73472 (Author at Cato Institute) https://www.cato.org/ en As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight https://www.cato.org/blog/supreme-court-considers-several-qualified-immunity-cases-new-ally-joins-fight Jay Schweikert, Clark Neily <p>The Wall Street Journal recently published an <a href="https://www.wsj.com/articles/tear-gas-grenades-and-qualified-immunity-11579133525">op‐​ed</a> by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s <a href="https://ij.org/issues/private-property/project-on-immunity-and-accountability/">decision to join the raging battle against qualified immunity</a>, a&nbsp;court‐​confected doctrine that provides rights‐​violating police and other government officials with what Cato has described as an “<a href="https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/">unlawful shield</a>” against accountability for their misconduct. IJ’s focus on this issue will be a&nbsp;welcome addition to a&nbsp;fight that Cato has been waging for nearly two years with help from an astonishingly cross‐​ideological cast of public interest organizations ranging from the ACLU and the NAACP Legal Defense Fund to the Alliance Defending Freedom and the Second Amendment Foundation.</p> <p>Cato launched its strategic campaign to challenge the doctrine of <a href="https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/">qualified immunity</a>—an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s — on March 1, 2018. Cato’s <a href="https://www.cato.org/events/qualified-immunity-supreme-courts-unlawful-assault-civil-rights-police-accountability">kick‐​off panel</a> featured Judge Lynn Adelman of the Eastern District of Wisconsin, who has <a href="https://www.dissentmagazine.org/article/supreme-court-assault-civil-rights-section-1983">sharply criticized the doctrine</a>; Professor Will Baude, whose enormously influential <a href="http://www.californialawreview.org/print/2-is-qualified-immunity-unlawful/">law review article</a> has formed the backbone of the legal challenge to qualified immunity; and Andy Pincus and Victor Glasberg, two practitioners with ample experience confronting the harsh realities of the doctrine. Shortly after that conference, <a href="https://www.cato.org/multimedia/media-highlights-tv/george-will-mentions-cato-institute-leading-fight-against-qualified">George Will</a> noted on Meet the Press that there would be a “national discussion” about qualified immunity, “led by the Cato Institute.”</p> <p>The centerpiece of Cato’s strategic campaign to take down qualified immunity has been a&nbsp;series of targeted <em>amicus</em> briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright<em>. </em>Since launching the campaign in March 2018, Cato has filed dozens of additional <em>amicus</em> briefs in our own name, but we have also <a href="https://www.nytimes.com/2018/07/11/nyregion/qualified-immunity-supreme-court.html">organized a&nbsp;massive cross‐​ideological alliance</a> of public interest groups opposed to qualified immunity — what <a href="http://www.ca5.uscourts.gov/opinions/pub/17/17-50518-CV1.pdf">Judge Don Willett recently called</a> “perhaps the most diverse amici ever assembled.” This “cross‐​ideological brief” was first filed in July 2018, in support of the cert petition in <em><a href="https://www.cato.org/blog/leading-scholars-most-diverse-amici-ever-assembled-file-briefs-challenging-qualified-immunity">Allah v. Milling</a></em>, a&nbsp;case involving the illegal and unconstitutional solitary confinement of a&nbsp;pretrial detainee in Connecticut for nearly seven months. So unsettled was the state by the onslaught of <em>amicus</em> support that it settled the case by offering the plaintiff more to dismiss his cert petition than he had been awarded at trial.</p> <p>A diverse array of lower court judges has also been increasingly critical of qualified immunity, with many explicitly calling for the Supreme Court to reconsider the doctrine. To underscore the incredible ideological breadth of the opposition to qualified immunity, it is worth noting that the judicial critics of the doctrine now include nominees of every single President since Carter, as well as one of the two remaining LBJ appointees on the bench. To give just a&nbsp;few notable examples:</p> <ul> <li><a href="http://www.ca5.uscourts.gov/opinions/pub/17/17-50518-CV1.pdf">Judge Don Willett</a>, a&nbsp;Trump appointee to the Fifth Circuit, has explained how “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the <em>first</em> to behave badly,” and sharply notes that “this entrenched, judge‐​created doctrine excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.”</li> </ul> <ul> <li><a href="https://www.leagle.com/decision/infdco20180831d08">Judge James Browning</a>, a&nbsp;George W. Bush appointee to the District of New Mexico, has now issued several opinions that include a&nbsp;blistering criticism of the Supreme Court’s “clearly established law” standard, and citing Cato’s <em>amicus</em> briefs for the argument that “qualified immunity has increasingly diverged from the statutory and historical framework on which it is supposed to be based.”</li> </ul> <ul> <li><a href="https://casetext.com/case/ventura-v-rutledge">Judge Dale Drozd</a>, an Obama appointee to the Eastern District of California, cited Cato’s March 2018 forum in his discussion of the campaign to challenge qualified immunity, and announced that “this judge joins with those who have endorsed a&nbsp;complete re‐​examination of the doctrine which, as it is currently applied, mandates illogical, unjust, and puzzling results in many cases.”</li> </ul> <p>Now, almost two years into Cato’s campaign, the Supreme Court finally appears to be preparing to confront the question of whether qualified immunity should be reconsidered. There are currently <em>six</em> major qualified immunity cert petitions pending before the Court, and the manner in which the Supreme Court has repeatedly rescheduled consideration of these cases strongly suggests that the Justices may be preparing to consider them together — which in turn suggests that they’re looking closely at the fundamental question of whether qualified immunity should be reconsidered. <a href="https://www.cato.org/blog/supreme-court-may-be-preparing-consider-several-major-cases-qualified-immunity">We first discussed this possibility</a> back in October of last year, and we now have even more evidence suggesting the Court may be preparing to take up this issue. Here are the key details about each of the six cases:</p> <ul> <li><em><strong><a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1287.html">Baxter v. Bracey</a>.</strong> </em>This is the case where the <a href="https://www.opn.ca6.uscourts.gov/opinions.pdf/18a0566n-06.pdf">Sixth Circuit</a> granted qualified immunity to two officers who deployed a&nbsp;police dog against a&nbsp;suspect who had already surrendered and was sitting on the ground with his hands up. The ACLU filed a&nbsp;<a href="https://www.supremecourt.gov/DocketPDF/18/18-1287/95661/20190408145246695_Baxter%20v%20Bracey%20Petition%20for%20Writ%20of%20Certiorary.pdf">cert petition</a> back in April 2019, asking whether “the judge‐​made doctrine of qualified immunity” should “be narrowed or abolished.” <a href="https://www.supremecourt.gov/DocketPDF/18/18-1287/101473/20190530161957223_Baxter%20v.%20Bracey%20Cato%20amicus%20brief.pdf">Cato filed a&nbsp;brief</a> in support of the petition, and we also helped to coordinate the filing of an updated <a href="https://www.supremecourt.gov/DocketPDF/18/18-1287/101646/20190531162059735_FINAL%20Crossideological%20Brief%20Baxter%205.31.2019.pdf">cross‐​ideological brief</a>. Jay Schweikert and Emma Andersson (one of the ACLU attorneys on the case) wrote a&nbsp;<a href="https://takecareblog.com/blog/violation-eludes-vindication-left/right-alliance-urges-supreme-court-to-reform-police-immunity">joint op‐​ed</a> discussing the case back in July, and Law360 ran a&nbsp;detailed story on <em>Baxter</em>, asking “<a href="https://www.law360.com/articles/1202942">Could A&nbsp;Dog Bite Bring An End To Qualified Immunity</a>?”</li> </ul> <ul> <li><strong><a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-913.html"><em>Brennan v. Dawson</em></a>. </strong>In this case, the <a href="https://www.opn.ca6.uscourts.gov/opinions.pdf/18a0508n-06.pdf">Sixth Circuit</a> granted immunity to a&nbsp;police officer who, in an attempt to administer an alcohol breath test to a&nbsp;man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a&nbsp;lack of “clearly established law.” The <a href="https://www.supremecourt.gov/DocketPDF/18/18-913/80215/20190111120052778_Filed%20Petition.pdf">cert petition</a> in this case was filed on January 11, 2019, and asks the Court to “reign in the qualified immunity standard to … reflect the common‐​law roots of qualified immunity.”</li> </ul> <ul> <li><a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-676.html"><em><strong>Zadeh v. Robinson</strong></em></a> and <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-679.html"><em><strong>Corbitt v. Vickers</strong></em></a>. We’ve <a href="https://www.cato.org/blog/supreme-court-may-be-preparing-consider-several-major-cases-qualified-immunity">discussed these cases</a> in more detail previously, but <em>Zadeh</em> is the case where the <a href="http://www.ca5.uscourts.gov/opinions/pub/17/17-50518-CV1.pdf">Fifth Circuit</a> granted immunity to state investigators that entered a&nbsp;doctor’s office and, without notice and without a&nbsp;warrant, demanded to rifle through the medical records of 16 patients. And <em>Corbitt</em> is the case where the <a href="http://media.ca11.uscourts.gov/opinions/pub/files/201715566.pdf">Eleventh Circuit</a> granted immunity to a&nbsp;deputy sheriff who shot a&nbsp;ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a&nbsp;pet dog that wasn’t posing any threat. The plaintiffs in both cases are now represented by Paul Hughes, who filed <a href="https://www.supremecourt.gov/DocketPDF/19/19-676/123464/20191122163707356_Zadeh.cert.pet.pdf">cert</a> <a href="https://www.supremecourt.gov/DocketPDF/19/19-679/123466/20191122164334779_Corbitt.cert.pet.pdf">petitions</a> on November 22, 2019, each of which asks “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.” Cato submitted briefs in <a href="https://www.supremecourt.gov/DocketPDF/19/19-676/126407/20191220141759139_Zadeh%20v.%20Robinson%20crossideological%20brief.pdf">both</a> <a href="https://www.supremecourt.gov/DocketPDF/19/19-679/126410/20191220142234327_Corbitt%20v.%20Vickers%20crossideological%20brief.pdf">cases</a>, this time taking the lead on the cross‐​ideological brief, whose signatories also included the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R&nbsp;Street, and the Second Amendment Foundation.</li> </ul> <ul> <li><em><strong><a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-682.html">Kelsay v. Ernst</a>.</strong> </em>This is the case where the <a href="https://cases.justia.com/federal/appellate-courts/ca8/17-2181/17-2181-2019-08-13.pdf?ts=1565710223">Eighth Circuit</a>, in an 8 – 4&nbsp;en banc decision, granted immunity to a&nbsp;police officer who grabbed a&nbsp;small woman in a&nbsp;bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The <a href="https://www.supremecourt.gov/DocketPDF/19/19-682/123715/20191126132451862_19-__%20PetitionForAWritOfCertiorari.pdf">cert petition</a> in this case was filed on November 26, 2019, and while it doesn’t ask the Court to reconsider qualified immunity outright, it does ask the Court to “take steps within the confines of current law to rein in the most extreme departures from the original meaning of Section 1983.” <a href="https://www.supremecourt.gov/DocketPDF/19/19-682/126531/20191223123129162_Kelsay%20v.%20Ernst%20Cato%20amicus%20brief.pdf">Cato filed a&nbsp;brief</a> in support of this petition as well.</li> </ul> <ul> <li><em><strong>West v. Winfield.</strong> </em>As related in the IJ op‐​ed mentioned above, police officers told Shaniz West that they were looking for her ex‐​boyfriend and thought he might be inside her house, so she gave them permission to go in and look. But instead of entering, they instead called a&nbsp;SWAT team, who bombarded it from the outside with tear‐​gas grenades, effectively destroying her home and all her possessions (the ex‐​boyfriend wasn’t even inside). The <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/25/18-35300.pdf">Ninth Circuit</a> granted immunity to the officers, on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that Ms. West gave to allow officers to enter her home. Yesterday, the IJ filed a&nbsp;<a href="https://ij.org/wp-content/uploads/2020/01/39265-pdf-McNamara-br.pdf">cert petition</a> on behalf of Ms. West asking the Court to clarify and limit the scope of qualified immunity. As noted, this case marks the launch of IJ’s “<a href="https://ij.org/issues/private-property/project-on-immunity-and-accountability/">Project on Immunity and Accountability</a>,” which is focused on challenging doctrines like qualified immunity that erroneously permit public officials to operate above the law. IJ has previously joined various iterations of the Cato‐​conceived cross‐​ideological brief described above, but we’re looking forward to filing our own amicus brief in support of IJ’s cert petition in <em>West</em>.</li> </ul> <p>The Court has yet to make a&nbsp;final decision about any of these cert petitions, but there’s good reason to think the Justices are preparing to consider at least some of them jointly. First, in every single one of these cases (except <em>West</em>, as it was just filed yesterday), the Court has “called for a&nbsp;response” to the cert petition. Although a&nbsp;CFR alone is no guarantee of a&nbsp;cert grant, it’s an <a href="https://media2.mofo.com/documents/180726-call-for-response-scotus-interest.pdf">encouraging sign</a> that at least some of the Justices are looking closely at the case, and want to hear more from the respondents about the issue.</p> <p>Second, the Court’s repeated rescheduling decisions strongly suggest that they’re planning to consider them together, meaning they’re likely to address the fundamental, underlying question of whether qualified immunity itself should be reconsidered. Specifically, <em>Baxter</em> and <em>Brennan</em> were both fully briefed and originally set to be considered in October 2019. But since then, the <em>Baxter</em> petition has been rescheduled five times, and <em>Brennan</em> has been rescheduled three times, most recently on January 8th in both cases. January 8th also happens to be the same day in which the Court called for a&nbsp;response in both <em>Zadeh</em> and <em>Corbitt</em> (with the <em>Kelsay</em> CFR following five days later, on January 13th). It’s hard to imagine why else the Court would postpone these fully briefed petitions for over three months, unless they were holding them to consider along with these more recent petitions raising the same ultimate question.</p> <p>Of course, this is all still speculative to some degree, and even if the Court does grant cert in one or more of these cases, there’s a&nbsp;wide range of potential outcomes. But the confluence of so many powerful petitions pending at the same time, combined with the Court’s obvious focus on this issue, makes undeniable what Cato has been saying for years — one way or another, the Supreme Court is going to have to confront the glaring legal inadequacies of qualified immunity, together with the massive injustices the doctrine has perpetrated on countless individuals whose rights have been violated with impunity by unaccountable police and other government officials.</p> Fri, 17 Jan 2020 17:00:34 -0500 Jay Schweikert, Clark Neily https://www.cato.org/blog/supreme-court-considers-several-qualified-immunity-cases-new-ally-joins-fight Jay Schweikert discusses North Carolina’s criminal law reform on Car​oli​na​Jour​nal​.com https://www.cato.org/multimedia/media-highlights-tv/jay-schweikert-discusses-north-carolinas-criminal-law-reform Fri, 17 Jan 2020 12:29:06 -0500 Jay Schweikert https://www.cato.org/multimedia/media-highlights-tv/jay-schweikert-discusses-north-carolinas-criminal-law-reform Corbitt v. Vickers https://www.cato.org/publications/legal-briefs/corbitt-v-vickers Clark Neily, Jay Schweikert <div class="lead text-default"> <p>For the last two years, Cato has been engaged in a&nbsp;strategic <em>amicus</em> campaign to convince the Supreme Court to reconsider qualified immunity – an atextual, ahistorical doctrine that shields state agents from liability even when they violate people’s constitutional rights. Today, Cato filed two briefs, on behalf of both itself and eleven other public policy groups from across the ideological spectrum, in support of two major cert petitions that ask the Court to take up exactly this question.</p> </div> , <div class="text-default"> <p>The first, <em>Zadeh v. Robinson</em>, is a&nbsp;case out of the Fifth Circuit, in which administrative state officials of the Texas Medical Board executed a&nbsp;no‐​notice administrative subpoena on the medical offices of Dr. Joseph Zadeh. Working at the urging of the DEA, Board investigators demanded immediate production of significant quantities of confidential patient medical information, including private patient records concerning mental health issues and domestic relationships. The Board ultimately obtained the information by threatening to revoke Dr. Zadeh’s medical license, and Dr. Zadeh subsequently filed a&nbsp;Section 1983 action. Both the district court and the court of appeals unanimously held that the investigators violated Dr. Zadeh’s constitutional rights, but a&nbsp;split panel nevertheless granted qualified immunity to the defendants. Judge Don Willett dissented, arguing both that the Fourth Amendment violation in this case was “clearly established,” but also discussing his “broader unease with the real‐​world functioning of modern immunity practice.”</p> <p>The second, <em>Corbitt v. Vickers</em>, is a&nbsp;case out of the Eleventh Circuit case, in which a&nbsp;split panel granted qualified immunity to a&nbsp;deputy sheriff in Coffee County, Georgia, who shot a&nbsp;ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a&nbsp;pet dog that wasn’t posing any threat. The majority declined even to resolve the constitutional question, and simply noted that there was no prior case law involving the “unique facts of this case,” in which a&nbsp;child was accidentally shot while the officer was intending to shoot someone (or something) else. The case provoked a&nbsp;powerful dissent from Judge Charles Wilson, who began his opinion by noting that “[b]ecause no competent officer would fire his weapon in the direction of a&nbsp;nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers.”</p> <p>The petitioners in both cases are represented by Paul Hughes, co‐​chair of the Supreme Court and Appellate Practice Group at McDermott Will &amp;&nbsp;Emery. And both petitions explicitly ask “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.”</p> <p>Cato filed <em>amicus</em> briefs in support of both petitions, on behalf of a&nbsp;cross‐​ideological alliance of a&nbsp;dozen different public policy groups, which also includes the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity Foundation, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP Legal Defense Fund, Public Justice, R&nbsp;Street, and the Second Amendment Foundation. The brief argues that qualified immunity exacerbates the ongoing crisis of accountability in law enforcement, by regularly denying justice to victims whose constitutional rights are violated. This hurts not only the victims of official misconduct, but law enforcement professionals themselves, by denying them the credibility and respect they need to do their jobs safely and effectively. The brief further argues that <em>stare decisis</em> should not stop the Supreme Court from reconsidering qualified immunity, in large part because the “clearly established law” standard is so malleable and indefinite that it has failed to create the kind of stability and predictability that justify respect for precedent in the first place.</p> </div> Fri, 20 Dec 2019 16:17:26 -0500 Clark Neily, Jay Schweikert https://www.cato.org/publications/legal-briefs/corbitt-v-vickers Zadeh v. Robinson https://www.cato.org/publications/legal-briefs/zadeh-v-robinson Clark Neily, Jay Schweikert <div class="lead text-default"> <p>For the last two years, Cato has been engaged in a&nbsp;strategic <em>amicus</em> campaign to convince the Supreme Court to reconsider qualified immunity – an atextual, ahistorical doctrine that shields state agents from liability even when they violate people’s constitutional rights. Today, Cato filed two briefs, on behalf of both itself and eleven other public policy groups from across the ideological spectrum, in support of two major cert petitions that ask the Court to take up exactly this question.</p> </div> , <div class="text-default"> <p>The first, <em>Zadeh v. Robinson</em>, is a&nbsp;case out of the Fifth Circuit, in which administrative state officials of the Texas Medical Board executed a&nbsp;no‐​notice administrative subpoena on the medical offices of Dr. Joseph Zadeh. Working at the urging of the DEA, Board investigators demanded immediate production of significant quantities of confidential patient medical information, including private patient records concerning mental health issues and domestic relationships. The Board ultimately obtained the information by threatening to revoke Dr. Zadeh’s medical license, and Dr. Zadeh subsequently filed a&nbsp;Section 1983 action. Both the district court and the court of appeals unanimously held that the investigators violated Dr. Zadeh’s constitutional rights, but a&nbsp;split panel nevertheless granted qualified immunity to the defendants. Judge Don Willett dissented, arguing both that the Fourth Amendment violation in this case was “clearly established,” but also discussing his “broader unease with the real‐​world functioning of modern immunity practice.”</p> <p>The second, <em>Corbitt v. Vickers</em>, is a&nbsp;case out of the Eleventh Circuit case, in which a&nbsp;split panel granted qualified immunity to a&nbsp;deputy sheriff in Coffee County, Georgia, who shot a&nbsp;ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a&nbsp;pet dog that wasn’t posing any threat. The majority declined even to resolve the constitutional question, and simply noted that there was no prior case law involving the “unique facts of this case,” in which a&nbsp;child was accidentally shot while the officer was intending to shoot someone (or something) else. The case provoked a&nbsp;powerful dissent from Judge Charles Wilson, who began his opinion by noting that “[b]ecause no competent officer would fire his weapon in the direction of a&nbsp;nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers.”</p> <p>The petitioners in both cases are represented by Paul Hughes, co‐​chair of the Supreme Court and Appellate Practice Group at McDermott Will &amp;&nbsp;Emery. And both petitions explicitly ask “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.”</p> <p>Cato filed <em>amicus</em> briefs in support of both petitions, on behalf of a&nbsp;cross‐​ideological alliance of a&nbsp;dozen different public policy groups, which also includes the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity Foundation, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP Legal Defense Fund, Public Justice, R&nbsp;Street, and the Second Amendment Foundation. The brief argues that qualified immunity exacerbates the ongoing crisis of accountability in law enforcement, by regularly denying justice to victims whose constitutional rights are violated. This hurts not only the victims of official misconduct, but law enforcement professionals themselves, by denying them the credibility and respect they need to do their jobs safely and effectively. The brief further argues that <em>stare decisis</em> should not stop the Supreme Court from reconsidering qualified immunity, in large part because the “clearly established law” standard is so malleable and indefinite that it has failed to create the kind of stability and predictability that justify respect for precedent in the first place.</p> </div> Fri, 20 Dec 2019 15:59:40 -0500 Clark Neily, Jay Schweikert https://www.cato.org/publications/legal-briefs/zadeh-v-robinson Torres v. Madrid https://www.cato.org/publications/legal-briefs/torres-v-madrid Clark Neily, Jay Schweikert, Anton Metlitsky, Dimitri D. Portnoi <div class="lead text-default"> <p>Police officers shot Petitioner, but she drove away and temporarily eluded capture. In this excessive force suit, the district court granted summary judgment for the officers on the ground that no Fourth Amendment “seizure” occurred. The Tenth Circuit affirmed, reasoning that an officer’s application of physical force is not a&nbsp;seizure if the person upon whom the force is applied evades apprehension.</p> </div> , <div class="text-default"> <p>The question presented is:</p> <p>Is an unsuccessful attempt to detain a&nbsp;suspect by use of physical force a “seizure” within the meaning of the Fourth Amendment, as the Eighth, Ninth, and Eleventh Circuits and the New Mexico Supreme Court hold, or must physical force be successful in detaining a&nbsp;suspect to constitute a “seizure,” as the Tenth Circuit and the D.C. Court of Appeals hold?</p> </div> Wed, 18 Dec 2019 13:18:01 -0500 Clark Neily, Jay Schweikert, Anton Metlitsky, Dimitri D. Portnoi https://www.cato.org/publications/legal-briefs/torres-v-madrid Supreme Court May Be Preparing to Consider Several Major Cases on Qualified Immunity https://www.cato.org/blog/supreme-court-may-be-preparing-consider-several-major-cases-qualified-immunity Jay Schweikert <p>For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of <a href="https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/">qualified immunity</a>. This <a href="http://www.californialawreview.org/wp-content/uploads/2018/02/2Baude-33.pdf">atextual, ahistorical doctrine</a> — which shields public officials from liability, even when they break the law — was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the <a href="https://www.supremecourt.gov/opinions/16pdf/15-1358_6khn.pdf">Justices</a> <a href="https://www.supremecourt.gov/opinions/17pdf/17-467_bqm1.pdf">themselves</a> have already suggested. And now, with several major qualified immunity cases on the horizon, it appears the Court may finally be preparing to take up the matter.</p> <p>The main reason for my suspicion here has to do with recent developments in <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1287.html"><em>Baxter v. Bracey</em></a>. This is the case where <span>the <a href="http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0566n-06.pdf">Sixth Circuit</a> granted qualified immunity to two officers who deployed a&nbsp;police dog against a&nbsp;suspect who had already surrendered and was sitting on the ground with his hands up. A&nbsp;prior case had held that it was unlawful to use a&nbsp;police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent similarity, the Sixth Circuit found this precedent insufficient to overcome qualified immunity because “Baxter does not point us to any case law suggesting that <em>raising his hands, on its own</em>, is enough to put [the defendant] on notice that a&nbsp;canine apprehension was unlawful in these circumstances” (emphasis added). In other words, prior case law holding unlawful the use of police dogs against non‐​threatening suspects who surrendered by <em>laying on the ground</em> did not clearly establish that it was unlawful to deploy police dogs against non‐​threatening suspects who surrendered by <em>sitting on the ground with their hands up</em>.</span></p> <p>The ACLU filed a&nbsp;<a href="https://www.supremecourt.gov/DocketPDF/18/18-1287/95661/20190408145246695_Baxter%20v%20Bracey%20Petition%20for%20Writ%20of%20Certiorary.pdf">cert petition</a> on behalf of Mr. Baxter, asking the Supreme Court to consider whether “the judge‐​made doctrine of qualified immunity” should “be narrowed or abolished.” The Cato Institute <a href="https://www.supremecourt.gov/DocketPDF/18/18-1287/101473/20190530161957223_Baxter%20v.%20Bracey%20Cato%20amicus%20brief.pdf">filed a&nbsp;brief</a> in support of this petition, as did a&nbsp;<a href="https://www.supremecourt.gov/DocketPDF/18/18-1287/101646/20190531162059735_FINAL%20Crossideological%20Brief%20Baxter%205.31.2019.pdf">vast, cross‐​ideological array of other public interest groups</a> and <a href="https://www.supremecourt.gov/DocketPDF/18/18-1287/101650/20190531163444690_18-1287.tsac.Legal.Scholars.pdf">leading scholars of qualified immunity</a>. The petition was originally set to be considered at the Supreme Court’s long conference on October 1st — that is, the first conference of the term, where the Justices resolve a&nbsp;large number of petitions that were submitted over the summer recess. Emma Andersson (one of the ACLU attorneys on the case) and I&nbsp;wrote a&nbsp;<a href="https://takecareblog.com/blog/violation-eludes-vindication-left/right-alliance-urges-supreme-court-to-reform-police-immunity">joint op‐​ed</a> discussing the case back in July, and Law360 recently ran a&nbsp;detailed story on <em>Baxter</em>, asking “<a href="https://www.cato.org/Could%20A%20Dog%20Bite%20Bring%20An%20End%20To%20Qualified%20Immunity">Could A&nbsp;Dog Bite Bring An End To Qualified Immunity</a>?” All of us were holding our breath as the Supreme Court prepared to start its new term…</p> <p>But then, something curious happened. On September 23rd, just a&nbsp;week before the <em>Baxter </em>cert petition was set to go to conference, the Court rescheduled the case for the conference of October 11th. (“Rescheduling” means the petition will be considered at a&nbsp;later date, and that the Justices have yet to formally consider it — as opposed to “relisting,” which happens <em>after</em> a&nbsp;petition has already been considered at conference.) Then, on October 8th, the case was rescheduled again — no conference date is listed on the docket yet, but the <a href="https://www.supremecourt.gov/oral_arguments/2019TermCourtCalendar.pdf">next scheduled conference</a> would be October 18th.</p> <p>Why is the Court repeatedly rescheduling <em>Baxter</em>? It’s impossible to know for sure, of course, but I&nbsp;suspect the Court may be waiting to consider the case simultaneously with at least two other cert petitions which will also raise the question of whether qualified immunity should be reconsidered — specifically, those in <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19a308.html"><em>Zadeh v. Robinson</em></a> and <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19a309.html"><em>Corbitt v. Vickers</em></a>. <em>Zadeh</em> is the case where the <a href="http://www.ca5.uscourts.gov/opinions/pub/17/17-50518-CV1.pdf">Fifth Circuit granted qualified immunity</a> to state investigators that entered a&nbsp;doctor’s office and, without notice and without a&nbsp;warrant, demanded to rifle through the medical records of 16 patients. Judge Don Willett dissented in <em>Zadeh</em>, arguing that the Fourth Amendment violation in this case was “clearly established,” but also discussing his “broader unease with the real‐​world functioning of modern immunity practice.” And <em>Corbitt</em> is the case I&nbsp;discussed in detail <a href="https://www.cato.org/blog/eleventh-circuit-grants-immunity-officer-who-shot-child-lying-ground-while-trying-shoot">here</a>, in which the Eleventh Circuit granted immunity to a&nbsp;deputy sheriff who shot a&nbsp;ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a&nbsp;pet dog that wasn’t posing any threat.</p> <p>Cert petitions have yet to be filed in <em>Zadeh</em> or <em>Corbitt</em>. However, the civil rights plaintiffs in these cases are now both represented by <a href="https://www.mwe.com/people/hughes-paul-w/">Paul Hughes</a> — co‐​chair of the Supreme Court and Appellate Practice Group at McDermott Will &amp;&nbsp;Emery — who has filed applications for extensions of time to file a&nbsp;cert petition in both cases. These applications explicitly state that the petitions will raise the question of “whether the doctrine of qualified immunity should be narrowed or revisited entirely,” which is essentially the exact same question in <em>Baxter</em>. And these applications were granted, respectively, on September 17th and September 20th — just days before the <em>Baxter</em> cert petition was rescheduled! Therefore, it seems quite likely to me that Court is planning to hold <em>Baxter</em> until around the time that the <em>Zadeh</em> and <em>Corbitt</em> cert petitions are also filed (which will likely be in mid‐​November), so that it can consider all three cases together. And that in turn suggests to me that the Justices are, at the very least, seriously considering the fundamental underlying question of whether qualified immunity should be considered.</p> <p>Of course, this prediction is only speculation at this point, and even if the Justices are holding <em>Baxter</em> for something like the reasons I’ve sketched out above, that’s no guarantee that they’ll grant the petition. But this is, in my view, a&nbsp;promising development, especially in light of the Court’s disappointing denial of the cert petition in <em><a href="https://www.cato.org/blog/cato-files-brief-challenging-qualified-immunity-for-warrantless-strip-search-of-4-year-old">Doe v. Woodard</a> </em>(which also asked the Court to reconsider qualified immunity) at the end of the last term. Perhaps, for whatever reason, the Justices preferred <em>Baxter</em> et al. as the vehicle&nbsp;for taking up this question. Or perhaps they’ve realized that this issue is simply not going away. But by the end of this term, I&nbsp;suspect that we’ll have a&nbsp;much clearer sense, for better or worse, of whether the Supreme Court intends to correct the unlawful, unworkable, and unjust doctrine it has foisted upon us all.</p> <hr> Fri, 11 Oct 2019 14:23:46 -0400 Jay Schweikert https://www.cato.org/blog/supreme-court-may-be-preparing-consider-several-major-cases-qualified-immunity Jay Schweikert discusses Ramos v. Louisiana on a Federalist Society video https://www.cato.org/multimedia/media-highlights-tv/jay-schweikert-discusses-ramos-v-louisiana-federalist-society-video Sun, 06 Oct 2019 14:35:17 -0400 Jay Schweikert https://www.cato.org/multimedia/media-highlights-tv/jay-schweikert-discusses-ramos-v-louisiana-federalist-society-video Alfredo Beltran Leyva v. United States https://www.cato.org/publications/legal-briefs/alfredo-beltran-leyva-v-united-states John Cline, Clark Neily, Jay Schweikert <div class="lead text-default"> <p>To convict a&nbsp;criminal defendant at trial, the state must rely on evidence that meets strict constitutional and other legal standards: witnesses must appear in person, testify under oath, and be subject to cross‐​examination; the Federal Rules of Evidence generally prohibit hearsay statements; and the evidence must ultimately establish the defendant’s guilt beyond a&nbsp;reasonable doubt. But at&nbsp;<em>sentencing</em>, which may often be the more practically significant stage of criminal proceedings, none of these protections apply. Federal judges routinely sentence defendants based on the hearsay statements of convicted criminals trying to reduce their sentences through cooperation, which are relayed to the court at sentencing only by law enforcement officers. The cooperating criminals do not appear in court, do not swear an oath to tell the truth, and do not face cross‐​examination. And their out‐​of‐​court statements need only persuade the judge by a&nbsp;<em>preponderance</em>&nbsp;of the evidence, not beyond a&nbsp;reasonable doubt.</p> </div> , <div class="text-default"> <p>Beltran Leyva faces a&nbsp;life sentence based on exactly this sort of evidence. He pled guilty to a&nbsp;narcotics importation conspiracy, which resulted in a&nbsp;Sentencing Guidelines range of “only” 235 – 293 months (already a&nbsp;wildly disproportionate sentence, but beside the point here). But as a&nbsp;result of enhancements that were based entirely on two agents reciting three unobserved cooperators’ unsworn hearsay claims, he received a&nbsp;life sentence instead. These unsentenced, Spanish‐​speaking cooperators all received favorable plea deals, but had also committed various crimes of dishonesty throughout their lives, including bribery — indeed, one was convicted of attempting to bribe a&nbsp;Bureau of Prisons officer after making a&nbsp;cooperation agreement with the government. Two of them barely knew Leyva, and the third was a&nbsp;Mexican policeman working for drug cartels. Had they testified, these issues would have been valid grounds for cross‐​examination and impeachment. But the district court refused to require their in‐​court testimony, despite Leyva’s continued requests; instead, their claims were filtered through the agents — one of whom did not even speak Spanish — and who admittedly never corroborated their sources’ claims.</p> <p>In upholding Leyva’s sentence, the D.C. Circuit relied on the highly deferential “abuse of discretion” standard, and gave “especially strong deference” to the district judge’s “credibility determinations.” But here, of course, the district judge could not possibly have been making credibility determinations as to the underlying sources, because they never testified. Leyva therefore filed a&nbsp;cert petition, asking the Supreme Court to resolve a&nbsp;three‐​way circuit split on the correct standard of review to assess the reliability of fact‐​finding in federal sentencings following guilty pleas.</p> <p>The Cato Institute, along with several other public‐​policy groups and academics, has filed an&nbsp;<em>amicus</em> brief in support of this petition, arguing that meaningful appellate review is one of the few safeguards defendants have against sentencing enhancements backed only by cooperator hearsay. De novo review by courts of appeals ensures at least that the reliability of cooperators’ statements will receive a&nbsp;second level of careful scrutiny, and it comports with the rationale for heightened appellate scrutiny generally. The stakes — a person’s right to due process of law before losing their liberty — are high, and because the district court never observes the cooperator’s demeanor, the appellate court is just as capable of evaluating credibility. Especially in light of the fact that guilty pleas have all but replaced jury trials as the baseline of criminal adjudication, it is all the more important now that the Supreme Court does not further erode the limited evidentiary protections that defendants have at sentencing.</p> </div> Tue, 01 Oct 2019 09:27:21 -0400 John Cline, Clark Neily, Jay Schweikert https://www.cato.org/publications/legal-briefs/alfredo-beltran-leyva-v-united-states Addressing the Gross Injustice of Acquitted Conduct Sentencing https://www.cato.org/blog/addressing-gross-injustice-acquitted-conduct-sentencing Jay Schweikert <p>Under our Constitution, the jury trial is supposed to be the cornerstone of criminal adjudication. <span>The independence of citizen jurors has always been understood to be an indispensable structural check on executive, legislative, and even judicial power. And that independence has always entailed a&nbsp;special solicitude for jury <em>acquittals</em>, which are intended to have unassailable&nbsp;finality. Yet prosecutors and judges routinely do end‐​runs around this intended finality — and thus, around the jury trial itself — through the pernicious practice of “acquitted conduct sentencing.” </span></p> <p>“Acquitted conduct sentencing” refers to the s<span>cenario in which a&nbsp;judge sentences a&nbsp;defendant not just upon the charge for which they were convicted, but also based upon alleged conduct underlying charges for which they were&nbsp;<em>acquitted</em>. For example, in&nbsp;<a href="https://www.law.cornell.edu/supremecourt/text/13-10026"><em>Jones v. United States</em></a>, the defendants were charged with both (1) distributing small amounts of crack cocaine, and (2) a&nbsp;<em>conspiracy&nbsp;</em>to distribute large amounts of crack cocaine. The jury convicted on the distribution charge, but acquitted on the conspiracy charge. Common sense and basic constitutional principles would seem to dictate that the defendants be sentenced only on the basis of their distribution. </span></p> <p><span>But bizarrely, the judge in that case effectively disagreed with the jury’s verdict, concluded that the defendants&nbsp;<em>did&nbsp;</em>engage in the charged conspiracy, and sentenced them far more harshly than would otherwise have been warranted. While the Guidelines sentencing range for the distribution charge would have “only” been 27 – 71 months (still a&nbsp;wildly excessive punishment, but beside the point here), the three defendants in&nbsp;<em>Jones&nbsp;</em>were ultimately sentenced to&nbsp;</span>180, 194, and 225 months — in essence, punishing them about four times more harshly solely because of alleged conduct for which they were acquitted.</p> <p>Acquitted conduct sentencing is not only unjust, but flagrantly unconstitutional. Although the <a href="https://www.cato.org/supreme.justia.com/cases/federal/us/519/148/">Supreme Court has held</a> that this practice does not specifically violate the Double Jeopardy Clause&nbsp;(a conclusion which itself is questionable), it has never addressed whether the practice&nbsp;violates either the Due Process Clauses of the Fifth and the Fourteenth Amendment, or the Sixth Amendment right to a&nbsp;jury trial. And as Cato has argued in several&nbsp;<em><a href="https://www.cato.org/sites/cato.org/files/pubs/pdf/cabrera-rangel-v-united-states-cato-amicus-brief.pdf">amicus</a> </em><a href="https://www.cato.org/sites/cato.org/files/2019-09/Asaro-v-United-States-Cato-amicus-brief.pdf">briefs</a> on the subject, acquitted conduct sentencing is inherently at odds with the understanding of the jury trial in the Anglo‐​American legal tradition, and especially contrary to the special sanctity and unassailable finality of jury acquittals. Permitting sentencing based on acquitted conduct not only denies criminal defendants their Sixth Amendment right to a&nbsp;jury trial, but also denies the community their proper role in overseeing the administration of criminal justice.</p> <p>Moreover, it’s especially important to address acquitted conduct sentencing now, given how it reinforces and exacerbates the larger problem of coercive plea bargaining. Today, jury trials have been all but replaced by guilty pleas as the baseline for criminal adjudication, and there is ample reason to doubt whether the bulk of these pleas are truly voluntary. And as Judge Patricia Millett of the D.C. Circuit <a href="https://law.justia.com/cases/federal/appellate-courts/cadc/08-3037/08-3037-2015-12-22.html">recently explained</a>, “factoring acquitted conduct into sentencing decisions imposes almost insurmountable pressure on defendants to forgo their constitutional right to a&nbsp;trial by jury. Defendants will face all the risks of conviction, with no practical upside to acquittal unless they run the board and are absolved of <em>all</em> charges.” <span>Precluding sentences based on acquitted conduct would therefore be a&nbsp;small but vital safeguard against the wholesale erosion of the jury trial itself.</span></p> <p><span>Fortunately, both the Supreme Court and Congress will soon have opportunities to clarify that acquitted conduct sentencing is unjust and unconstitutional. First, on the judicial side, the <a href="https://www.supremecourt.gov/DocketPDF/19/19-107/108820/20190722132302335_19-_PetitionForAWritOfCertiorari.pdf">cert petition</a> currently pending before the Court in <em><a href="https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public%5C19-107.html">Asaro v. United States</a>&nbsp;</em>explicitly raises the question of “[w]</span>hether the Fifth and Sixth Amendments prohibit a&nbsp;federal court from basing a&nbsp;criminal defendant’s sentence on conduct underlying a&nbsp;charge for which the defendant was acquitted by a&nbsp;jury.” The <a href="https://www.supremecourt.gov/DocketPDF/19/19-107/116289/20190918175122159_Asaro%20v.%20United%20States%20Cato%20amicus%20brief.pdf">Cato Institute</a>, <a href="https://www.supremecourt.gov/DocketPDF/19/19-107/112113/20190813102619041_19-107%20Amicus%20Brief%20of%20Due%20Process%20Institute.pdf">Due Process Institute</a>, <a href="https://www.supremecourt.gov/DocketPDF/19/19-107/116280/20190918163807853_19-107%20-%20TSAC%20-%20Brief%20of%20the%20NAFD%20and%20FAMM.pdf">National Association of Federal Defenders, and FAMM</a> all filed briefs in support of this petition, and there is good reason to think that many of the Justices will be interested. Both Justice Thomas and Justice Ginsburg joined the&nbsp;<a href="https://www.law.cornell.edu/supremecourt/text/13-10026">dissent from denial of certiorari in the <em>Jones</em> case</a>&nbsp;from 2014, in which Justice Scalia explicitly called upon the Court to clarify that acquitted conduct sentencing violates the Sixth Amendment, and that the Court’s history of evading that question “has gone on long enough.” Justice Kavanaugh, back when he was a&nbsp;judge on the D.C. Circuit, also <a href="https://law.justia.com/cases/federal/appellate-courts/cadc/08-3037/08-3037-2015-12-22.html">repeatedly criticized</a> the practice.</p> <p>But key members of Congress are also moving to eliminate acquitted conduct sentencing. Just today, a&nbsp;bipartisan group of Senators, including Dick Durbin (D‑IL), Chuck Grassley (R‑IA), Patrick Leahy (D‑VT), Thom Tillis (R‑NC), Cory Booker (D‑NJ), and Mike Lee (R‑UT), introduced the “Prohibiting Punishment of Acquitted Conduct Act of 2019.” According to the <a href="https://img1.wsimg.com/blobby/go/e92afdcc-9a38-4bb1-a4e7-44c54975c6b9/downloads/DURBIN.pdf?ver=1569519723485">Senate’s press release</a>, the bill would “preclude a&nbsp;court of the United States from considering, except for purposes of mitigating a&nbsp;sentence, acquitted conduct at sentencing,” and it would define “acquitted conduct” as “acts for which a&nbsp;person was criminally charged and adjudicated not guilty after trial in a&nbsp;Federal, State, Tribal, or Juvenile court, or acts underlying a&nbsp;criminal charge or juvenile information dismissed upon a&nbsp;motion for acquittal.” The bill has also been endorsed by a&nbsp;diverse, cross‐​ideological array of dozens of different public interest groups, including the ACLU, American Bar Association, American Conservative Union, Due Process Institute, Innocence Project, and Koch Industries (as a&nbsp;general matter, the Cato Institute does not endorse proposed legislation).</p> <p>Whether through judicial or legislative action, or both, the unconstitutional scourge of acquitted conduct sentencing must be abolished — and it looks like that time may be coming soon.</p> Thu, 26 Sep 2019 16:15:13 -0400 Jay Schweikert https://www.cato.org/blog/addressing-gross-injustice-acquitted-conduct-sentencing Oversight Hearing on Policing Practices https://www.cato.org/publications/testimony/oversight-hearing-policing-practices Jay Schweikert <div class="lead text-default"> <p>Dear Chairman Nadler, Ranking Member Collins, and Members of the Committee:</p> <p>My name is Jay Schweikert, and I&nbsp;am an attorney and a&nbsp;policy analyst with the Cato Institute’s Project on Criminal Justice. I&nbsp;would like to thank the Committee on the Judiciary for convening this Oversight Hearing on Policing Practices, on September 19, 2019, and for providing the opportunity to express my views regarding this topic. In particular, I&nbsp;am writing to discuss the harmful effect that the judicial doctrine of qualified immunity has on accountability for members of law enforcement, police‐​citizen relations, and the criminal justice system in general.</p> </div> , <div class="text-default"> <p>In the landmark Supreme Court case of <em>Marbury v. Madison</em>, Chief Justice John Marshall stated that: “The government of the United States has been emphatically termed a&nbsp;government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a&nbsp;vested legal right.”<sup><a href="#_endn1" id="_endref1">1</a></sup> Stated differently, the substance of constitutional rights means little if state actors can violate those rights with impunity. Accountability must therefore be a&nbsp;top priority for anyone interested in policing practices and criminal justice reform more generally.</p> <p>Congress actually created a&nbsp;robust means for ensuring the accountability of state and local officials all the way back in 1871, when it passed what would become our primary civil rights statute. That statute is presently codified at 42 U.S.C. § 1983, and thus is usually called “Section 1983” after its place in the U.S. Code. It was first passed by the Reconstruction Congress as part of the 1871 Ku Klux Klan Act, which itself was part of a&nbsp;series of “Enforcement Acts” designed to help secure the promise of liberty and equality enshrined in the then‐​recently enacted Fourteenth Amendment.<sup><a href="#_endn2" id="_endref2">2</a></sup></p> <p>As currently codified, the statute states as follows:</p> </div> , <blockquote class="blockquote"> <div> <p>Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .…<sup><a href="#_endn3" id="_endref3">3</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>In other words, the statute states simply and clearly that any state actor who violates someone’s constitutional rights “shall be liable to the party injured.” The purpose behind creating such a&nbsp;cause of action is quite simple: individuals whose rights are violated deserve a&nbsp;remedy, and at a&nbsp;structural level, the potential for such a&nbsp;remedy ensures accountability among public officials.</p> <p>But the Supreme Court has effectively gutted the effect of Section 1983 through the invention of a&nbsp;doctrine called “qualified immunity.” This judicial doctrine shields state and local officials from liability, even when they act unlawfully, so long as their actions did not violate “clearly established law.“<sup><a href="#_endn4" id="_endref4">4</a></sup> In practice, this is a&nbsp;huge hurdle for civil rights plaintiffs, because the Court has repeatedly insisted that “clearly established law must be ‘particularized’ to the facts of the case.“<sup><a href="#_endn5" id="_endref5">5</a></sup> In other words, to overcome qualified immunity, civil rights plaintiffs generally must show not just a&nbsp;clear legal rule, but a&nbsp;prior case in the relevant jurisdiction with functionally identical facts.</p> <p>Although the Supreme Court has always purported to say that an exact case on point is not strictly necessary,<sup><a href="#_endn6" id="_endref6">6</a></sup> it has also stated that “existing precedent must have placed the statutory or constitutional question beyond debate.“<sup><a href="#_endn7" id="_endref7">7</a></sup> And in practice, lower courts routinely hold that even seemingly minor factual distinctions between a&nbsp;case and prior precedent will suffice to hold that the law is not “clearly established.” To give just a&nbsp;couple concrete examples:</p> <ul> <li>In <strong><em>Baxter v. Bracey</em></strong>,<sup><a href="#_endn8" id="_endref8">8</a></sup> the Sixth Circuit granted qualified immunity to two police officers who deployed a&nbsp;police dog against a&nbsp;suspect who had already surrendered and was sitting on the ground with his hands up. A&nbsp;prior case had already held that it was unlawful to use a&nbsp;police dog without warning against an unarmed suspect laying on the ground with his hands at his sides.<sup><a href="#_endn9" id="_endref9">9</a></sup> But despite the apparent factual similarity, the <em>Baxter</em> court found this prior case insufficient to overcome qualified immunity because “<em>Baxter</em> does not point us to any case law suggesting that <em>raising his hands, on its own</em>, is enough to put [the defendant] on notice that a&nbsp;canine apprehension was unlawful in these circumstances.“<sup><a href="#_endn10" id="_endref10">10</a></sup> In other words, prior case law holding unlawful the use of police dogs against non‐​threatening suspects who surrendered by <em>laying on the ground</em> did not “clearly establish” that it was unlawful to deploy police dogs against non‐​threatening suspects who surrendered by <em>sitting on the ground with their hands up</em>.</li> <li>In <strong><em>Latits v. Philips</em></strong>,<sup><a href="#_endn11" id="_endref11">11</a></sup> the Sixth Circuit granted immunity to a&nbsp;police officer who rammed his vehicle into the car of a&nbsp;fleeing suspect, drove the suspect off the road, then jumped out of his vehicle, ran up to the suspect’s window, and shot him three times in the chest, killing him. The court acknowledged that several prior cases had clearly established that “&nbsp;‘shooting a&nbsp;driver while positioned to the side of his fleeing car violates the Fourth Amendment, absent some indication suggesting that the driver poses more than a&nbsp;fleeting threat.’&nbsp;”<sup><a href="#_endn12" id="_endref12">12</a></sup> Even though that statement would seem to govern this case exactly, the majority held that these prior cases were “distinguishable” because they “involved officers confronting a&nbsp;car in a&nbsp;parking lot and shooting the non‐​violent driver as he attempted to <em>initiate</em> flight,” whereas here “Phillips shot Latits after Latits led three police officers on a&nbsp;car chase for several minutes.“<sup><a href="#_endn13" id="_endref13">13</a></sup> The lone dissenting judge in this case noted that “the degree of factual similarity that the majority’s approach requires is probably impossible for any plaintiff to meet.“<sup><a href="#_endn14" id="_endref14">14</a></sup></li> </ul> <p>Thus, given how the “clearly established law” test works in practice, whether victims of official misconduct will get redress for their injuries turns not on whether state actors broke the law, nor even on how serious their misconduct was, but simply on the happenstance of whether the relevant case law happens to include prior cases with fact patterns that match their own. To illustrate the absurdity of this principle, consider that if a&nbsp;resident of Texarkana has their rights violated by local law enforcement, whether or not they could successfully sue for relief under Section 1983 might well turn on whether the misconduct occurred in Texas (the Fifth Circuit), Arkansas (the Eighth), or Oklahoma (the Tenth).</p> <p>Perhaps most disturbingly, the doctrine can actually have the perverse effect of making it <em>harder</em> to overcome qualified immunity when misconduct is <em>more</em> egregious — precisely because extreme, egregious misconduct is less likely to have arisen in prior cases. There is no shortage of cases illustrating this point, but the following two from the last few months are representative:</p> <ul> <li><strong><em>Corbitt v. Vickers:</em></strong><sup><a href="#_endn15" id="_endref15">15</a></sup> Police officers pursued a&nbsp;criminal suspect into an unrelated family’s backyard, at which time one adult and six minor children were outside. The officers demanded they all get on the ground, everyone immediately complied, and the police took the suspect into custody. But then the family’s pet dog walked into the scene, and without any provocation or threat, one of the deputy sheriffs started firing off shots at the dog. He repeatedly missed, but did strike a&nbsp;ten‐​year‐​old who was still lying on the ground nearby. The child suffered severe pain and mental trauma and has to receive ongoing care from an orthopedic surgeon. The Eleventh Circuit granted qualified immunity on the grounds that no prior case law involved the “unique facts of this case.“<sup><a href="#_endn16" id="_endref16">16</a></sup> One judge did dissent, reasonably explaining that “no competent officer would fire his weapon in the direction of a&nbsp;nonthreatening pet while that pet was surrounded by children.“<sup><a href="#_endn17" id="_endref17">17</a></sup></li> <li><strong><em>Kelsay v. Ernst:</em></strong><sup><a href="#_endn18" id="_endref18">18</a></sup> Melanie Kelsay was playing at a&nbsp;public pool with her friend, when some onlookers thought her friend might be assaulting her and called the police. The police arrested her friend, even though she repeatedly told them he had not assaulted her. While talking with a&nbsp;deputy, Matt Ernst, Kelsay saw that her daughter had gotten into an argument with a&nbsp;bystander and tried to go check on her. Ernst grabbed her arm and told her to “get back here,” but Kelsay again said she needed to go check on her daughter, and began walking toward her. Ernst then ran up behind her, grabbed her, and slammed her to the ground in a “blind body slam” maneuver, knocking her unconscious and breaking her collarbone. The Eighth Circuit granted Ernst qualified immunity on the grounds that no prior cases specifically held that “a deputy was forbidden to use a&nbsp;takedown maneuver to arrest a&nbsp;suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.“<sup><a href="#_endn19" id="_endref19">19</a></sup></li> </ul> <p>But qualified immunity does not merely harm the <em>victims</em> of police misconduct — it also hurts the law enforcement community itself, by depriving officers of the public trust and confidence that is necessary for them to do their jobs safely and effectively. Policing is dangerous, difficult work, and it cannot be done safely and effectively without the trust and cooperation of communities. Unsurprisingly then, public perception of accountability is absolutely essential to police effectiveness.<sup><a href="#_endn20" id="_endref20">20</a></sup></p> <p>Yet in the wake of many high‐​profile police shootings, public confidence in law enforcement has been plummeting. Indeed, by 2015, Gallup reported that public trust in police officers had reached a&nbsp;twenty‐​two‐​year low.<sup><a href="#_endn21" id="_endref21">21</a></sup> Although only a&nbsp;small proportion of officers are involved in fatal encounters in any given year,<sup><a href="#_endn22" id="_endref22">22</a></sup> that fraction still generates a&nbsp;huge number of fatalities in absolute terms. For example, between 2015 and 2017, police officers fatally shot nearly a&nbsp;thousand Americans each year,<sup><a href="#_endn23" id="_endref23">23</a></sup> with tens of thousands more wounded.<sup><a href="#_endn24" id="_endref24">24</a></sup> And the widespread prevalence of cell phones, combined with the ability to share videos on YouTube and social media, means that footage of police shootings are being documented and shared like never before.<sup><a href="#_endn25" id="_endref25">25</a></sup></p> <p>Qualified immunity therefore exacerbates what is already a&nbsp;crisis of confidence in law enforcement. Even if it is only a&nbsp;small proportion of the law enforcement community that routinely violates the law, ordinary citizens cannot help but accurately observe that even those officers will rarely be held accountable. Even police officers share this assessment — in a&nbsp;2017 survey of over 8,000 officers, 72% disagreed with the statement that “officers who consistently do a&nbsp;poor job are held accountable.“<sup><a href="#_endn26" id="_endref26">26</a></sup></p> <p>The antidote to this crisis is exactly the sort of robust accountability that Section 1983 is supposed to provide, but which qualified immunity severely undercuts. When judges routinely excuse egregious misconduct on technicalities, then <em>all</em> members of law enforcement suffer a&nbsp;reputational loss. Qualified immunity thus prevents responsible law enforcement officers from overcoming negative perceptions about policing, and instead protects only the minority of police who routinely break the law, thereby eroding relationships between police and their communities.</p> <p>For these reasons, amongst many others, opposition to qualified immunity enjoys more cross‐​ideological and cross‐​professional support then nearly any other public policy issue today. A&nbsp;recent <em>amicus</em> brief challenging the doctrine included, in the words of one Judge Don Willett of the Fifth Circuit, “perhaps the most diverse amici ever assembled“<sup><a href="#_endn27" id="_endref27">27</a></sup> — including (but not limited to) the ACLU, the Alliance Defending Freedom, Americans for Prosperity, the Law Enforcement Action Partnership, the NAACP, and the Second Amendment Foundation.<sup><a href="#_endn28" id="_endref28">28</a></sup></p> <p>The Supreme Court may have created the doctrine of qualified immunity, but Congress has the power to fix it. By clarifying that Section 1983 means what it says — that state actors who violate constitutional rights “shall be liable to the party injured” — Congress can reinvigorate the best means we have of ensuring accountability for members of law enforcement, and also help restore the public trust and confidence that police officers need to do their jobs safely and effectively.</p> </div> Thu, 19 Sep 2019 12:15:27 -0400 Jay Schweikert https://www.cato.org/publications/testimony/oversight-hearing-policing-practices Vincent Asaro v. United States https://www.cato.org/publications/legal-briefs/vincent-asaro-v-united-states Clark Neily, Jay Schweikert <div class="lead text-default"> <p>Vincent Asaro was tried in 2015 for charges related to his alleged participation in a&nbsp;1978 robbery and a&nbsp;1969 murder — the jury acquitted him of all charges. Two years later, he pleaded guilty to a&nbsp;separate offense, and he was sentenced by the same judge who had presided over his earlier trial. Even though the Guidelines range for this offense was only 33 to 41 months, the court sentenced Asaro to 96 months’ imprisonment, giving “particular weight” to the evidence presented at Asaro’s earlier trial. Even though the jury had fully acquitted him in this trial, the judge explicitly noted that she was “firmly convinced” that the government had proven the charged crimes, and thus essentially did an end‐​run around the acquittal by severely increasing his sentence for the subsequent offense.</p> </div> , <div class="text-default"> <p>The Second Circuit affirmed Asaro’s sentence, and Asaro filed a&nbsp;cert petition, asking the Supreme Court to resolve a&nbsp;fundamental question of criminal procedure that has now been percolating for many years — do the Fifth and Sixth Amendments allow a&nbsp;federal court to sentence a&nbsp;defendant based on conduct underlying a&nbsp;charge for which the defendant was acquitted by a&nbsp;jury? Cato has filed an&nbsp;<em>amicus</em>&nbsp;brief in support of the petition, arguing that the practice of sentencing defendants based on acquitted conduct is inherently at odds with the understanding of the jury trial in the Anglo‐​American legal tradition, and especially contrary to the special sanctity and unassailable finality of jury acquittals. Permitting sentencing based on acquitted conduct not only denies criminal defendants their Sixth Amendment right to a&nbsp;jury trial, but also denies the community their proper role in overseeing the administration of criminal justice. As three members of the Court have recently noted, “[t]his has gone on long enough.”&nbsp;<em>Jones v. United States</em>, 135&nbsp;S. Ct. 8, 9 (2014)&nbsp;(Scalia, J., joined by Thomas &amp;&nbsp;Ginsburg, JJ., dissenting from denial of certiorari).</p> <p>It is especially important to protect the sanctity of jury acquittals now, in light of the near‐​disappearance of the criminal jury trial generally. Today, jury trials have been all but replaced by plea bargaining as the baseline for criminal adjudication, and there is ample reason to doubt whether the bulk of these pleas are truly voluntary. If defendants know they may be sentenced based even on acquitted conduct, that massively ratchets up the pressure to accept a&nbsp;plea in any case where the prosecutor charges multiple, related offenses, as even acquittals on the more serious charges are no guarantee against harsh sentencing. Precluding sentences based on acquitted conduct would therefore be a&nbsp;small but vital safeguard against the wholesale erosion of the jury trial itself.</p> </div> Wed, 18 Sep 2019 08:51:10 -0400 Clark Neily, Jay Schweikert https://www.cato.org/publications/legal-briefs/vincent-asaro-v-united-states Dissenters in Fifth Circuit Qualified Immunity Case Misunderstand the Relationship between “Originalism” and Section 1983 https://www.cato.org/blog/dissenters-fifth-circuit-qualified-immunity-case-misunderstand-relationship-between-originalism Jay Schweikert <p><a href="https://www.cato.org/blog/two-recent-en-banc-decisions-exemplify-injustice-impracticality-persistent-confusion-inherent">Yesterday</a> I&nbsp;wrote about two recent en banc decisions from the Fifth and Eighth Circuits on the subject of <a href="https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/">qualified immunity</a>, and how those cases fit into the rising tide of opposition to the doctrine generally. But I&nbsp;wanted to expand upon a&nbsp;point of disagreement between two of the dissents in <a href="http://www.ca5.uscourts.gov/opinions/pub/14/14-10228-CV3.pdf"><em>Cole v. Hunter</em></a> (the Fifth Circuit case), which may prove to be one of the central questions if and when the Supreme Court decides to reconsider the doctrine — namely, the relationship between qualified immunity, Section 1983, and originalism. I’ll note that both <a href="https://reason.com/2019/08/20/the-fifth-circuit-divides-on-qualified-immunity-and-originalism/">Josh Blackman</a> and <a href="https://reason.com/2019/08/23/judge-don-willett-butts-heads-with-fellow-trump-appointees-over-qualified-immunity-for-cops/">Damon Root</a>&nbsp;have already written about this aspect of the&nbsp;<em>Cole</em> decision, but as someone who’s spent the better part of the last two years waging a&nbsp;campaign against qualified immunity I&nbsp;wanted to offer my take on the many ways in which Judges James Ho and Andrew Oldham seriously misunderstand qualified immunity, Section 1983, and originalism itself.&nbsp;<br><br /> <br> As I&nbsp;noted previously, Judge Don Willett — a&nbsp;Trump appointee and one of the judges on his shortlist for the Supreme Court — has emerged as a&nbsp;prominent critic of qualified immunity, and has now repeatedly urged the Supreme Court to reconsider the doctrine. A&nbsp;few months ago, in <em><a href="http://www.ca5.uscourts.gov/opinions/pub/17/17-50518-CV1.pdf">Zadeh v. Robinson</a></em>, he explained how “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the <em>first</em> to behave badly.” Judge Willett again picked up this theme in his separate dissent in&nbsp;<em>Cole</em>, beginning his opinion with the assertion that “[t]he entrenched, judge‐​invented qualified immunity regime ought not be immune from thoughtful reappraisal.” (Note that Judge Willett agreed with the other dissenters that, under <em>current</em> precedent, the defendants in&nbsp;<em>Cole</em> were entitled to immunity, which is why his opinion was also a&nbsp;dissent, even though it takes a&nbsp;very different approach.) <br><br /> <br> Perhaps sensing that the tide is turning against qualified immunity, Judges Ho and Oldman — both Trump appointees themselves — wrote separately to respond to the general idea that qualified immunity should be reconsidered. In particular, they say the following about the “originalist” critique of qualified immunity — i.e., the <a href="http://www.californialawreview.org/print/2-is-qualified-immunity-unlawful/">historical fact</a> that the common law of 1871 (when Section 1983 was first passed) provided absolutely nothing like the sweeping, across‐​the‐​board defense for state officials that characterizes qualified immunity today: <br> </p> <blockquote><p>[S]ome have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders’ Constitution.… As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a&nbsp;lower court to follow Supreme Court precedent, a&nbsp;principled commitment to originalism provides no basis for subjecting these officers to trial. <br><br /> <br> The originalist debate over qualified immunity may seem fashionable to some today. But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a&nbsp;principled originalist would re‐​evaluate established&nbsp;doctrines. <em>See Crawford‐​El v. Britton</em>, 523 U.S. 574, 611 – 12 (1998) (Scalia, J., joined by Thomas, J., dissenting). <br><br /> <br> A&nbsp;principled originalist would not cherry pick which rules to revisit based on popular whim. A&nbsp;principled originalist would fairly review decisions that favor plaintiffs as well as police officers. As Justice Scalia explained in a&nbsp;dissent joined by Justice Thomas, a&nbsp;principled originalist would evenhandedly examine disputed precedents that expand, as well as limit, § 1983 liability: <br><br /> <br> “[O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has not purported to be faithful to the common‐​law immunities that existed when § 1983 was enacted .… [But] [t]he § 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a&nbsp;century earlier. I&nbsp;refer, of course, to the holding of <em>Monroe v. Pape</em>, 365 U.S. 167 (1961), which converted an 1871 statute covering constitutional violations committed “under color of any statute, ordinance, regulation, custom, or usage of any State,” Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into a&nbsp;statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law.”</p> </blockquote> <p>In other words, qualified immunity may well lack any plausible textual or historical basis. But because, say Judges Ho and Oldham, the Supreme Court erroneously&nbsp;<em>expanded</em> the reach of Section 1983&nbsp;in&nbsp;<em>Monroe v. Pape (</em>by holding that state officials could be sued even when they were acting contrary to a&nbsp;state’s own laws), then two wrongs make a&nbsp;right, and we should just keep qualified immunity as is, as a&nbsp;kind of compensating error. Indeed, they conclude this section of the opinion by saying: “If we’re not going to do it right, then perhaps we shouldn’t do it at all” — with “it” here meaning, actually interpret statutes as written. <br><br /> <br> Lest this argument seem like an abstruse, academic rejoinder, I&nbsp;can personally attest, having now participated in or observed several debates on qualified immunity, that this is <em>the</em> most frequently and fervently raised rebuttal to the otherwise insurmountable assertion that modern qualified immunity lacks any plausible historical basis. But despite its veneer of reasonableness, this “two wrongs make a&nbsp;right” argument is so deeply, fundamentally flawed, on so many levels, that it’s worth spelling out each of them in detail: <br><br /> <br><em><span>First</span></em>, perhaps a&nbsp;pedantic point, but Judges Ho and Oldman’s august reference to the “Founder’s Constitution” is out of place in this discussion. Qualified immunity is not a&nbsp;constitutional doctrine; it is, nominally, a&nbsp;gloss on the statute currently codified at&nbsp;<a href="https://www.law.cornell.edu/uscode/text/42/1983">42 USC § 1983</a>, but which was originally enacted by the Reconstruction Congress in 1871. And as even the Supreme Court has acknowledged,&nbsp;“the statute on its face does not provide for <em>any</em> immunities.” <em>Malley v. Briggs</em>, 475 U.S. 335, 342 (1986). Thus, the only conceivable legal basis for qualified immunity is the Supreme Court’s false assertion that&nbsp;“[c]ertain immunities were so well established in 1871, when §&nbsp;1983 was enacted, that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” <em>Buckley v. Fitzsimmons</em>, 509 U.S. 259, 268 (1993). I&nbsp;will not go into detail here explaining why this defense of the doctrine fails utterly as a&nbsp;matter of actual historical fact, but <a href="http://www.californialawreview.org/print/2-is-qualified-immunity-unlawful/">Will Baude</a> has addressed the question extensively, and I&nbsp;summarize the issue <a href="https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/">here</a>. Suffice to say, the debate here isn’t over “originalism” as an overarching theory of constitutional interpretation, and isn’t really about the Constitution at all — we’re talking about how to correctly interpret and apply a&nbsp;particular statute. <br><br /> <br><em><span>Second</span></em>, Judges Ho and Oldman (and Justice Scalia, in his&nbsp;<em>Crawford‐​El</em> opinion) seem to take it as a&nbsp;given that&nbsp;<em>Monroe v. Pape</em> was wrongly decided, which is what gives them justification to accept the obvious (but in their view, counter‐​balancing) errors with qualified immunity itself. But that assumption simply isn’t justified — indeed, there’s a&nbsp;very good&nbsp;<em>originalist</em> argument that&nbsp;<em>Monroe</em> was, in fact, correctly decided, which of course would entirely negate this “two wrongs make a&nbsp;right” defense of qualified immunity. To restate Justice Scalia’s (and by extension, Judges Ho and Oldman’s) criticism of&nbsp;<em>Monroe</em>: The text of Section 1983 creates liability for those who act “under color of any statute, ordinance, regulation, custom, or usage of any State.” Thus, in Justice Scalia’s view, a&nbsp;state official can only be liable under Section 1983 if they were, in fact, acting in accordance with state law. Therefore, by holding that state officials could be liable even when their actions were&nbsp;<em>not</em> authorized by state law, the&nbsp;<em>Monroe</em> Court massively expanded liability under Section 1983, in contravention of the statutory language. <br><br /> <br> Though superficially plausible, the problem with this argument is that it glosses over the meaning of the phrase “under color of.” After all, the statute&nbsp;<em>could&nbsp;</em>have been written to cover violations committed “<strong>in accordance with</strong> any statute, ordinance, regulation, custom, or usage, of any State.” If&nbsp;<em>that</em> were what the statute said, Justice Scalia’s criticism of&nbsp;<em>Monroe</em> would be well taken. But, as a&nbsp;historical,&nbsp;<em>originalist</em> matter, that is simply not what the phrase “under color of” means. To the contrary, this phrase is actually a&nbsp;longstanding term‐​of‐​art which was well understood to encompass&nbsp;<em>false</em> claims to authority. As detailed by Steven Winter in an <a href="https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2391&amp;context=mlr">article on exactly this subject</a>, the use of this phrase goes back more than 500&nbsp;years,&nbsp;to an English bail bond statute that voided obligations taken by sheriffs “by colour of their offices,” if they failed to comply with statutory requirements. In other words, it encompassed illegal acts by government agents who abused or exceeded their statutory authority — which is exactly the sort of unlawful conduct recognized by&nbsp;<em>Monroe</em>. Therefore, contra Justice Scalia’s suggestion in&nbsp;<em>Crawford‐​El</em>, a&nbsp;faithfully originalist understanding of Section 1983 would seem to&nbsp;<em>support</em> the result in&nbsp;<em>Monroe</em>. And if that’s the case, then obviously the whole “two wrongs make a&nbsp;right” theory collapses. <br><br /> <br><em><span>Third</span></em>, let’s assume — as I&nbsp;do not think is the case — that&nbsp;<em>Monroe v. Pape</em> was incorrectly decided. If we are unwilling to revisit that decision on “originalist” grounds, is that a&nbsp;sufficient reason to refuse to reconsider qualified immunity as well? Absolutely not. For one, even&nbsp;<em>if</em>&nbsp;<em>Monroe</em> were wrong, it meets absolutely all the traditional criteria for respect as precedent — even if incorrect, the question is at the very least a&nbsp;close call, in light of the textual/​historical argument I&nbsp;noted above; it has produced a&nbsp;clear, unambiguous rule, which lower courts routinely apply without any confusion or disagreement; and it has been thoroughly accepted by both the judiciary and the general public as legitimate and appropriate. <br><br /> <br> In sharp contrast, modern qualified immunity doctrine is at the opposite end of the spectrum on all of these criteria. No one — absolutely no one — will look you in the eye with a&nbsp;straight face and tell you that contemporary qualified immunity doctrine represents the&nbsp;<em>best</em> interpretation of the text and history Section 1983. As evidenced by Justice Scalia’s&nbsp;<em>Crawford‐​El</em> opinion and Judges Ho and Oldham’s dissent in&nbsp;<em>Cole</em>, the judicial defenders of qualified immunity aren’t even trying to make this argument.&nbsp;Indeed, the most robust defense of the doctrine that I’m aware of is the recent piece by Aaron Nielson and Chris Walker, appropriately titled “<a href="http://ndlawreview.org/wp-content/uploads/2018/08/3-Nielson-Walker.pdf">A Qualified Defense of Qualified Immunity</a>” — and even there, the most they argue is that the historical evidence isn’t&nbsp;<em>quite</em>&nbsp;as one‐​sided as Will Baude suggests, and that while&nbsp;<em>some</em> form of qualified immunity might be justified, the Court’s current doctrine is still in need of correction. <br><br /> <br> Moreover, in contrast to the clear rule from&nbsp;<em>Monroe</em>, the Court’s “clearly established law” standard has proven hopelessly amorphous, malleable, and incapable of consistent, predictable application in lower courts. And as evidenced by the diverse and growing chorus of judges, academics, and public‐​policy voices calling for the Supreme Court to revise or abolish the doctrine, it has hardly been accepted as legitimate. Far from being a&nbsp;mere technical error, this noxious doctrine regularly denies relief to victims of egregious state misconduct, undermines accountability for government agents at a&nbsp;structural level, and exacerbates the national crisis of confidence in law enforcement generally. Thus, even&nbsp;<em>if</em> both&nbsp;<em>Monroe</em> and qualified immunity merit originalist criticism, there is a&nbsp;far, far stronger case for reexamining the latter than the former. <br><br /> <br><em><span>Fourth</span></em>, setting aside the object‐​level questions of whether&nbsp;<em>Monroe</em> was correct, how bad it is compared to qualified immunity, etc., we should reject the “two wrongs make a&nbsp;right” approach to judicial decision‐​making at a&nbsp;fundamental level. Yes, the Supreme Court sometimes reaches the wrong answer. Yes, sometimes those wrong answers will distort other areas of law. But in a&nbsp;world where we’re going to predictably&nbsp;<em>disagree</em> on which cases are correct or not, “you got this case wrong so I’m allowed to get this other case wrong” is a&nbsp;license for endless, unresolvable turmoil. If qualified immunity has gone “too far” in correcting for the supposed mistake in&nbsp;<em>Monroe</em>, are judges allowed to distort the meaning of&nbsp;<em>other&nbsp;</em>statutes to fix this problem? What compensating errors will be necessary to address the distortion to&nbsp;<em>those</em> statutes? If we all agree the Supreme Court has made&nbsp;<em>some</em> mistakes, then “two wrongs make a&nbsp;right” becomes a&nbsp;fully general argument for defending flawed legal conclusions, so long as they can plausibly be tied to a&nbsp;past alleged mistake. That way lies madness, not the rule of law. <br><br /> <br> More generally, Judges Ho and Oldham suggest that, if we’re going to reconsider qualified immunity on originalist grounds, we’re somehow honor‐​bound to reconsider&nbsp;<em>Monroe</em> as well. But that’s just not how doctrine is developed in our adversarial system. The Supreme Court doesn’t act as a&nbsp;regulatory body, issuing advisory opinions on several related subjects simultaneously so as to ensure general harmony in the case law; rather, it resolves disputes in the individual cases it decides to take. Textualism and originalism, at their best, aim to provide a&nbsp;principled, predictable, value‐​neutral means of deciding cases. Of course, some questions will still be hard even under this approach, and how originalists should deal with non‐​originalist precedent is a&nbsp;famously thorny problem. But the best that judges can do is try to get the right answer in each case that comes before them — and the “two wrongs make a&nbsp;right” theory renders this principled approach impossible. <br><br /> <br> * * * <br><br /> <br> In my view, the opponents of qualified immunity have made a&nbsp;persuasive argument that the doctrine is utterly without legal or historical justification, that it is impossible to apply with the consistency or predictability that generally warrant respect for precedent in the first place, and that is actively corrupting what would otherwise be the best means we have of ensuring accountability for government agents. That argument deserves to be met on its own terms. If the defenders of qualified immunity think&nbsp;<em>Monroe</em> is wrong too, then fine. Let them make that argument. Let them engage in the detailed textual and historical analysis that would actually be necessary to justify it. Let them convince the judiciary and the public at large that this error is so egregious and harmful that it warrants reconsideration. I’m quite skeptical these folks&nbsp;<em>actually</em> want to make such an argument, but if they do, it deserves to be met on its own terms as well. But it is cowardly, unprincipled, and decidedly <em>anti</em>-originalist to refuse to meet the challenge to qualified immunity face‐​to‐​face, just because there’s some other alleged mistake to hide behind.</p> Fri, 23 Aug 2019 17:21:06 -0400 Jay Schweikert https://www.cato.org/blog/dissenters-fifth-circuit-qualified-immunity-case-misunderstand-relationship-between-originalism Two Recent en banc Decisions Exemplify the Injustice, Impracticality, and Persistent Confusion Inherent to Qualified Immunity https://www.cato.org/blog/two-recent-en-banc-decisions-exemplify-injustice-impracticality-persistent-confusion-inherent Jay Schweikert <p>In the last week, the Fifth and the Eighth Circuits, sitting en banc, have each issued major, fractured decisions on the subject of <a href="https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/">qualified immunity</a> — the judge‐​made defense to civil rights claims under <a href="https://www.law.cornell.edu/uscode/text/42/1983">Section 1983</a>,&nbsp;which shields state actors from liability for their misconduct, even when they break the law. In <em><a href="http://www.ca5.uscourts.gov/opinions/pub/14/14-10228-CV3.pdf">Cole v. Hunter</a>,</em> decided yesterday, the Fifth Circuit, in an 11 – 7 decision, affirmed the denial of summary judgment for two defendant police officers, who shot a&nbsp;teenage boy and then lied about what happened. The lawsuit brought by the victim and his family will therefore be able to go to trial, making this one of the rare instances where a&nbsp;civil rights plaintiff is able to overcome qualified immuniity. But in <em><a href="https://cases.justia.com/federal/appellate-courts/ca8/17-2181/17-2181-2019-08-13.pdf?ts=1565710223">Kelsay v. Ernst</a></em>, decided last week, the Eighth Circuit held, 8 – 4, that a&nbsp;police officer was entitled to qualified immunity, after he had grabbed a&nbsp;small woman in a&nbsp;bear hug and slammed her to ground — because she walked away from him. Although the courts here reached different outcomes, both cases amply illustrate the legal, practical, and moral infirmities with qualified immunity. The fractured decisions and many separate opinions in both cases also make clear that the doctrine is on increasingly shaky footing with both the judiciary and the general public. <br><br /> <br><strong>I. <em>Cole v. Hunter</em>:&nbsp;A&nbsp;rare but narrow victory for a&nbsp;victim of egregious police misconduct</strong> <br><br /> <br> This Fifth Circuit case arose out of an incident in Garland, Texas in October 2010, when police were looking for Ryan Cole, then a&nbsp;17‐​year‐​old boy, who had reportedly been walking around the neighborhood with a&nbsp;handgun. Ryan was seen by some officers and ordered to stop, but Ryan pointed the gun at his own head and walked away toward a&nbsp;wooded area. When Ryan reemerged, a&nbsp;group of officers observed him for about five seconds and did not announce themselves or give any warning. Then, while Ryan was facing away from them with the gun still pointed at his head, one or more of the officers fired at him, striking him several times and causing him to involuntary discharge his own gun into his skull and brain.&nbsp;When two of the officers were questioned after the shooting, they falsely claimed that Ryan had turned to face them and pointed his gun at them before they fired — an assertion belied by ample forensic and physical evidence (specifically, the location of Ryan’s bullet wounds, and the location of shell casings and Ryan’s blood). <br><br /> <br> Ryan and his family brought a&nbsp;civil rights suit against these officers, claiming that they used excessive force and fabricated evidence in violation of Ryan’s Fourth and Fourteenth Amendment rights. The district court denied qualified immunity to the defendants at summary judgment, a&nbsp;panel of the Fifth Circuit affirmed, and the Fifth Circuit then agreed to rehear the case en banc. The court then held, 11 – 7, that a&nbsp;reasonable jury could have found that Ryan posed no threat to the officers, and that it was clearly established that “shooting a&nbsp;mentally disturbed teenager, who was pointing a&nbsp;gun the entire time at his own head and facing away from the officer, in an open outdoor area, and who was unaware of the officer’s presence because no warning was given prior to the officer opening fire, was unlawful.” Although the defendants presented a&nbsp;starkly different view of the facts, the majority correctly recognized — as courts often fail to do in qualified immunity cases! — that it lacked jurisdiction to consider the officers’ competing factual narrative in this appeal. Rather, the disputed facts would have to be resolved by a&nbsp;jury. <br><br /> <br> Seven judges dissented, however. The principal dissent, by Judge Edith Jones, accused the majority of defining “clearly established law” at too high a&nbsp;level of generality, arguing that even&nbsp;<em>if</em> the facts clearly established that Ryan posed no threat (and thus that shooting him violated the Fourth Amendment) the relevant question for purposes of qualified immunity was “whether <em>every</em> reasonable officer in this factual context would have known he could not use deadly force” — and then arguing that no prior cases involved this precise factual context.&nbsp;This framing in the abstract is dutiful to the Supreme Court’s qualilfied immunity jurisprudence, but in application, it’s clear that the degree of specificity employed by the dissent would be practically impossible to overcome. To wit, the dissent went on to say: <br> </p> <blockquote><p>[T[he importance of grounding the inquiry in a&nbsp;specific factual context cannot be overstated. In this case, if Officer Hunter had stood a&nbsp;hundred feet away from Cole, or Cole had not been turning toward the officers, or Cole had put the handgun in his pocket and wasn’t touching it, the analysis of qualified immunity could be quite different.</p> </blockquote> <p>On the one hand, the dissent is correct that the Supreme Court has insisted that immunity analysis be “particularized” to the facts of individual cases. On the other, the example of factual distinctions used by the dissent here plainly illustrate that there will never be a&nbsp;prior case involving&nbsp;<em>all</em> of the potentially relevant facts — and even the Supreme Court has purported to say that a&nbsp;case <em>exactly</em> on point is unnecessary. Thus, while the dissent’s analysis is not a&nbsp;wholly unreasonable application of existing precedent, it demonstrates how the “clearly established law” standard is inherently amorphous, and incapable of consistent, predictable application. <br><br /> <br> Most notably, Judge Don Willett filed a&nbsp;separate dissent in this case. Although he would have held that “the Supreme Court’s unflinching, increasingly emphatic application of ‘clearly established law’ compel[led] dismissal,” the bulk of his opinion is devoted to explaining that “[t]he entrenched, judge‐​invented qualified immunity regime ought not be immune from thoughtful reappraisal.” Judge Willett’s dissent therefore echoes his recent criticisms of qualified immunity in&nbsp;<em><a href="http://www.ca5.uscourts.gov/opinions/pub/17/17-50518-CV1.pdf">Zadeh v. Robinson</a></em>, although he did stress that the Supreme Court has “several ‘mend it, don’t end it’ options,” which would substantially revise the doctrine without eliminating it entirely. Also, he again discussed the <a href="https://www.cato.org/blog/cato-files-brief-challenging-qualified-immunity-for-warrantless-strip-search-of-4-year-old">Cato‐​organized cross‐​ideological&nbsp;<em>amicus</em> brief from&nbsp;<em>Doe v. Woodard</em></a>, noting that “perhaps the most ideologically diverse amici ever assembled” were urging the Supreme Court to reconsider qualified immunity. <br><br /> <br><strong>II. <em>Kelsay v. Ernst</em>: Greenlighting egregious and unnecessary police violence against the supposed victim of a&nbsp;crime</strong> <br><br /> <br> Melanie Kelsay, her three children, and an adult friend of hers were swimming at a&nbsp;public pool in Wymore, Nebraska. She and her friend were engaged in what she called “horseplay,” but some onlookers thought he might be assaulting her and called the police. The police arrested her friend and put him a&nbsp;patrol vehicle, even though she repeatedly told them he hadn’t assaulted her; they then decided to arrest <em>her</em>, the alleged victim of this non‐​crime, because she was “getting in the way of the patrol vehicle door.”&nbsp;While talking with Deputy Matt Ernst, Kelsay saw that her daughter had gotten into an argument with a&nbsp;bystander, and tried to go check on her. Ernst grabbed her arm and told her to “get back here,” but released her. Kelsay then said she needed to go check on her daughter, and again began walking toward her. At that point, without giving any further instructions, Ernst ran up behind her, grabbed her, and slammed her to the ground in a “blind body slam” maneuver, knocking her unconscious and breaking her collarbone. <br><br /> <br> Kelsay then brought a&nbsp;Section 1983 suit against Ernst, and the district court denied qualified immunity, but a&nbsp;panel of the Eighth Circuit reversed, 2 – 1. The Eighth Circuit then agreed to rehear the case en banc, and affirmed the panel’s grant of qualified immunity, in an 8 – 4 decision. The majority, of course, relied on the idea that there were no prior cases involving the “particular circumstances” of this case; i.e., no prior cases specifically held that “a deputy was forbidden to use a&nbsp;takedown maneuver to arrest a&nbsp;suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.” No case exactly on point, qualified immunity, Q.E.D. The principal dissent by Chief Judge Lavenski Smith correctly noted that that the Supreme Court has never required “a case directly at point,” and that here, an ample body of case law would have “put a&nbsp;reasonable officer on notice that the use of force against a&nbsp;non‐​threatening misdemeanant who was not fleeing, resisting arrest, or ignoring other commands violates that individual’s right to be free from excessive force.” <br><br /> <br> To make matters worse, the majority refused even to decide whether Ernst’s conduct did, in fact, violate Kelsay’s Fourth Amendment rights. So any officer could engage in&nbsp;<em>exactly</em> the same misconduct tomorrow, and it still would not be “clearly established” that the conduct was unlawful. Judge Steven Grasz wrote a&nbsp;separate dissent taking issue with this particular aspect of the court’s decision. Though acknowledging that courts have discretion under&nbsp;<em><a href="https://supreme.justia.com/cases/federal/us/555/223/">Pearson v. Callahan</a></em>&nbsp;to grant immunity without deciding the merits, he argued that the exercise of such discretion was&nbsp;“inappropriate in this case as it perpetuates the very state of affairs used to defeat Ms. Kelsay’s attempt to assert her constitutional rights.” Judge Grasz clearly grasps the circular nature of qualified immunity, noting that the judiciary’s persistent refusal to decide constitutional questions under Section 1983 “imposes a&nbsp;judicially created exception to a&nbsp;federal statute that effectively prevents claimants from vindicating their constitutional rights.” <br><br /> <br><strong>III. The rising tide of opposition to qualified immunity</strong> <br><br /> <br> Two circuit courts recently decided to take qualified immunity cases en banc, even though neither case involved any&nbsp;<em>new</em> legal questions or suggested reversals of circuit precedent; that fact itself is a&nbsp;testament to how important this issue has become, and how much rising pressure there is to modify or abolish this doctrine. <em>Cole</em> and&nbsp;<em>Kelsay</em> hardly stand alone as examples of recent or ongoing high‐​profile qualified immunity cases. Just last month, the Eleventh Circuit issued a&nbsp;truly appalling decision in&nbsp;<a href="https://www.cato.org/blog/eleventh-circuit-grants-immunity-officer-who-shot-child-lying-ground-while-trying-shoot"><em>Corbitt v. Vickers</em></a>, granting immunity to a&nbsp;deputy sheriff who shot a&nbsp;ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a&nbsp;pet dog that wasn’t posing any threat. The Supreme Court unfortunately denied cert in&nbsp;<a href="https://www.cato.org/blog/cato-files-brief-challenging-qualified-immunity-for-warrantless-strip-search-of-4-year-old"><em>Doe v. Woodard</em></a> at the end of its last term, but there’s another outstanding cert petition explicitly calling for the Court to reconsider qualified immunity (<em><a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1287.html">Baxter v. Bracey</a></em>), which will be considered at the long conference on October 1st. And there will probably be additional cert petitions challenging one or more of the decisions in&nbsp;<em>Corbitt</em>,&nbsp;<em>Kelsay</em>, and&nbsp;<em>Cole.</em> <br><br /> <br> In other words, this issue isn’t going away. Day by day, more and more lower court judges add their voices to the growing chorus calling upon the Supreme Court to reconsider this noxious doctrine, and agitation by public policy groups across the ideological spectrum continues to grow. Some of the <a href="https://blogs.findlaw.com/blotter/2019/08/what-is-qualified-immunity-and-why-is-everyone-talking-about-it.html">Democratic presidential candidates</a> have even started to call for the abolition of qualified immunity. The day of reckoning may well be coming soon.</p> Thu, 22 Aug 2019 14:35:26 -0400 Jay Schweikert https://www.cato.org/blog/two-recent-en-banc-decisions-exemplify-injustice-impracticality-persistent-confusion-inherent John Doe, a/​k/​a Cheyenne Moody Davis v. United States https://www.cato.org/publications/legal-briefs/john-doe-aka-cheyenne-moody-davis-v-united-states Clark Neily, Jay Schweikert <div class="lead text-default"> <p>Under our Constitution, the twin pillars of criminal adjudication are the presumption of innocence and the jury trial. Independent citizen jurors putting the state to its burden are supposed to be&nbsp;<em>the</em>&nbsp;manner in which criminal justice is rendered in our country. Although this phrase “beyond a&nbsp;reasonable doubt” is not itself used in the Constitution, the practical requirement that criminal prosecutions must meet this heavy burden has ancient roots, and the Supreme Court has long held that it is constitutionally compelled in all criminal cases. Indeed, so fundamental is this right that, if a&nbsp;jury is improperly instructed on the burden of proof, a&nbsp;defendant is<em>automatically</em>&nbsp;entitled to a&nbsp;new trial, without any harmless‐​error analysis.&nbsp;</p> </div> , <div class="text-default"> <p>But how do we ensure that members of criminal juries properly understand and apply the “beyond a&nbsp;reasonable doubt” standard? That question arose in the trial of Cheyenne Moody Davis – and may well have decided his fate. In 2017, Mr. Davis was tried for identity theft and passport fraud. The prosecution alleged that the defendant was not actually Cheyenne Moody Davis, but rather had used the identity of another man with this name to obtain a&nbsp;U.S. passport back in 2006. At trial, the government’s main witness was this other Mr. Davis, who said that he lost his wallet (with identifying information) in St. Thomas in 1997 – which was the same year the defendant obtained a&nbsp;driver’s license in that name. But there were several weaknesses in the state’s case, most notably that it had no theory for who the defendant actually was, no explanation for how he supposedly obtained the lost wallet in 1997, and no explanation for why there were&nbsp;<em>two</em>&nbsp;different Social Security Cards validly issued to a “Cheyenne Moody Davis” in the 1970s. In light of this messy and confusing fact pattern, the defense’s main argument was simply that the state had failed to meet its burden of proof. </p> <p>Less than three hours into deliberations, the jury submitted a&nbsp;question to the district court, asking: “Can we have the proper legal definition of ‘beyond a&nbsp;reasonable doubt’?” The district court had not given any explanation for this standard in the original jury instructions, and this question self‐​evidently demonstrates that there was at least some confusion or division among the jurors as to its meaning. But shockingly, the district court refused to provide any clarification. Jury deliberations then continued for over two days – longer than the length of the trial itself – before the jury finally returned a&nbsp;guilty verdict.&nbsp;</p> <p>Mr. Davis appealed, but the Fourth Circuit held that – even in the face of an explicit request from the jury – the district court was not obligated to provide any explanation to the jury on the meaning of “beyond a&nbsp;reasonable doubt.” Mr. Davis therefore filed a&nbsp;cert petition, asking the Supreme Court to resolve a&nbsp;three‐​way split among the lower courts on this question – the Third, Eighth, and Tenth Circuits have held that a&nbsp;reasonable doubt instruction is required in&nbsp;<em>all</em>&nbsp;instances; the Fourth and Seventh Circuits have held that such an instruction is&nbsp;<em>never</em>&nbsp;required; and the Ninth and D.C. Circuits have held that such an instruction if required&nbsp;<em>if</em>&nbsp;the jury asks for clarification. </p> <p>Cato has filed an amicus brief in support of the cert petition, arguing that juries cannot effectively protect the presumption of innocence unless they are properly informed about the meaning of “reasonable doubt.” Though this standard is well‐​known to members of the legal profession, both common sense and empirical studies indicate that it is not well‐​understood or self‐​evident&nbsp;to the average juror. Even if there are some cases where further instructions&nbsp;<em>could</em>&nbsp;create more confusion than they resolve, that concern necessarily dissipates when the jury itself requests clarification. When a&nbsp;jury that is manifestly confused about the meaning of reasonable doubt renders a&nbsp;conviction, there simply cannot be any confidence that the jury applied the burden of proof mandated by the Constitution. </p> <p>Our brief also argues that it is especially important for the Court to take this case&nbsp;<em>now</em>, in light of its relation to the diminishing role of the jury trial generally. Though intended to be the cornerstone of criminal adjudication, the jury trial today has been all but replaced by plea bargaining as the presumptive manner in which criminal convictions are obtained – and there is ample reason to doubt whether the bulk of such pleas are truly voluntary. While coercive plea bargaining is a&nbsp;complex problem with no simple solution, defendants should at least have confidence that their jury will properly understand the presumption of innocence and the “beyond a&nbsp;reasonable doubt” standard. Otherwise, they will effectively lose the main tool they have to resist the overwhelming pressure that prosecutors can bring to bear when trying to extract a&nbsp;plea.</p> </div> Thu, 15 Aug 2019 16:25:00 -0400 Clark Neily, Jay Schweikert https://www.cato.org/publications/legal-briefs/john-doe-aka-cheyenne-moody-davis-v-united-states Eleventh Circuit Grants Immunity to Officer Who Shot Child Lying on the Ground https://www.cato.org/blog/eleventh-circuit-grants-immunity-officer-who-shot-child-lying-ground-while-trying-shoot Jay Schweikert <p>The Eleventh Circuit’s decision in <a href="http://media.ca11.uscourts.gov/opinions/pub/files/201715566.pdf"><em>Corbitt v. Vickers</em></a>, handed down last week, constitutes one of the most grotesque and indefensible applications of the qualified immunity I’ve ever seen. The case involves a claim of excessive force against Michael Vickers, a deputy sheriff in Coffee County, Georgia, who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. Without even deciding the constitutional question, a majority of the Eleventh Circuit panel granted qualified immunity to Vickers, simply because there was no case on point with this particular set of facts.&#13;<br /> &#13;<br /> The key facts as alleged in the complaint are as follows: Vickers and other officers were pursuing a criminal suspect, Christopher Barnett, when Barnett wandered into the backyard of Amy Corbitt (who had no relation to Barnett). At the time, one adult and six minor children were in the yard, and the officers demanded they all get on the ground. Everyone immediately complied, and the police took Barnett into custody.&#13;<br /> &#13;<br /> But then, the family’s pet dog Bruce walked into the scene. Without provocation or any immediate threat, Vickers fired his weapon at Bruce. His first shot missed, and Bruce retreated under the home. About ten seconds later, Bruce reappeared and approached his owners, and Vickers fired again – missing once more, but this time striking Corbitt’s ten-year-old child, who was at the time still lying on the ground <em>only 18 inches away</em>. The bullet tore through the back of the child’s knee, causing serious injuries. The child suffered severe pain and mental trauma and has to receive ongoing care from an orthopedic surgeon.&#13;<br /> &#13;<br /> Corbitt, individually and on behalf of her child, filed a lawsuit against Vickers under <a href="https://www.law.cornell.edu/uscode/text/42/1983">Section 1983</a>, the text of which guarantees that any state actor who violates someone’s constitutional rights “shall be liable to the party injured.” Vickers filed a motion to dismiss, but the district court held that he wasn’t entitled to qualified immunity, emphasizing that the facts as alleged in the complaint indicated that there was no conceivable safety threat or any need to discharge his weapon at the family’s dog.&#13;<br /> &#13;<br /> But in a split decision, the Eleventh Circuit panel reversed, holding that Vickers was entitled to qualified immunity as a matter of law. Judge R. Lanier Anderson, for the majority, said that there was no prior case law involving the “unique facts of this case,” in which a child was <em>accidentally</em> shot while the officer was <em>intending</em> to shoot someone (or something) else. Although the majority dutifully recited Supreme Court precedent purporting to say that overcoming qualified immunity does not require that “the very action in question has previously been held unlawful,” it is clear from the rest of the opinion that the majority was, indeed, requiring this level of specificity:&#13;<br /> &#13;</p> <blockquote><p>No case capable of clearly establishing the law for this case holds that a temporarily seized person—as was [the child] in this case—suffers a violation of his Fourth Amendment rights when an officer shoots at a dog—or any other object—and accidentally hits the person.</p> </blockquote> <p>Given the shockingly reckless nature of Vickers’ actions here, it is of course unsurprising that no prior case involving precisely this sort of misconduct. The majority’s analysis vindicates the stinging criticism of Fifth Circuit Judge Don Willett, who <a href="http://www.ca5.uscourts.gov/opinions/pub/17/17-50518-CV1.pdf">recently stated</a> in another case that “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the <em>first</em> to behave badly.”&#13;<br /> &#13;<br /> To add insult to injury, the majority here took the common but cowardly option of declining even to decide the constitutional question, ensuring that the law will not be “clearly established” going forward either. In other words, Vickers could commit the exact same sort of misconduct tomorrow and receive qualified immunity yet <em>again</em>. Despite the majority’s reluctant finger-wagging that Vickers “could have acted more carefully” (!), the practical bottom line is the federal judiciary green-lighting some of the most reckless police misconduct imaginable.&#13;<br /> &#13;<br /> The case did provoke a powerful dissent from Judge Charles Wilson, who appropriately began his opinion by noting that “[b]ecause no competent officer would fire his weapon in the direction of a nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers.” The dissent also took the majority to task for dismissing the “conclusory” allegation that the family pet was non-threatening. To the contrary, the complaint specifically alleged that the dog “posed no threat,” that “[no]one appear[ed] to be threatened by its presence,” and that it was merely “approaching his owners” at the time Officer Vickers fired. Of course, if the case had actually been permitted to go to a jury, Vickers would have had the opportunity to dispute these allegations. But by dismissing the case outright on the basis of qualified immunity, the majority short-circuited the exact mechanism — a public jury trial — that is supposed to ensure accountability for public officials.&#13;<br /> &#13;<br /> The result in <em>Corbitt</em> is especially atrocious, but far from unique. As <a href="https://www.nationalreview.com/2019/07/a-dreadful-police-shooting-highlights-the-need-to-change-a-terrible-law/">David French has already noted</a>, this case it is not simply an unfortunate outlier, but rather an illustrative example of why “it’s time to rethink qualified immunity entirely.” The doctrine has <a href="http://www.californialawreview.org/print/2-is-qualified-immunity-unlawful/">no legal basis</a> in either the text or history of Section 1983, <a href="https://www.supremecourt.gov/DocketPDF/18/18-1173/96026/20190410150455109_FINAL%20Crossideological%20Brief%20Woodard%204.10.2019.pdf">severely undermines official accountability</a>, and routinely results in morally indefensible decisions. I hope the Supreme Court is listening.</p> <p></p> Mon, 15 Jul 2019 10:48:00 -0400 Jay Schweikert https://www.cato.org/blog/eleventh-circuit-grants-immunity-officer-who-shot-child-lying-ground-while-trying-shoot Jessop v. City of Fresno https://www.cato.org/publications/legal-briefs/jessop-v-city-fresno Mon, 13 May 2019 15:53:00 -0400 Clark Neily, Jay Schweikert https://www.cato.org/publications/legal-briefs/jessop-v-city-fresno Cato Files Brief Challenging Qualified Immunity for Warrantless Strip Search of 4‑Year‐​Old https://www.cato.org/blog/cato-files-brief-challenging-qualified-immunity-for-warrantless-strip-search-of-4-year-old Jay Schweikert <p><a href="https://www.cato.org/events/qualified-immunity-supreme-courts-unlawful-assault-civil-rights-police-accountability">For over a&nbsp;year</a>, Cato has been leading the charge to challenge the doctrine of <a href="https://www.unlawfulshield.com/">qualified immunity</a>:&nbsp;an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s, which shields government agents from liability for misconduct — even when they break the law. Today marks a&nbsp;huge milestone in that ongoing campaign, as Cato has just filed an&nbsp;<a href="https://object.cato.org/sites/cato.org/files/pubs/pdf/i.b.-doe-v.-woodard-cato-amicus-brief.pdf"><em>amicus</em> brief</a> in support of a&nbsp;<a href="https://www.supremecourt.gov/DocketPDF/18/18-1173/91329/20190308162911974_18-_PetitionForAWritOfCertiorari.pdf">new cert petition</a> calling on the Court to reconsider this doctrine. So has a&nbsp;<a href="https://www.supremecourt.gov/DocketPDF/18/18-1173/96026/20190410150455109_FINAL%20Crossideological%20Brief%20Woodard%204.10.2019.pdf">diverse, cross‐​ideological alliance</a> of over a&nbsp;dozen prominent public interest groups, as well a&nbsp;group of leading qualified immunity scholars. In the words of Wyatt Earp: “<a href="https://www.youtube.com/watch?v=Ohw1uI1NsmU">You called down the thunder. Well, now you’ve <em>got</em> it!</a>” <br><br /> <br> The case at issue is <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1173.html"><em>I.B. and Doe v. Woodard</em></a>. When I.B. was a&nbsp;four‐​year‐​old girl, she was strip searched and photographed at her preschool by April Woodard, a&nbsp;state caseworker. Woodard had neither a&nbsp;warrant, nor the consent of the girl or her mother, nor were there any exigent circumstances requiring such an invasive search. All she had were unfounded abuse allegations (specifically, of a&nbsp;few marks and bruises on I.B.) which easily could have been checked and disproven through a&nbsp;non‐​invasive search. After I.B. complained to her mother about what happened, Woodard denied having performed a&nbsp;search at all, and continued to lie about that fact for several weeks, until finally admitting what she had done.&nbsp;I.B. suffered severe and ongoing emotional trauma as a&nbsp;result of being strip‐​searched and photographed against her will. <br><br /> <br> I.B. and her mother filed a&nbsp;<a href="https://www.law.cornell.edu/uscode/text/42/1983">Section 1983</a> against Woodard (and others), alleging violations of I.B.’s Fourth Amendment rights. But a&nbsp;<a href="https://www.ca10.uscourts.gov/opinions/18/18-1066.pdf">divided panel of the Tenth Circuit</a> held that the defendants were entitled to qualified immunity, because Woodard’s strip search did not violate “clearly established law.” The court failed to even address the Fourth Amendment claims on the merits, noting only that (1) there was a&nbsp;circuit split on whether a&nbsp;warrant was necessary under these circumstances, and (2) assuming a&nbsp;warrant <em>wasn’t</em> necessary, it was still not “clearly established” whether this sort of strip search was permissible. This latter holding is particular shocking, because the Supreme Court itself recently addressed this exact subject matter (warrantless strip searches of children in schools) in <a href="https://www.law.cornell.edu/supct/html/08-479.ZS.html"><em>Safford Unified School District No. 1&nbsp;v. Redding</em></a>. In <em>Safford</em>, the Court even said it was seeking “to make it clear” that an intrusive strip search of a&nbsp;child was justifiable only with “specific suspicions” that evidence of danger or wrongdoing will be found in the area searched. For this reason, Judge Briscoe dissented in part from the Tenth Circuit’s decision, and would have held that I.B.’s strip search violated “clearly established law,” as stated in <em>Safford.</em>&nbsp;<br><br /> <br> The Tenth Circuit’s decision exemplifies everything that is perverse and unjust about qualified immunity. I.B. had her constitutional rights violated in an egregious manner, yet she was left without a&nbsp;remedy because of a&nbsp;fictitious doctrine, with <a href="http://www.californialawreview.org/print/2-is-qualified-immunity-unlawful/">no grounding in the text or history of Section 1983</a>. The Tenth Circuit refused to even decide whether her constitutional rights were violated in the first place, and it applied the “clearly established law” test so strictly that a&nbsp;seemingly on‐​point Supreme Court case concerning nearly identical circumstances was still insufficient to overcome qualified immunity.&nbsp;<br><br /> <br> I.B. and her mother are now represented by <a href="http://www.bakerbotts.com/people/k/keller-scott-a">Scott Keller</a>, chair of Supreme Court practice at Baker Botts, and they’ve filed a&nbsp;powerful&nbsp;<a href="https://www.supremecourt.gov/DocketPDF/18/18-1173/91329/20190308162911974_18-_PetitionForAWritOfCertiorari.pdf">cert petition</a>, asking the Supreme Court both to resolve the Fourth Amendment questions at issue here, but also to reconsider the doctrine of qualified immunity itself. Today, Cato filed an <a href="https://object.cato.org/sites/cato.org/files/pubs/pdf/i.b.-doe-v.-woodard-cato-amicus-brief.pdf"><em>amicus</em> brief</a> in support of that petition, arguing that qualified immunity lacks any proper legal or historical basis, and that it is not entitled to respect under the doctrine of <em>stare decisis</em>. Specifically, we explain how (1) the “clearly established law” standard is so malleable and indefinite that it has failed to create the kind of stability and predictability that justify respect for precedent in the first place; (2) that the Supreme Court itself has already made major modifications to qualified immunity over the years, and therefore should have no qualms about reconsidering the doctrine now (but this time to bring it line with the statute Congress actually passed); and (3) that allowing the status quo to continue severely undermines public accountability and effectively subjects citizens to ongoing constitutional violations. <br><br /> <br> Ours is far from the only brief being filed today, however — we’ve also helped coordinate the drafting and filing of two additional <em>amicus</em> briefs. The first is on behalf of a&nbsp;group of leading qualified immunity scholars, who discuss the academic consensus that the Court’s qualified immunity doctrine is in serious need of correction. The second is on behalf of a&nbsp;<a href="https://www.supremecourt.gov/DocketPDF/18/18-1173/96026/20190410150455109_FINAL%20Crossideological%20Brief%20Woodard%204.10.2019.pdf">diverse array of groups from across the ideological and professional spectrum</a>, who nevertheless all share a&nbsp;common interest in ensuring that government officials are held accountable for their misconduct. This brief was joined by all of the following groups: the ACLU, Alliance Defending Freedom,&nbsp;American Association for Justice, Americans for Prosperity, Due Process Institute, Institute for Justice, Law Enforcement Action Partnership, MacArthur Justice Center, NAACP Legal Defense Fund, National Association of Criminal Defense Lawyers, Public Justice, R&nbsp;Street Institute, Reason, and the Second Amendment Foundation. Take a&nbsp;moment and consider just how egregiously misguided a&nbsp;Supreme Court doctrine has to be to unite <em>all</em> of these organizations in opposition, on a&nbsp;single brief. (Note also that <a href="https://www.supremecourt.gov/DocketPDF/18/18-1173/95876/20190409162133122_18-1173_Amicus%20Brief%20for%20Pacific%20Justice.pdf">several</a> <a href="https://www.supremecourt.gov/DocketPDF/18/18-1173/95972/20190410131659578_18-1173.amicus.Final.pdf">other</a> <a href="https://www.supremecourt.gov/DocketPDF/18/18-1173/96029/20190410151344196_Doe%20v%20Woodard%20Amicus%20Brief.pdf">groups</a> <a href="https://www.supremecourt.gov/DocketPDF/18/18-1173/96033/20190410152303814_18-1173%20tsac%20First%20Liberty%20Institute.pdf">have</a> filed&nbsp;<em>additional</em>&nbsp;<em>amicus</em> briefs asking the Court to take the case, although we weren’t specifically involved with those.) <br><br /> <br> All in all, this case represents one of the most promising opportunities in the ongoing fight against qualified immunity. It highlights the sort of gross injustice that the doctrine regularly permits, demonstrates just how much cross‐​ideological consensus there is on this issue, and presents the Court with an ideal vehicle for restoring Section 1983 to its proper stature. We can only hope the Court answers the call.&nbsp;</p> Wed, 10 Apr 2019 16:15:00 -0400 Jay Schweikert https://www.cato.org/blog/cato-files-brief-challenging-qualified-immunity-for-warrantless-strip-search-of-4-year-old I.B. and Doe v. April Woodard, et al. https://www.cato.org/publications/legal-briefs/ib-doe-v-april-woodard-et-al Clark Neily, Jay Schweikert <div class="lead text-default"> <p>When I.B. was a&nbsp;four‐​year‐​old girl, she was strip searched and photographed at her preschool by April Woodard, a&nbsp;state caseworker. Woodard had neither a&nbsp;warrant, nor the consent of the girl or her mother, nor were there any exigent circumstances requiring such an invasive search. All she had were unfounded abuse allegations (specifically, of a&nbsp;few marks and bruises on I.B.) which easily could have been checked and disproven through a&nbsp;non‐​invasive search. After I.B. complained to her mother about the search, Woodard denied having performed a&nbsp;search at all, and continued to lie about that fact for several weeks, until finally admitting what she had done.</p> </div> , <div class="text-default"> <p>I.B. and her mother filed suit against Woodard (and others), alleging violations of I.B.’s Fourth Amendment rights. But a&nbsp;divided panel of the Tenth Circuit held that the defendants were entitled to qualified immunity, because Woodard’s strip search did not violate “clearly established law.” The court failed to even resolve these questions on the merits, noting only that (1) there was a&nbsp;circuit split on whether a&nbsp;warrant was necessary in these circumstances, and (2) assuming a&nbsp;warrant&nbsp;<em>wasn’t</em>&nbsp;necessary, it was not “clearly established” whether this sort of strip search was permissible or not. This latter holding is particular shocking, because the Supreme Court itself recently addressed this exact subject matter — warrantless strip searches of children in schools — in&nbsp;<em>Safford Unified School District No. 1&nbsp;v. Redding</em>. In&nbsp;<em>Safford</em>, the Court even said it was seeking “to make it clear” that an intrusive strip search of a&nbsp;child was justifiable only with “specific suspicions” that evidence of danger or wrongdoing will be found in the area searched. For this reason, Judge Briscoe dissented in part, and would have held that I.B.’s strip search violated “clearly established law,” as given in<em>Safford.</em></p> <p>The Tenth Circuit’s decision exemplifies everything that is perverse and unjust about qualified immunity. I.B. had her constitutional rights violated in an egregious manner, yet she was left without any remedy because of a&nbsp;fictitious doctrine, with no grounding in the text or history of Section 1983. The Tenth Circuit refused to even decide whether her constitutional rights were violated in the first place, and it applied the “clearly established law” test so strictly that a&nbsp;seemingly on‐​point Supreme Court case concerning nearly identical circumstances was still insufficient to overcome qualified immunity.</p> <p>I.B. and her mother have therefore filed a&nbsp;cert petition, asking the Supreme Court to resolve the disputed Fourth Amendment questions at issue, but also to reconsider the doctrine of qualified immunity itself. Cato has filed an&nbsp;<em>amicus</em>&nbsp;brief in support of this petition, arguing that qualified immunity lacks any proper legal or historical basis, and that it is not entitled to respect under the doctrine of&nbsp;<em>stare decisis</em>. Ours is far from the only brief being filed today, however. We’ve also helped coordinate the drafting and filing of two additional&nbsp;<em>amicus</em>&nbsp;briefs: one on behalf of a&nbsp;group of leading qualified immunity scholars, and another on behalf of a&nbsp;diverse array of cross‐​ideological groups, all of whom share a&nbsp;common interest in ensuring that government officials are held accountable for their misconduct. These groups include, for example, the ACLU, the Alliance Defending Freedom, Americans for Prosperity, the Institute for Justice, the Law Enforcement Action Partnership, the NAACP, R&nbsp;Street, the Second Amendment Foundation, among many others.</p> <p>This case represents a&nbsp;major development in Cato’s ongoing campaign to challenge qualified immunity. It presents the Supreme Court with a&nbsp;perfect opportunity to reconsider this egregious doctrine, and it brings together enough prominent voices that the call will be hard to ignore.</p> </div> Wed, 10 Apr 2019 14:49:00 -0400 Clark Neily, Jay Schweikert https://www.cato.org/publications/legal-briefs/ib-doe-v-april-woodard-et-al Mitchell v. Wisconsin https://www.cato.org/publications/legal-briefs/mitchell-v-wisconsin D. Alicia Hickok, Doug R. McCusick, Ilya Shapiro, Clark Neily, Trevor Burrus, Jay Schweikert <div class="lead text-default"> <p>A reasonable expectation of privacy is one of the most fundamental rights people hold in a&nbsp;free society. Accordingly, the Fourth Amendment prohibits warrantless searches, with few exceptions. Police officers in Wisconsin violated that right when they drew Gerald Mitchell’s blood while he was unconscious — to test his blood alcohol content after a&nbsp;drunk‐​driving arrest. The state has attempted to excuse the officers by citing an implied‐​consent statute, which provides that simply driving on state roads constitutes consent to such searches.</p> </div> , <div class="text-default"> <p>The right to privacy is not absolute; police are allowed to search for evidence of a&nbsp;crime. But in doing so, they must follow procedures that comport with the Constitution. Before police conduct a&nbsp;search, the evidence should be judged by “a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” <em>Johnson v. United States</em> (1948). The Fourth Amendment contains a&nbsp;simple requirement for law enforcement that is an effective bulwark against unreasonable searches: get a&nbsp;warrant first.</p> <p>Unfortunately for Mitchell, the Wisconsin Supreme Court upheld this unconstitutional search under the “pervasively regulated business” exception, which allows for warrantless administrative inspections of certain highly regulated businesses. But this exception is quite narrow and designed to ensure regulatory compliance, not to facilitate evidence‐​gathering in cases of suspected of criminal activity. The U.S. Supreme Court has only recognized four types of business to which the exception applies: liquor sales, firearms dealing, running an automobile junkyard, and mining. None of these resemble the simple act of driving a&nbsp;vehicle. The state court thus erroneously conflated the licensing of a&nbsp;driver with a&nbsp;highly regulated business order to justify an otherwise unreasonable search.</p> <p>Gerald Mitchell is thus asking the U.S. Supreme Court to overturn the Wisconsin Supreme Court and find that this warrantless, non‐​consensual search violated his Fourth Amendment rights. Cato has joined the Rutherford Institute in filing an amicus brief in support of his petition. We argue for the basic notion that unconscious people can’t consent to anything, especially police searches, and that inspecting a&nbsp;coal mine for safety compliance — a&nbsp;justified exception to warrantless searches — is not the same as searching a&nbsp;driver’s blood in an attempt to convict him of DUI.</p> </div> Mon, 04 Mar 2019 18:16:00 -0500 D. Alicia Hickok, Doug R. McCusick, Ilya Shapiro, Clark Neily, Trevor Burrus, Jay Schweikert https://www.cato.org/publications/legal-briefs/mitchell-v-wisconsin Copeland v. Vance https://www.cato.org/publications/legal-briefs/copeland-v-vance Erik S. Jaffe, Ilya Shapiro, Clark Neily, Jay Schweikert, Trevor Burrus <div class="lead text-default"> <p>If a&nbsp;law is so vague that it makes it impossible to know whether what you’re doing is illegal or not, it cannot stand. Especially not when the vague law requires no criminal intent to render an action unlawful. The state of New York ignored this basic point of criminal law with its ban of “gravity knives” — pocket knives capable of being opened by the mere force of gravity or a&nbsp;slight flick of the wrist, as opposed to “switchblades,” which are spring loaded. The legislature both failed to define what a&nbsp;gravity knife is and eliminated any requirement that a&nbsp;person have criminal intent (<em>mens rea</em>)when it made simple possession of a&nbsp;pocket knife that could qualify as a “gravity knife” a&nbsp;crime.</p> </div> , <div class="text-default"> <p>The central problem here is that this law, which imposes strict liability on simple possession of a&nbsp;contraband knife, provides for discriminatory and unpredictable enforcement. The U.S. Court of Appeals for the Second Circuit acknowledged the law’s absence of a&nbsp;<em>mens rea</em>&nbsp;requirement but held that it makes no difference whether the defendant believed a&nbsp;knife was legal or not, whether he actually attempted a “wrist flick” to open the knife, or even if he received advice from a&nbsp;police officer that the knife was lawful. Ultimately, the court below suggested that challenges to such prosecutions could only be raised on an as‐​applied basis — meaning that when someone is prosecuted under this law for carrying a&nbsp;Swiss Army or other common folding knife, then he may be able to raise this defense. But forcing people who don’t and can’t know how to conform to a&nbsp;vague law to wait until they are prosecuted to challenge it is unreasonable.</p> <p>John Copeland, who was arrested for possessing a&nbsp;common folding knife, now seeks Supreme Court review, hoping to have New York’s law overturned. Cato has joined a&nbsp;group of criminal‐​law professors on an&nbsp;<em>amicus&nbsp;</em>brief in which we provide a&nbsp;primer on criminal liability where weapon possession charges should be accompanied by a&nbsp;showing that a&nbsp;defendant has both knowledge of possessing an illegal object and of the object’s unlawful characteristics. Our argument parallels a&nbsp;Supreme Court ruling in an analogous drug case,&nbsp;<em>McFadden v. United States</em>&nbsp;(2015), regarding the defendant’s knowledge of substances he possessed.</p> <p>When a&nbsp;law is vague in a&nbsp;substantial part of its application and provides people no means of knowing whether their conduct is legal, that law is unconstitutionally vague and must either be struck entirely or narrowed to eliminate the infirmity. It is fundamentally (and constitutionally) unfair to impose criminal liability on people who have no way of knowing their conduct is illegal and have no intent to commit a&nbsp;crime.</p> </div> Fri, 15 Feb 2019 09:43:00 -0500 Erik S. Jaffe, Ilya Shapiro, Clark Neily, Jay Schweikert, Trevor Burrus https://www.cato.org/publications/legal-briefs/copeland-v-vance What Is Qualified Immunity? https://www.cato.org/multimedia/cato-video/what-qualified-immunity Tue, 08 Jan 2019 11:55:00 -0500 Jay Schweikert https://www.cato.org/multimedia/cato-video/what-qualified-immunity Defending a Court’s Discretion To Allow Arguments for Conscientious Acquittal https://www.cato.org/blog/defending-courts-discretion-allow-arguments-conscientious-acquittal Jay Schweikert <p>Throughout the entire Anglo‐​American legal tradition, the independence of citizen juries has been understood to be an indispensable structural check on executive and legislative power. This independence has traditionally implied that jurors would both understand the consequences of a&nbsp;conviction, and that they would possess the power of conscientious acquittal, or “jury nullification” — that is, the inherent prerogative to decline to convict a&nbsp;defendant, even if factual guilt is shown beyond a&nbsp;reasonable doubt, when convicting would work a&nbsp;manifest injustice. Nevertheless, modern courts generally do not protect a&nbsp;defendant’s right to make such arguments directly to a&nbsp;jury, nor even to inform a&nbsp;jury about the consequences of conviction. A&nbsp;fascinating case now pending before the Second Circuit illustrates the tensions in modern case law on the subject, and raises the crucial question of whether district courts may, at the very least,&nbsp;<em>permit</em> such arguments in appropriate cases. <br><br /> <br> Yehudi Manzano, a&nbsp;31‐​year‐​old man, made the regrettable decision to get involved in a&nbsp;romantic relationship with a&nbsp;15‐​year‐​old girl. While their sexual relationship was impermissible under Connecticut age‐​of‐​consent laws, there was no indication that any instance of sex was coerced. On one occasion, Mr. Manzano took a&nbsp;video on his cell phone of the two of them having sex, which he then deleted. But the video was uploaded to the cloud, federal prosecutors ultimately became aware of the recording, and they charged Mr. Manzano with both production and distribution of child pornography, which respectively carry mandatory minimum sentences of fifteen and five years. <br><br /> <br> Mr. Manzano exercised extraordinarily poor judgment, and he is independently facing state charges for second‐​degree sexual assault. But the federal charges against him — a&nbsp;threatened&nbsp;<em>minimum</em>&nbsp;of 15&nbsp;years, all for taking and deleting a&nbsp;private video, in a&nbsp;non‐​coerced context, that no one but government investigators ever saw — are grossly disproportionate, and they exemplify the problems with mandatory minimum sentences in general. As such, Mr. Manzano’s attorney sought to introduce evidence of the mandatory minimum sentence and to argue for conscientious acquittal.&nbsp;The District Court judge did not conclusively resolve these motions, but it did indicate openness to letting Manzano’s counsel ask a&nbsp;government witness about the mandatory minimum, and said that&nbsp;<em>if</em>&nbsp;the evidence came in, he would allow argument on it. This is therefore the extraordinarily rare case where a&nbsp;district court showed even tentative willingness to permit arguments sounding in conscientious acquittal. <br><br /> <br> But even those conditional, preliminary rulings were too much for the prosecutor to accept. The government stayed the trial, and is now seeking the extraordinary remedy of a&nbsp;writ of mandamus from the Second Circuit, asking the appellate court to&nbsp;<em>prohibit</em>&nbsp;the District Court from permitting any evidence or argument about conscientious acquittal. In other words, according to the United States, keeping a&nbsp;jury in the dark about the actual consequences of conviction is&nbsp;<em>so&nbsp;</em>vital that it warrants stopping a&nbsp;trial and overriding the traditional discretion of district court judges to rule on evidentiary questions as they arise. <br><br /> <br> The Cato Institute, joined by FAMM and the NACDL, has therefore <a href="https://object.cato.org/sites/cato.org/files/pubs/pdf/united-states-v-manzano.pdf">filed an amicus brief</a>, urging the Second Circuit to deny the government’s petition. Not only is the District Court’s preliminary ruling well within its discretion, but the judge’s approach is also eminently reasonable, as it thoughtfully harmonizes many tensions in the modern case law of conscientious acquittal. Our brief argues that, throughout the Anglo‐​American legal tradition, pre‐​dating even Magna Carta, juries have always possessed the inherent authority to acquit defendants in the face of manifestly unjust prosecutions. This power was well‐​established in the Founding Era, in which juries were regularly aware of — and tailored their verdicts to — the consequences of conviction. And while modern cases (perhaps erroneously) do not generally afford defendants the&nbsp;<em>right</em>&nbsp;to argue for conscientious acquittal, no controlling cases preclude a&nbsp;district court from&nbsp;<em>permitting</em>&nbsp;such arguments. <br><br /> <br> Protecting the discretion of district court judges in this regard is all the more important today, in light of the vanishingly small role jury trials play in our criminal justice system. Today,<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2974069&amp;download=yes"> jury trials have been all but replaced by plea bargaining</a> as the baseline for criminal adjudication, and severe mandatory minimums, like the one at issue here, are a&nbsp;<a href="https://www.nacdl.org/trialpenaltyreport/">major driver of this trend</a>. Preserving the possibility that juries may, in appropriate cases, be informed about the consequences of conviction is a&nbsp;small but vital safeguard against the wholesale erosion of the jury trial itself.</p> Thu, 20 Dec 2018 10:47:43 -0500 Jay Schweikert https://www.cato.org/blog/defending-courts-discretion-allow-arguments-conscientious-acquittal United States v. Manzano https://www.cato.org/publications/legal-briefs/united-states-v-manzano Clark Neily, Jay Schweikert <div class="lead text-default"> <p>Yehudi Manzano, a&nbsp;31‐​year‐​old man, made the regrettable decision to get involved in a&nbsp;romantic relationship with a&nbsp;15‐​year‐​old girl. While their sexual relationship was impermissible under Connecticut age‐​of‐​consent laws, there was no indication that any instance of sex was coerced. On one occasion, Mr. Manzano took a&nbsp;video on his cell phone of the two of them having sex, which he then deleted. But the video was uploaded to the cloud, federal prosecutors ultimately became aware of the recording, and they charged Mr. Manzano with both production and distribution of child pornography, which respectively carry mandatory minimum sentences of fifteen and five years.</p> </div> , <div class="text-default"> <p>Mr. Manzano exercised extraordinarily poor judgment, and he is independently facing state charges for second‐​degree sexual assault. But the federal charges against him — a&nbsp;threatened&nbsp;<em>minimum</em>&nbsp;of 15&nbsp;years, all for taking and deleting a&nbsp;private video, in a&nbsp;non‐​coerced context, that no one but government investigators ever saw — are grossly disproportionate, and exemplify the problems with mandatory minimum sentences in general. As such, Mr. Manzano’s attorney sought to introduce evidence of the mandatory minimum sentence and to argue for conscientious acquittal (or “jury nullification”) — i.e., to argue that even if Manzano’s factual guilt was proven, it would be manifestly unjust for the jury to convict him, in light of the extreme mandatory minimum sentence.</p> <p>The District Court judge did not conclusively resolve these motions, but it did indicate openness to letting Manzano’s counsel try to introduce evidence of the mandatory minimum, and said that&nbsp;<em>if</em>&nbsp;the evidence came in, he would allow argument about it. In other words, this is the extraordinarily rare case where a&nbsp;district court showed even tentative openness to arguments sounding in conscientious acquittal. But even those conditional, preliminary rulings were too much for the prosecutor to accept; the government stayed the trial, and is now seeking the extraordinary remedy of a&nbsp;writ of mandamus from the Second Circuit, asking the appellate court to&nbsp;<em>prohibit</em>&nbsp;the District Court from permitting any evidence or argument about conscientious acquittal. In other words, according to the United States, keeping a&nbsp;jury in the dark about the actual consequences of conviction is&nbsp;<em>so</em>&nbsp;vital that it warrants stopping a&nbsp;trial and overriding the traditional discretion of district court judges to rule on evidentiary questions as they arise.</p> <p>The Cato Institute, joined by FAMM and the NACDL, has therefore filed an amicus brief, urging the Second Circuit to deny the government’s petition. Not only is the District Court’s preliminary ruling well within its discretion, but the judge’s approach is also eminently reasonable, as it thoughtfully harmonizes many tensions in the modern case law of conscientious acquittal. Our brief argues that, throughout the Anglo‐​American legal tradition, pre‐​dating even Magna Carta, juries have always possessed the inherent authority to acquit defendants in the face of manifestly unjust prosecutions. This power was well‐​established in the Founding Era, in which juries were regularly aware of — and tailored their verdicts to — the consequences of conviction. And while modern cases (perhaps erroneously) do not generally afford defendants the&nbsp;<em>right</em>&nbsp;to argue for conscientious acquittal, no controlling cases preclude a&nbsp;district court from&nbsp;<em>permitting</em>&nbsp;such arguments.</p> <p>Protecting the discretion of district court judges in this regard is all the more important today, in light of the vanishingly small role jury trials play in our criminal justice system. Today, jury trials have been all but replaced by plea bargaining as the baseline for criminal adjudication, and severe mandatory minimums, like the one at issue here, are a&nbsp;major driver of this trend. Preserving the possibility that juries may, in appropriate cases, be informed about the consequences of conviction is a&nbsp;small but vital safeguard against the wholesale erosion of the jury trial itself.</p> </div> Wed, 19 Dec 2018 09:22:00 -0500 Clark Neily, Jay Schweikert https://www.cato.org/publications/legal-briefs/united-states-v-manzano Cabrera‐​Rangel v. United States https://www.cato.org/publications/legal-briefs/cabrera-rangel-v-united-states Clark Neily, Jay Schweikert <div class="lead text-default"> <p>Miguel Cabrera‐​Rangel got into a&nbsp;scuffle with a&nbsp;border patrol agent near the Texas‐​Mexico border, and he was charged with two counts by a&nbsp;federal grand jury — a&nbsp;more serious charge for assault on a&nbsp;federal officer causing bodily injury, and a&nbsp;lesser‐​included charge of assault by physical contact. Cabrera‐​Rangel went to trial, where one of the main factual disputes was whether he had ever punched the agent, or hit him with a&nbsp;flashlight; the agent said he did, but the defendant denied it. Ultimately, the jury seemed to side with Cabrera‐​Rangel on this score, as they acquitted on the more serious charge, and convicted only on the lesser included offense.</p> </div> , <div class="text-default"> <p>But notwithstanding the jury’s decision, the judge sentenced Cabrera‐​Rangel based in large part on the very conduct on which the jury acquitted him — the alleged use of a “dangerous weapon” (the flashlight). Basically, the judge viewed the evidence differently than the jury had, finding the agent’s testimony “very credible,” and imposed an eight‐​year sentence (the statutory maximum for the offense for which he was actually convicted). Cabrera‐​Rangel argued before the Fifth Circuit that it violated his right to a&nbsp;jury trial to be sentenced on the basis of acquitted conduct, but the appellate court rejected his claim.</p> <p>The Cato Institute has therefore filed an amicus brief in support of Cabrera-Rangel’s cert petition before the Supreme Court. The basic underlying question — whether a&nbsp;judge may sentence based on acquitted conduct — is a&nbsp;pervasive, recurrent, and deeply troubling issue that the Supreme Court has ducked for years now. Just four years ago, Justice Scalia, joined by Justices Thomas and Ginsburg, wrote that this practice “has gone on long enough,” and urged the Court to consider the question. This is a&nbsp;perfect case for the Court to do just that.</p> <p>Our brief argues that sentencing defendants based on acquitted conduct essentially amounts to an end‐​run around the jury trial itself, and is fundamentally inconsistent with our long and storied history of jury independence. This practice is especially troubling today because it puts insurmountable pressure on defendants to take guilty pleas. Even if a&nbsp;defendant goes to trial and wins on the most serious charges, that hard‐​fought partial victory is effectively meaningless when the acquitted conduct still results in a&nbsp;drastically lengthened sentence. In light of the already troubling rates of modern plea bargaining, it is all the more important for the Supreme Court to put a&nbsp;stop to this practice and protect the sanctity of jury acquittals.</p> </div> Wed, 19 Dec 2018 08:37:00 -0500 Clark Neily, Jay Schweikert https://www.cato.org/publications/legal-briefs/cabrera-rangel-v-united-states The People of the State of Colorado, v. Eric Patrick Brandt, Colorado https://www.cato.org/publications/legal-briefs/people-state-colorado-v-eric-patrick-brandt-colorado Clark Neily, Jay Schweikert, Autumn Billings, Joseph G.S. Greenlee <div class="lead text-default"> <p>It is difficult to overstate the extent to which the government’s attempt to prosecute Eric Brandt and Mark Iannicelli strikes at the core of the First Amendment. The two men were arrested and convicted for engaging in classic political advocacy (peacefully distributing pamphlets) in the quintessential public forum (the sidewalk in front of a&nbsp;courthouse) on a&nbsp;matter of public concern more ancient than Magna Carta, and at the heart of Anglo‐​American law (the rights, duties, and independence of citizen jurors). One can well imagine why an English monarch would wish to suppress efforts to inform potential jurors of their power to resist tyranny by refusing to convict fellow citizens who had incurred the sovereign’s enmity; what is — or should be — more surprising is American prosecutors claiming such authority under the Constitution.</p> </div> , <div class="text-default"> <p>“Government regulation of speech is content based if a&nbsp;law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, 135&nbsp;S. Ct. 2218, 2227 (2015). That is exactly the case here. Had Brandt and Iannicelli been handing out brochures for their church or advertisements for a&nbsp;car, they could not have been guilty of violating the statute under which they were charged, C.R.S. § 18 – 8‑609(1); the violation necessarily turned on the content of the pamphlets they were distributing. The statute — whether or not it is limited to actual jurors chosen to serve on a&nbsp;particular case — is therefore a&nbsp;content‐​based speech regulation, and its application to defendants like Brandt and Iannicelli must receive strict scrutiny. Reed, 135&nbsp;S. Ct. at 2227. </p> <p>The state’s brief sidesteps these First Amendment concerns by arguing that § 18 – 8‑609(1) “does not regulate the content of speech so much as the time, place, and manner of that speech.” Br. at 22. This position is simply impossible to reconcile with the Supreme Court’s decision in Reed v. Town of Gilbert, given that the statute at issue prohibits attempts to “directly or indirectly … communicate with a&nbsp;juror” with respect to a&nbsp;specific subject matter (juror decision‐​making), and that the charges against Brandt and Iannicelli necessarily depended on the fact that the pamphlets they were distributing concerned this exact subject matter. </p> <p>To be sure, the government has a&nbsp;compelling interest in protecting the integrity of the jury decision‐​making process, and it may prohibit acts that constitute the traditional crime of jury tampering. But the state’s interpretation of § 18 – 8‑609(1) sweeps far beyond this legitimate purpose and implicates massive volumes of speech entitled to the highest degree of First Amendment protection. Overbreadth aside, the statute cannot constitutionally be applied to the speech of the defendants, as Colorado has no legitimate interest — compelling or otherwise — in preventing Brandt and Iannicelli from discussing the history of jury independence with any member of the public, whether or not they have been or may be called as a&nbsp;juror in any action.</p> </div> Mon, 03 Dec 2018 09:18:15 -0500 Clark Neily, Jay Schweikert, Autumn Billings, Joseph G.S. Greenlee https://www.cato.org/publications/legal-briefs/people-state-colorado-v-eric-patrick-brandt-colorado