Police, The Fourth Amendment, Qualified Immunity


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Judge James Browning really takes both a Tenth Circuit panel, and Supreme Court Justice Elena Kagan, to task for the current state of qualified immunity (qi) law. The opinion is long and the facts are fascinating — there is no way a blog entry can do this case justice. To give a quick and over-simplified explanation, the police were zealous, and probably over-zealous, in their investigation of a police helicopter that was shot down over a golf course. The police ended up arresting the wrong man and held him in jail for 9 months until it was proven that he did not shoot down the police heli. The man sued under section 1983 for many and various asserted 4a violations that lead to his arrest and long incarceration.

Judge Browning wanted the man’s suit to proceed past the qi stage, but a divided panel of the Tenth Circuit court of appeals disagreed and remanded the case to Judge Browning. From Judge Browning’s opinion it is clear that he felt constrained to give the police qi on most of the 4a-based claims, despite deep misgivings about this. To try to summarize his trenchant and articulate criticism of higher courts, regarding the current state of qi law, he basically argues that the “clearly established law” requirement that a plaintiff must meet in order to make it past qi* is being applied too rigorously, which is to say that section 1983 plaintiffs are being required to supply precedents to show 4a violations that are being required to be unrealistically close to the asserted 4a violation that a given plaintiff allegedly suffered.

In my view, and I think in Judge Browning’s view, this problem is compounded by the fact that it is not clear that a qi case can be used as precedent to clearly establish 4a law for a novel specific factual paradigm or fact pattern. In other words, assume a judge rules as follows: “this case is clearly a 4a violation by the police in my view as a judge who makes law, but that fact was not clearly established before this present ruling now being made by me in this present case.” If a judge can make this kind of ruling in a qi case, then police get only one bite at the proverbial apple. The police in the case before the judge will get off liability-free, but the next policeman who does a similar thing will be on the hook for money damages arising from the newly-identified 4a violation that has been specifically identified by the judge. This rule makes a certain kind of sense and makes an understandable compromise. However, there is some suggestion in the authoritative case law that a judge in this kind of case is only issuing “dicta” (that is, non-essential verbiage) when making the ruling that the policeman has violated 4a. If the judge’s ruling on 4a is regarded as mere dicta, then the next policeman will not be liable when he does a similar thing to somebody else. The idea is that civil cases for money damages are too trivial to be used for establishing (capital “C”) Constitutional law. This is a notion that Judge Browning’s opinion bristles at, at least as I read it.

I don’t necessarily agree with everything Judge Browning wrote** in the opinion, but it is nice to see a judge speak his mind plainly, especially because he is speaking in dissent of the prevailing legal trends. Some would say that this is not the proper role of a federal district judge because it involves questioning the wisdom and logic of higher courts. As for me, I say, “good for Judge Browning.” The things he is saying about qi law sorely need to be said. And the guy who got wrongly put in jail for 9 months — he deserves better of of the judicial system than what he got from that 10th Circuit panel.



* QI only applies to suits for money damages. However, these are the only suits that really matter. In a suppression hearing, the defendant is always guilty, and guilty parties are poor exemplars for establishing 4a rights. Civil suits against police for injunctive relief are limited by certain legal rules (unwisely in my opinion, but that is a subject for other posts).

** For example, some of his comments about perceived bi-coastalism seem petty and unwarranted.

Written by Burgers Allday

August 25, 2012 at 10:27 am

Posted in Uncategorized

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