined about the specifics of the alleged announcement.

Another criticism:  I think that courts should start requiring siren blasts and flashing lights during these sorts of raids.  Even if there was an announcement, and even if the victim heard the announcement, how was he to know that it really was the police and not bad people pretending to be policemen.  Colored flashing lights and a siren blast or two could really help people decide to drop their defensive weapon* during a dynamic entry raid.

* Of course this assumes that the slain person really was holding a gun, which allegation was established only by interested testimony in the case which is the subject of this post.

Written by Burgers Allday

January 5, 2017 at 4:35 am

Posted in Uncategorized