Police, The Fourth Amendment, Qualified Immunity

Wonderful primer on how QI (qualified immunity) stunts development of 4A (Fourth Amendment) law

with 2 comments

Federal district court opinion by Judge Jeffrey Alker Meyer (edited for length, removal of legalese, and ease of understanding):

This is a Fourth Amendment case about the police occupation of a home without a warrant and in the face of an innocent homeowner’s insistence that the police leave. As I explained at length in my prior summary judgment ruling, the police in Greenwich, Connecticut tricked their way into Duncan Lawson’s home at 10:30 pm one night on a pretense that they wanted to talk with him about his 21-year-old son’s drug problem. What the police really wanted was to search the Lawson home for the son’s drugs. The police had already arrested the son elsewhere in town that night, and he had told them he kept a few oxycodone pills in his bedroom at home. Once Duncan Lawson made the mistake of trusting the police to enter his home, the police took full strategic advantage. They then insisted for the first time that they wanted to search the son’s bedroom.

But Duncan Lawson refused to consent. He told the police they should seek a warrant. He stood by his rights in the face of threats from the police that they would seek a search warrant for the entire house, not just the son’s bedroom. And he stood by his rights even after the police threatened to report him to the Department of Children and Families (DCF) and to have Duncan Lawson’s two other children—ages 11 and 16—taken away from him.

The police then decided to get a search warrant, and two officers were dispatched to draft the warrant papers and find a judge to sign them. In the meantime, however, the remaining police officers refused to leave the house until a warrant could be obtained and despite Duncan Lawson’s demand that they leave. To up the proverbial ante, the police also decided that they needed to “secure” the home. They forced Duncan Lawson to wake his two sleeping children, and the police herded the family into a common room downstairs to await the hours long into the night that it might for officers to return with a search warrant.

Duncan Lawson became outraged. He told his children to go back upstairs. He told one of his children to retrieve a phone camera so that he could record what he believed to be abusive conduct by the police. The police stopped him, and then they arrested Duncan Lawson for interfering with the police. They hauled him away in the dead of the night, leaving the two children alone with the police in the home. For good measure, the police told Duncan Lawson again on his way out that they would contact DCF to have his children taken away from him.

In my prior ruling, I concluded that these alleged facts established a flagrant violation of the Fourth Amendment. [T]his seemed to me a reprehensible example of coercive, police-state-style tactics well out of proportion to any legitimate police interests (here, the pursuit of a few pills of oxycodone). I thought there was good reason why Duncan Lawson was outraged. In my view, any reasonable person would be surprised and outraged to learn that if they consent to a police request to enter their home for the purpose of answering questions, then the Fourth Amendment does not require the police to leave if they are told to leave but allows the police to take a whole family as prisoners for so long as the police may take to [get] a warrant.

Under well-established principles of qualified immunity, the police could be liable only if an objectively reasonable officer would have known that the conduct of the police was in violation of clearly established law. For my part, despite the absence of a prior published appellate opinion involving a similarly egregious fact pattern, I thought the facts of this case to be so extreme that an objectively reasonable officer would—and ought—to have known that what the police did that night was a violation of the rights of Duncan Lawson and his family to be free from unreasonable search and seizure.

The [appeals court sitting above me] reversed [my decision that a Fourth Amendment violation had occurred]. The Court of Appeals did not decide whether the police violated the Fourth Amendment. Instead, the Court decided more narrowly that the police officers should be protected from liability by qualified immunity for “the lack of clearly established law barring the police actions” and because “[t]he police entered the home with Duncan Lawson’s consent, and when that consent was revoked it was objectively reasonable for the defendants to believe that exigent circumstances made their continued presence in the house, and their confinement of the residents to the living room, lawful.”

I am hopeful that the [appeals court sitting above me] will one day decide to consider the constitutionality of the type of “knock and talk” practice in this case.

Absent such an examination of the underlying constitutional issue, I fear that police officers in [my part of the country] are and remain free to engage in the kind of tactics that the police allegedly did here: that is, to trick their way into the home, only then to seek consent to search the home, and then to lock down the entire home and all its occupants for several hours pending the securing of a search warrant if the homeowner elects to exercise his constitutional rights. It won’t matter—as in this case—if the police use such tactics when they are in search of just a few pills that a suspect has freely admitted to possessing in his family’s home. It won’t matter that the homeowner has been cooperative (other than to assert his constitutional rights). It won’t matter that the homeowner has not said or done anything to indicate that he will destroy evidence. And it won’t matter if there are sleeping children whose memories may be forever scarred by the experience of a late-night police occupation of their home.

Absent a determination by the [the courts, the law will not] deter future police officers from the type of overreaching conduct that has been alleged to have occurred in this case.

Reliance on the qualified immunity rule—without a resolution of the merits—is troubling when facts suggest that police have deliberately deployed a stratagem to circumvent people’s assertions of their rights and the sanctity of their homes. A failure to address the merits in such circumstances may unwittingly reward the police for the use of clever techniques that are designed to cheapen the exercise of constitutional rights.

And there is surely a paramount interest besides in having clear rules for what the police may do inside a person’s home. It seems to me that for such cases as this the courts of appeals should clarify the constitutional baseline for future cases, even if courts might otherwise conclude that—for lack to date of a clearly established rule—qualified immunity should insulate the unconstitutional conduct in the one case before them.


Worth reading in its entirety, and you can do so at the following: link

Written by Burgers Allday

June 8, 2016 at 4:14 am

Posted in Uncategorized

2 Responses

Subscribe to comments with RSS.

  1. It suggests to me (average) that the 4th Amendment does not protect you from [unlawful] search and seizure, but only protects you from the search results being used in criminal proceedings against you. I wonder if the Constitution is serving as a road-map to destroy civil rights rather than a means of protecting civil rights. Perhaps it is becoming clear that we are in fact, a failed Constitutional State.

    Ronald Hinchley

    June 9, 2016 at 12:13 am

    • Ronald, what yo articulate very well in your comment is one of the main reasons that I do this blog! Sort of a related issue is that I think the Exclusionary Rule (as traditionally applied) has also become corrosive to 4A rights of innocent people. However, as the courts continue to chip away at the Exclusionary Rule, this is less of a problem. Thank you for the insightful comment!

      Burgers Allday

      June 9, 2016 at 6:30 am

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: