Saucier v. Katz strikes again
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.