Police, The Fourth Amendment, Qualified Immunity


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Sent from my iPod

Written by Burgers Allday

March 9, 2017 at 5:49 pm

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Bye for now

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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

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9th Circuit Makes Questionable Evidentiary Ruling

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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

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

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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

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

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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

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Fifth Circuit uses “QI” as an abbrevation for “qualified immunity”

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As reg readers know, (royal) we love the abbreviation “qi” for “qualified immunity” here at the police4aqi blog.  This is the first time we can recall seeing the abbreviation in a court opinion:

Cooper v. Brown, Court of Appeals, 5th Circuit 2016

In the opinion, the court found that the policeman (Officer Lynn Brown, employer not given in the opinion) may have let his K9 unit chew too long on a compliant arrestee’s leg.  No qi.

Written by Burgers Allday

January 2, 2017 at 8:56 am

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Saucier v. Katz strikes again

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As many of you know, Saucier v. Katz is the SCOTUS case that says police officers are given qualified immunity (qi) is their action do not violate “clearly established law,” which means that there have to be prior case(s) involving similar conduct by other police officers, where a court held that a Fourth Amendment (4A) violation was committed in those prior case(s).

When one stops to think about this it is deeply problematic.  How can police conduct ever be established as unConstitutional if there has to be a pre-existing case establishing the behavior as unConstitutional before a case can get beyond the qi stage?

One possible answer is that criminal cases where court find 4A violations can be used as “clearly established law” for purposes of avoiding qi and holding police accountable.  However, this answer raises a couple of problems.  One problem is that 4A law will be made and refined using cases where the asserter of 4A rights is almost always going to be a guilty criminal.  In theory, this should not affect how courts will make and refine 4A rights over time, but . . . I mean  . . . let’s get real!  4A rights are going to end up much smaller if the definition of 4A rights is made exclusively in the shadow of criminals, rather than innocent people, who have their putative 4A rights violated.

Another problem with establishing and refining 4A rights solely in the context of criminal cases is that some bad police behavior will seldom, if ever, occur in the context of a criminal case.  This point is demonstrated by a new Tenth Cirtcuit opinion in Aldaba v. Pickens (10th Circuit 2016).  In this case, a medical patient in a hospital was resistive and uncooperative because of chemical imbalances caused by his illness.  Police officers were called, and they tasered the unruly patient and held him so that he could be injected with sedative.  Between the tasering, the injection and his infirm state, the patient died on the spot and his survivors sued police in a civil case.  Initially, the Tenth Circuit denied qi to the police, but, last year, the U.S. Supreme Court made the Tenth Circuit have a “do-over” with more rigorous consideration of Saucier.  On remand, when considering clearly established law regarding what kind of electroshock force can be used against medical patients (as opposed to criminals), the Tenth Circuit decided, in the linked opinion, that there were no prior similar cases, so qi for the police and no award for the survivors.

This result of no liability for excessive force in subduing unruly medical patients will presumably be repeated in case after case until either the end of time, or until the law has the good sense to reverse Saucier.  As of now, there is no jurisprudentially practical way to establish 4A limits on police taser use against medical patients.

Written by Burgers Allday

December 24, 2016 at 12:30 pm

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