Police, The Fourth Amendment, Qualified Immunity

Judge Posner rejects “kettling” of protestors

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Case: VODAK v. CITY OF CHICAGO, 639 F.3d 738 (7th Cir. 2011)

What happened: Chicago police allowed an anti-war protest march (which normally would have required a permit). After the protest march started, there were some public order problems, mostly traffic problems. Consequently, police decide to send the marchers back to the origin point of the march. However, several marchers (and probably many non-marchers) went off on a side street which was different than the route the police wanted protestors to take back to the origin point of the march. Police trapped (or “kettled” as they say in Canada) all the people who happened to be on the wrong side street and made a mass arrest.

Decision: Police may end up being liable here because there is no evidence that they gave clear instructions that could be heard by the people who happened to be on the wrong side street and ended up being arrest for that. Probable cause to make the arrests may have been lacking (at least on the plaintiffs’ version of the facts). Judge Posner writing for the majority, including also Judge Wood.


No precedent should be necessary, moreover, to establish that the Fourth Amendment does not permit the police to say to a person go ahead and march and then, five minutes later, having revoked the permission for the march without notice to anyone, arrest the person for having marched without police permission. This would be an indefensible sort of entrapment by the State — convicting a citizen for exercising a privilege which the State had clearly told him was available to him. So this is one of those cases in which a defense of immunity would fail even in the absence of a precedent that had established the illegality of the defendants’ conduct. The absence of a reported case with similar facts may demonstrate nothing more than widespread compliance with well-recognized constitutional principles. (internal quote omitted)

Written by Burgers Allday

December 22, 2011 at 5:53 pm

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