Mediaboss Marketing

The Cato Institute has been engaged in astrategic campaign to abolish qualified immunity for over two years now. In all that time, the closest Ive seen to an actual defense of the doctrine is a2018 law review article by Professors Aaron Nielson and Chris Walker called AQualified Defense of Qualified Immunity. As the title would suggest, this is hardly arobust defense, but rather alimited, measured argument that the legal case against qualified immunity isnt quite as strong as its critics suggest. The article doesnt really defend qualified immunity as apolicy matter, but argues primarily that the Supreme Court should simply leave any reforms to Congress. And that, Ihave said on several occasions, is the furthest that anyone has been willing to go to defend the doctrine.

Until now.

In the wake of George Floyds death, with both the Supreme Court and Congress considering whether to reform or abolish qualified immunity, the International Association of Chiefs of Police (IACP) has put out ashort IACP Statement on Qualified Immunity. In away, Im quite grateful that theyve done so by setting out such ahollow and misleading defense of the doctrine, the IACP has actually done atremendous service to our campaign, by revealing such how indefensible qualified immunity actually is. Lets go linebyline and explain in detail exactly whats wrong with each argument put forward in this statement:

What is qualified immunity? Qualified immunity provides police officers with protection from civil lawsuits so long as their conduct does not violate clearly established law or constitutional rights of which areasonable officer would have known.

This is, technically, acorrect summary of how the Supreme Court has characterized qualified immunity doctrine. Of course, another way of stating this point is that, even if police officers violate someones constitutional rights, they cannot be held liable unless the victim can show that the police violated clearly established law. And as Ihave discussed many times, clearly established law is an exacting standard, which generally requires wouldbe civil rights plaintiffs to identify not just aclear legal rule, but aprior case with functionally identical facts. Thus, whether avictim can get redress for their injuries turns not on whether their rights were violated, nor even on how serious the violation was, but rather on the happenstance of the fact patterns in prior cases in their jurisdiction.

Further, qualified immunity does not prevent individuals from recovering damages from police officers who knowingly violate an individuals constitutional rights.

This is ahighly misleading statement. The IACP here is presumably paraphrasing the Supreme Courts statement that qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. But whether adefendant knowingly violated the law in this context doesnt actually turn on the defendants personal knowledge or intent; rather, it turns entirely on the defendants presumed knowledge of clearly established law. In other words, courts will not find that adefendant knew they were violating someones constitutional rights unless the victim can show aprior case where someone elses rights were violated in anearly identical manner.

To illustrate this point concretely, here are some examples of police officers who received qualified immunity, and thus were not found to have knowingly violated someones rights:

So yes, the IACP is correct that, according to the Supreme Court, qualified immunity doesnt protect officers who knowingly violate peoples constitutional rights. But thats only because knowingly in this context is defined in reference to the Kafkaesque clearly established law standard.

Qualified immunity is an essential part of policing and American jurisprudence.

This statement is juststupendously wrong. As Professor Will Baude has demonstrated at length and as Cato has argued in many of our amicus briefs on the subject qualified immunity is completely untethered from both the text of Section 1983 and the commonlaw history against which that statute was passed. With limited exceptions, the baseline assumption at both the founding and throughout the nineteenth century was that public officials were strictly liable for unconstitutional misconduct. The Supreme Court itself rejected the application of a good faith defense to Section 1983in a1915 case called Myers v. Anderson. It wasnt until the Court effectively reversed Myers in 1967 (without acknowledging that they were doing so) that we saw anything like qualified immunity. And the clearly established law standard which is the key feature of modern qualified immunity wasnt invented until 1982.

So, on the one hand, we have an atextual legal rule conceived through raw judicial policymaking by the Supreme Court 38years ago. And on the other, we have Chief Justice Marshalls statement in Marbury v. Madison that: The government of the United States has been emphatically termed agovernment 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 avested legal right. Only one of these two contradictory principles is essential to American jurisprudence.

[Qualified immunity] allows police officers to respond to incidents without pause, make splitsecond decisions, and rely on the current state of the law in making those decisions.

This statement is either areckless mistake or an outright lie. It is true, of course, that police officers do have to make splitsecond decisions under dangerous, uncertain, and evolving conditions, and in novel circumstances that may have never arisen before. But that is exactly why our legal standards for determining whether aconstitutional violation occurred in the first place are highly deferential to onthespot police decisionmaking. In Graham v. Connor, the Supreme Court has made clear that the Fourth Amendments unreasonableness standard must allow[] for the fact that police officers are often forced to make splitsecond judgmentsin circumstances that are tense, uncertain, and rapidly evolving and cannot be judged with the 20/20 vision of hindsight. Qualified immunity is entirely unnecessary to ensure that police can make quick, splitsecond decisions, because that protection is already baked into our Fourth Amendment jurisprudence. If we eliminated qualified immunity tomorrow, that protection would remain untouched.

[Qualified immunity] is essential because it ensures officers that good faith actions, based on their understanding of the law at the time of the action, will not later be found to be unconstitutional.

Wrong again. If an officer is truly acting in good faith i.e., arresting someone with probable cause, or using an amount of force they reasonably believe is necessary under the circumstances then they have not broken the law at all. Just because police arrest someone who turns out to be innocent, or conduct asearch that turns up nothing, or use force that with the benefit of hindsight was unnecessary to effect an arrest, doesnt mean the police have violated anyones constitutional rights. The touchstone of most Fourth Amendment questions is reasonableness, and good faith policing decisions, basically by definition, are inherently reasonable. So again, qualified immunity is entirely unnecessary to protect officers in this regard, because good faith actions generally do not violate peoples rights in the first place.

The loss of [qualified immunity] would have aprofoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.

Consider for amoment what it would actually mean if the IACP were correct about this point. According to the IACP, it is absolutely essential that police officers be held to alower standard of accountability then ordinary citizens and all other professions. According to the IACP, most police officers are either so cowardly or so vicious that they will just stop doing their jobs if they are actually held accountable for violating peoples constitutional rights. I, apparently, have far greater faith in members of law enforcement than the IACP does, because Im quite confident that theyre wrong on this account, and that the vast majority of police would continue protecting the public even in the absence of qualified immunity. And if there are some individuals deterred from the profession by the prospect of actual accountability, well, that is afeature, not abug, of our civil rights laws.

Calls to limit, reduce, or eliminate qualified immunity do not represent aconstructive path forward. In fact, these efforts would most certainly have afarreaching, deleterious effect on the policing professions ability to serve and protect communities.

The conclusion to the IACPs statement is not just wrong, but entirely backwards. As we have explained time and time again in many of the Catoled crossideological amicus briefs, qualified immunity harms not only the victims of police misconduct, but the law enforcement community itself,by depriving officers of the public trust and credibility they need to do their jobs safely and effectively. Policing is made far more difficult and far more dangerous when law enforcement lacks cooperation and respect from the communities they police. And there is perhaps no quicker and more effective way to undermine policecommunity relations than by holding police to alower standard than everyone else and regularly excusing egregious misconduct on the basis of lawless technicalities.

For this reason, more thoughtful members of law enforcement like the Law Enforcement Action Partnership have actually joined Catos briefs urging the Court to reconsider qualified immunityand have put out their own policy recommendations calling for an end to the doctrine. In the words of Police Major Neill Franklin (Ret.):Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. Theres no better way to restore community trust. And we cannot do our jobs without trust. Just so.

* * *

In conclusion, the IACPs defense of qualified immunity is, at best, misleading, counterproductive, and shortsighted, and at worst, full of outright misrepresentations. Nevertheless, Icant help but pity whatever poor soul was charged with the task of actually writing thisstatement its hard to defend the indefensible.

See original here:
Rebutting the IACP's Spurious Defense of Qualified Immunity - Cato Institute

In accordance with an Idaho Supreme Court decision handed down last year, a charge of felony DUI has been dismissed for a Hailey man due to a violation of his Fourth Amendment protection against unlawful searches and seizures.

Jeremy Sean Matthews, 32, was charged with felony DUI on Dec. 29 after a Sun Valley police officer approached his parked vehicle in the Sun Valley Figure Skating Club parking lot. According to a probable-cause affidavit, the officer was responding to a report of an intoxicated driver on Sun Valley Road around 12:30 a.m.

According to the affidavit, Matthews was detained and transported to the Sun Valley Police Department to give a breathalyzer test. Prior to that, the affidavit says, the officer informed Matthews that he was under arrest for misdemeanor DUI.

Matthews public defender, Justin McCarthy, filed a motion on April 7 to suppress evidence of the breathalyzer test.

The Idaho Supreme Court ruled last year in the case Clark v. Idaho that officers cannot make misdemeanor arrests without a warrant or without witnessing the offense. According to court documents, the Sun Valley officer was not informed of Matthews prior DUI convictions, which raised the alleged offense to a felony, until after the breathalyzer test was conducted.

Because the vehicle was parked and off at the time of the detainment and because the officer did not witness Matthews driving, the misdemeanor arrest was illegal, according to McCarthys argument in his motion to suppress.

Court records indicate that the Blaine County Prosecutors Office filed a motion to dismiss the case on May 20.

The rest is here:
Felony DUI charge dismissed due to illegal breath test - Idaho Mountain Express and Guide

by Elizabeth Turnbull

(Updated 6/12/20 at 2:59pm)

U.S. District Court Judge Richard Jones today issued a temporary restraining order (TRO) preventing the City of Seattle from using chemical agents and other less-lethal weapons against protests and demonstrations.

Tear gas may only be used against a targeted individual after all other available options are exhausted, and no chemical irritants (pepper spray or tear gas) or projectiles may be deployed indiscriminately into a crowd. In issuing the order, Judge Jones stated that Plaintiffs have made a clear showing of a likelihood of success on the merits on their First Amendment claim, and that both testimonial and video evidence establish that SPD likely violated Plaintiffs Fourth Amendment rights. The TRO will last for 14 days, while court proceedings in the lawsuit, Black Lives Matter Seattle-King County v. City of Seattle, continue.

We are pleased that the court is preventing Seattle from using chemical agents and less lethal weapons against demonstrators. The City must allow for freedom of speech and freedom of assembly, and it must address police accountability and excessive use of force, said Michele Storms, Executive Director of the ACLU of Washington, in a statement.

The American Civil Liberties Union (ACLU) of Washington State, filed the emergency lawsuit June 9 on behalf of Black Lives Matter Seattle-King County in response to the use of chemical agents and projectiles by the Seattle Police Department (SPD) and the City of Seattle to disperse protestors, according to a statement.

In partnership with the Perkins Coie law firm and the Korematsu Center of the Seattle University School of Law, ACLUs lawsuit, Black Lives Matter Seattle-King County et al. v. City of Seattle, is specifically in response to the tear gas, pepper spray and other less-lethal weapons used on protestors at multiple protests in Seattle held in response to the murder of George Floyd, according to the statement.

The lawsuit was filed against the Seattle Police Department and the City of Seattle to demand that they immediately stop the use of chemical agents and projectiles on protestors, according to the ACLU.

The use of chemical agents and projectiles for crowd control when not necessary to prevent injury is an excessive use of force that violates the Fourth Amendment to the Constitution, the statement detailing the lawsuit reads. [The lawsuit] also alleges that use of these tactics chills free speech in violation of the First Amendment.

The statement references how SPD used chemical irritants against protestors on June 6 and deployed tear gas or CS gas against protestors on Sunday night, June 7 at the intersection of 11th and Pine St. The statement points out how these actions contradicted Mayor Jenny Durkans announcement on June 5, stating that Seattle police would be banned from using tear gas on protesters for 30 days.

One woman is in stable condition but in a lot of pain, after she appears to have been directly hit by an apparent flash bang grenade thrown by the Seattle police at around 12 a.m., June 8, during a protest outside of the SPDs East Precinct near 11th and Pine.

On June 7, and over the course of the protests, Mayor Jenny Durkan and Police Chief Carmen Best have said that their intent has been to meet peace with peace. But both leaders have defended their tactics based on what they say have been the aggressions of individuals among peaceful protestors who were deemed to be trying to incite violence.

Several officers were injured at a protest at the intersection of 11th and Pine Saturday night, June 6, according to SPD, after the police department said protestors were throwing rocks and other projectiles, including improvised explosives.

The Seattle Police department released a tweet on June 6 detailing how some protestors had begun throwing rocks and improvised explosives at roughly 7:30 p.m. on Saturday night. Underneath the information about the projectiles and improvised explosives, is a photograph of what appears to be a candle in a glass jar.

These daily demonstrations are fueled by people from all over the city who demand that police stop using excessive force against Black people, and they demand that Seattle dismantle its racist systems of oppression, said Livio De La Cruz, board member of Black Lives Matter Seattle-King County, in the statement. It is unacceptable that the Seattle Police Department would then respond to these demonstrations with more excessive force, including using tear gas and flash bang grenades.

De La Cruz also said in the statement that rather than trying to silence protesters, the City of Seattle should address the protesters concerns by examining its policies and its systems regarding police practices, use of force and accountability.

The lawsuit was filed in U.S. District Court of Western Washington on behalf of Black Lives Matter Seattle-King County and individual plaintiffs, including various protesters who were subject to tear gas and other chemical agents, as well as to flash bang grenades. Among them is Nathalie Graham, a journalist with The Stranger.

Elizabeth Turnbull is a Seattle-based journalist

Featured image by Alex Garland

Like Loading...

Read more here:
ACLU Washington Files Emergency Lawsuit Against SPD and City of Seattle to Stop Use of Chemical Agents and Projectiles - southseattleemerald.com

It turns out that Derek Chauvin, the former Minneapolis police officer who was filmed killing George Floyd last week, has had 17 different complaints of serious misconduct during his career. That puts him among the 10-percent-worst offenders in the Minneapolis police department.

The complaints vary from being named in a brutality lawsuit, to using demeaning, unprofessional language in public, to aiming his weapon at children. But Chauvin never got into any serious trouble.

Civilians have filed 2,600 misconduct complaints against Minneapolis police officers over the past several years. Only 12 of them (0.46 percent) resulted in any discipline against the officer, with the most severe punishment being a one-week suspension.

Its not just Minneapolis. Around the country, the percentage of civilian complaints that result in disciplinary action is astonishingly low. And the rate at which offending officers are severely disciplined, fired, or charged with a crime, is effectively zero.

In May of 2019, the American Economic Association published a study titled Good Cop, Bad Cop: Using Civilian Allegations to Predict Police Misconduct. (RCReader.com/y/badapple1) The authors studied 50,000 civilian complaints against Chicago police to see if those complaints could be an indicator of who is/isnt a bad apple.

The results were obvious: Officers with the most complaints have the highest likelihood of being involved in a major civil rights issue. But theyre seldom removed. The Chicago police officer who shot an unarmed 17-year old boy in 2014, for example, was among the departments worst 3 percent in terms of civilian complaints, with half of the complaints alleging excessive force.

So it turns out you can spot a bad apple. You just cant remove them and give the boot to people like Chauvin who pose obvious risks. There are plenty of good, duty-minded cops who would love to kick out the bad ones. But the system fails everyone miserably.

One key reason is a legal doctrine known as qualified immunity.

This goes back to a 1967 Supreme Court case which ruled that government officials should be shielded from personal liability while carrying out their duties. This applies to police officers as well. In other words, you cant sue the cops if they assault you during arrest, or invasion of your home, because theyre technically performing their official duties.

The Supreme Court did make allowances, e.g. police and government agents would not be protected if their actions violate clearly established law or constitutional rights. But this is very difficult to prove.

Over the years, as civilian victims have attempted to sue police officers for misconduct, courts have routinely sided with the cops. The argument is that whatever laws the police officers violated were not clearly established, and hence the cops are protected by qualified immunity.

Heres one absurd example: In 2013, Fresno police officers raided a home that was suspected to be involved in a gambling operation. They seized $275,000, but only booked $50,000 as evidence. The other $225,000 mysteriously disappeared.

The suspects sued, and amazingly, the court ruled that there was no clearly established law holding that officers violate [the Constitution] when they steal property seized pursuant to a warrant ... and therefore the officers were protected by qualified immunity. Yes, you did read that correctly. And even the Supreme Court now recognizes that qualified immunity has gone too far.

In a 2018 case, Justice Sonia Sotomayor wrote that qualified immunity is an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment it tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. Justice Clarence Thomas also voiced growing concern with our qualified immunity jurisprudence in a 2017 concurring opinion on Ziglar v Abbasi. (RCReader.com/y/badapple2)

As long as qualified immunity lasts, it will continue to be abused.

In early June, Representative Justin Amash from Michigan co-sponsored a new bill, the Ending Qualified Immunity Act. (RCReader.com/y/badapple3) In the open letter to Congress, Amash and his co-sponsor Representative Ayanna Pressley asserted that the pattern of egregious police misconduct continues because police are legally, politically, and culturally insulated from consequences for violating the rights of the people whom they have sworn to serve. (RCReader.com/y/badapple4)

Unions Are Part of the Problem Another major reason why the system fails is because of the unions. Police unions exist (in theory) to protect their officers. Like any union, they negotiate wages, working conditions, etc. But as always, union interference goes way too far.

For example, police unions negotiate contracts with city governments that expressly prohibit officers careers from being blemished by civilian complaints.

Obviously, there are always going to be fake or overblown complaints against officers. But union rules require complaints to go through a highly bureaucratic investigation process thats closely monitored by the union.

So the unions protect their officers from scrutiny. And in the unlikely event that a complaint is sustained (0.46 percent in the city of Minneapolis), the unions protect their officers from any serious punishment.

In New York City, nearly 20 percent of the contract negotiated between the police union and the city government is devoted to disciplinary procedures and grievances.

Section 8 of Article XVI, for example, allows an officer to have his/her disciplinary record expunged under certain circumstances. And Article XXI provides several pages of lengthy protections for an officer who has been accused of misconduct.

This is why officers, even when theyre caught on film committing a crime, are often suspended with pay, never face trial, and only end up with a slap on the wrist (that can later be expunged). In Baltimore and Cleveland, union contract require the deletion of most disciplinary records.

Unions also ensure that officers who are disciplined have a multitude of options to have the ruling against them overturned. This hassle makes it incredibly difficult to weed out troublemakers.

In 2015 WNYC public radio published Is Police Misconduct a Secret in Your State? According to their study, only 12 states make police disciplinary records public, 15 make severe disciplinary records available, and 23 states keep all records confidential. Iowa keeps them confidential and Illinois provides limited access. (RCReader.com/y/badapple5)

And just in case the end result wasnt completely obvious, economist Rob Gillezeau of the University of Victoria is studying the relationship between police unionization and civilian killings. According to his current analysis, theres nearly a 3-percent increase in civilian shooting deaths in the counties where a local police department unionizes. (RCReader.com/y/badapple6)

This is pretty ironic when you think about it: Bolshevik politicians love unions. But police unions are an obvious example of how good intentioned unions can be destructive and literally destroy peoples' lives.

Simon Black is an entrepreneur, world traveler, and writer, and publishes the Web site SovereignMan.com.

Read more from the original source:
Qualified Immunity and Police Unions: Removing the Easily Spotted Bad Apple Is Very Difficult - River Cities Reader

It was a Monday in June 2019, and a sharply divided U.S. Supreme Court had just issued a 54 decision in a controversial case. Nothing unusual in thatexcept for the way the justices lined up to vote. At one end stood Neil Gorsuch, a conservative jurist appointed by President Donald Trump. At the opposite end stood Brett Kavanaugh, a fellow conservative and Trump appointee. What drove them so far apart?

At issue that day inUnited States v. Daviswas a federal statute that, in the Court's words, "threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. Butwhichother federal crimes?" The law under review called for enhanced sentencing in cases involving so-called crimes of violence, which are felonies "that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

And what exactly doesthatmean? The experts differed, and that was the source of the problem as far as Gorsuch was concerned. "Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence," he wrote for the majority, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. "In our constitutional order," Gorsuch maintained, "a vague law is no law at all," because it violates the core constitutional requirement that all federal statutes "give ordinary people fair warning about what" is demanded of them. This murky statute failed the test. "When Congress passes a vague law," Gorsuch concluded, "the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again."

Kavanaugh did not like the sound of that. "The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality," he lamented in dissent, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Yes, the Supreme Court should "ensure that Congress acts within constitutional limits and abides by the separation of powers," Kavanaugh conceded. "But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers." In Kavanaugh's telling, Gorsuch had just committed the unpardonable sin of judicial activism. The majority opinion took the Court "off the constitutional cliff."

Two days later, Gorsuch butted heads with another Republican appointee in another criminal justice case, this time trading verbal blows with Alito over the proper scope of the Sixth Amendment right to trial by jury. "Only a jury, acting on proof beyond a reasonable doubt, may take a person's liberty," Gorsuch wrote for the majority inUnited States v. Hammond, in which, once again, he was joined by the Court's four Democratic appointees. "Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt."

Not so fast, Alito shot back in dissent. Gorsuch's opinion "is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications." Not exactly the nicest thing that one conservative judge can say to another.

It might be surprising to hear, but these clashes are not isolated incidents. They are evidence of a growing trend: Today's criminal justice docket is bringing out all sorts of divisions among right-of-center jurists. If you want to understand some of the biggest constitutional battles of our timefrom the fight over the Fourth Amendment right to be free from unreasonable searches and seizures to the showdown over qualified immunity for copsyou need to pay heed to what's happening in the fractious world of Republican-appointed federal judges.

Criminal justice reformers were cautiously optimistic in January 2017 at the news that President Donald Trump had picked Neil Gorsuch to fill a vacancy on the U.S. Supreme Court. Of the 21 names on Trump's SCOTUS shortlist, Gorsuch, who was then a judge on the U.S. Court of Appeals for the 10th Circuit, had one of the more promising records in criminal cases. As investigative journalist (and formerReasonwriter) Radley Balko put it, Gorsuch's rulings on the Fourth Amendment were "encouraging, particularly for a nominee from a president with Trump's blustery law-and-order rhetoric."

Especially heartening was Gorsuch's 2016 dissent inUnited States v. Carloss. The case centered on whether police officers had the "implied consent" to enter private property for a warrantless "knock and talk" on a homeowner's front porch even though the homeowner had placed multiple "No Trespassing" signs around the property and even on the front door. The majority opinion, authored by Judge David Ebel, an appointee of President Ronald Reagan, sided squarely with the cops. "Under the circumstances presented here," Ebel wrote, "those 'No Trespassing' signs would not have conveyed to an objective officer that he could not approach the house and knock on the front door seeking to have a consensual conversation with the occupants."

Gorsuch practically reeled in disbelief. Under the majority's flawed theory of the Fourth Amendment, he marveled, "a homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Eventhatisn't enough to revoke the state's right to enter." As Gorsuch dryly observed, "this line of reasoning seems to me difficult to reconcile with the Constitution of the founders' design."

Gorsuch's embrace of the Founders' Fourth Amendment would soon make waves at the Supreme Court. Consider the January 2018 oral arguments inByrd v. United States. That case had arisen four years earlier when a woman named Natasha Reed rented a car and allowed her fianc, Terrence Byrd, to drive it in violation of her rental contract, which listed her as the sole authorized driver. When the state police stopped Byrd for a minor traffic infraction, the officer searched the trunk and discovered heroin and several flak jackets. Byrd wanted the courts to throw that evidence out as the fruits of an illegal search.

Here's how the question was presented to the Supreme Court: "The Fourth Amendment protects people from suspicionless searches of places and effects in which they have a reasonable expectation of privacy. Does a driver in sole possession of a rental vehicle reasonably expect privacy in the vehicle where he has the renter's permission to drive the vehicle but is not listed as an authorized driver on the rental agreement?"

During the oral arguments, Gorsuch told Byrd's lawyer, Robert Loeb, that there was a property rights theory "on which you might prevail." That theory, "essentially as I understand it," Gorsuch said, is "that possession is good title against everybody except for people with superior title."

"We think the property interest here, the right that Mr. Byrd would have had to bring a trespass action, demands a recognition of his right to invoke the Fourth Amendment," Loeb replied.

In other words, Byrd had "possession" of the car under common law principles. If, while he was driving it, somebody else tried to break in and steal it from him, Byrd would have a common law right "to bring a trespass action" against that would-be thief. In this case, the trespasser was the state police officer, who, absent probable cause, had no authority to search the trunk.

Alito promptly spoke up in objection. "The problem with going down this property route is that we go off in search of a type of case that almost never aroseif it ever did ariseat common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. When would that ever have happened in 18th century America? Never."

Loeb pushed back on Alito's characterization. "It's your right to bring a trespass action against a stranger," he told Alito. "The fact that you can exclude a stranger and bring a trespass action against him is what supports your property right under the Constitution."

A few minutes later, Alito tried to poke another hole in the property rights theory that Gorsuch had seemingly endorsed.

"The Constitution uses the wordpropertynumerous times," Alito told Loeb, "but the wordpropertydoesn't appear in the Fourth Amendment. It talks about effects, which are defined by Samuel Johnson's dictionary asgoods or movables. So is it your argument that any property interest whatsoever falls within the definition of effects if we are going to go back to an originalist interpretation of the Fourth Amendment?"

"I think if the common law recognizes your right," Loeb replied, "then both under the common law and common sense, that it makes sense to recognize a right to invoke a Fourth Amendment right."

Gorsuch remained quiet during those exchanges between Alito and Loeb. But he spoke up again during the second half of the oral arguments, when Assistant to the Attorney General Eric Feigin was presenting the government's side of the case by arguing that Byrd, "like other unauthorized drivers, simply has no connection to the car at all."

"Mr. Feigin, you keep saying that," Gorsuch responded, "but as a matter of property law, now and forever, a possessor would have a right to exclude other people but for those with better title. So someone in this position would have a right, I think you'd agree, to exclude someone who's attempting to get in the car to hijack it, carjack it. You'd also have a right to throw out a hitchhiker who had overstayed his welcome. I think you're having to argue that the government has a special license that doesn't exist for any other stranger to the car."

When Feigin tried to reject that description of the government's position, Gorsuch pressed: "Do you agree that Mr. Byrd could have excluded a carjacker?"

"I think by virtue of simply being in the car, he probably could have fended off a carjacker, and we wouldn't oppose his right to do so," Feigin answered.

"By virtue of his possession he would have a right to do so," Gorsuch corrected him. "And he would have a right to throw out a hitchhiker as well. So why not the government?"

In sum, Gorsuch was pushing a property rights theory of the Fourth Amendment that, if adopted by the Supreme Court, would cause law enforcement to lose this case and a great many others. (Byrd ultimately prevailed on more limited grounds.) Alito, recognizing the threat to his own narrower vision of what the amendment means, launched a counterattack.

It was a preview of things to come.

In June 2018, the Supreme Court decided one of its biggest Fourth Amendment cases in decades.Carpenter v. United Statesoriginated when the FBI, acting without a search warrant, obtained the cellphone records of a suspected armed robber named Timothy Carpenter. With those records, which were obtained from his service provider, law enforcement officials identified the cell towers that had handled his calls and proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was used against Carpenter at trial.

The central issue before the Supreme Court was whether Carpenter had a "reasonable expectation of privacy" in the information contained in those records, or whether he had forfeited such privacy protections by voluntarily sharing information about his whereabouts with his cellular service provider. As the Supreme Court put it inUnited States v. Miller(1976) andSmith v. Maryland(1979), "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

It was impossible to miss the broader implications that the case held for the civil liberties of all Americans. If the government can snoop around in your cellphone records without a warrant, what's left of the Fourth Amendment's protection against warrantless government searches?

The Court ultimately ruled 54 for the civil liberties side. "A person does not surrender all Fourth Amendment protection by venturing into the public sphere," declared Chief Justice Roberts' majority opinion. "We decline to grant the state unrestricted access to a wireless carrier's database of physical location information."

The fourCarpenterdissenters assembled in two separate camps. The first was comprised of Justices Thomas, Alito, and Anthony Kennedy. "The Court's stark departure from relevant Fourth Amendment precedents and principles," they objected, "places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation." In their view, the Court should have followed its precedents inMillerandSmithand held that "individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party." Cellphone records, they insisted, "are no different from the many other kinds of business records the Government has a lawful right to obtain by compulsory process."

Gorsuch occupied a camp that was uniquely his own. In fact, his solo dissent hardly seemed like a dissent at all. He clearly thought Carpenter deserved to win. He just disagreed with the majority about precisely how that win should have happened.

"I would look to a more traditional Fourth Amendment approach," Gorsuch wrote. "The Fourth Amendment protects 'the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.' True to those words and their original understanding, the traditional approach asked if a house, paper or effect wasyoursunder law. No more was needed to trigger the Fourth Amendment." Furthermore, he continued, "it seems to me entirely possible a person's cell-site data could qualify ashispapers or effects under existing law."

"I cannot fault" the majority "for its implicit but unmistakable conclusion that the rationale ofSmithandMilleris wrong; indeed, I agree with that," Gorsuch added. "At the same time, I do not agree with the Court's decision today to keepSmithandMilleron life support." Put differently, Gorsuch wanted to scrap those third-party precedents and have the Court adhere instead to an originalist, property rightsbased theory of the Fourth Amendment.

It was a far cry from the Kennedy-Thomas-Alito objection to placing "undue restrictions" on the powers of law enforcement. Indeed, if a majority of the Court had listened to Gorsuch, the cops would now be wearing even heavier Fourth Amendment shackles. Perhaps next time they will.

Similar fights over the powers of law enforcement are breaking out among Republican appointees on the lower courts. Take the question of whether it should be a crime to record the police in public. InAmerican Civil Liberties Union of Illinois v. Alvarez(2012), the U.S. Court of Appeals for the 7th Circuit confronted an Illinois eavesdropping statute that made it a felony offense, punishable by up to 15 years in prison, to record "all or any part of any conversation" without first receiving the consent of all parties to that conversation.

The ACLU of Illinois had a big problem with that. The organization had recently formed a Chicago-area "police accountability project" that, among other things, recorded police officers without their consent while those officers went about their official duties. To prevent both its operatives and the average camera-toting citizen from being prosecuted as felons, the state ACLU filed suit in federal court against Cook County State's Attorney Anita Alvarez, seeking an injunction that would bar her from enforcing the eavesdropping law against individuals whose only "crime" was recording the cops.

Alvarez fought the injunction tooth and nail. In the words of 7th Circuit Judge Diane Sykes, an appointee of President George W. Bush, Alvarez "has staked out an extreme position. She contends that openly recording what police officers say while performing their duties in traditional public forastreets, sidewalks, plazas, and parksis wholly unprotected by the First Amendment."

Sykes rejected that view and issued the injunction. "Any way you look at it," she said, "the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny."

Writing in dissent, Judge Richard Posner, a Reagan appointee, faulted Sykes for both misinterpreting the Constitution and obstructing police work. "The constitutional right that the majority creates," he reproached, "is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty." Several federal courts have since followed Sykes' lead, though the issue still remains unsettled in others.

And then there's the ongoing debate over qualified immunity, a legal doctrine that generally shields police officers from being sued when they violate citizens' constitutional rights while on the job. According to the Supreme Court's controversial decision inHarlow v. Fitzgerald(1982), government officials are entitled to immunity from civil suits so long as the conduct that they're being sued over "does not violate clearly established statutory or constitutional rights."

What that means in practice, quipped Judge Don Willett, a Trump appointee who sits on the U.S. Court of Appeals for the 5th Circuit, is that "public officials [may] duck consequences for bad behaviorno matter how palpably unreasonableas long as they were thefirstto behave badly." As Willett put it, "qualified immunity smacks of unqualified impunity."

To say the least, that is not a unanimous opinion on the 5th Circuit. In fact, Willett's stance has placed him in direct conflict with two of his fellow Trump appointees on that very court. Their simmering dispute finally exploded into the open inCole v. Hunter(2019), a case that centered on a family's lawsuit over the police shooting of their mentally disturbed 17-year-old son.

In a dissent, Willett conceded that the officers were entitled to qualified immunity under controlling Supreme Court precedent. He then took aim at the precedent itself, faulting SCOTUS for formalizing "a rights-remedies gap through which untold constitutional violations slip unchecked." According to Willett, "the real-world functioning of modern immunity practiceessentially 'heads government wins, tails plaintiffs lose'leaves many victims violated but not vindicated." He left little doubt that if he were a member of the Supreme Court, he would get busy setting things straight.

Judges James Ho and Andrew Oldham wrote separately for the purpose of lambasting their fellow Trump appointee. "Some have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders' Constitution," Ho and Oldham wrote in a joint dissent, citing Willett and other critics of the doctrine. "As originalists, we welcome the discussion," they continued. But "a principled commitment to originalism provides no basis for subjecting these officers to trial."

According to Ho and Oldham, Willett's "one-sided approach" is entirely too hostile toward cops. "Originalism for plaintiffs, but not for police officers," they lectured Willett, "is not principled judging."

Willett replied in a footnote. "As for the sidelong critique of me in the dissenting opinion of Judges Ho and Oldham," he wrote, "it is, respectfully, a pyromaniac in a field of straw men." As Willett pointed out, to call for the Supreme Court to revisit this particular doctrine is hardly an anti-originalist heresy. "Justice Thomasno 'halfway originalist'has done the same," Willett retorted. He also doubled down on his critique: "My concerns, repeated today, are doctrinal, procedural, and pragmatic in nature." Qualified immunity, Willett stressed, "should be rethought."

The fighting over qualified immunity is only going to get fiercer in the federal courts in the coming years. And that's just looking at the Trump appointees.

Pundits often speak of the judiciary in terms of liberal or conservative judges issuing liberal or conservative opinions. The reality is far more complicatedand interesting. As the growing divide among "conservative" judges in criminal justice cases makes clear, such labels frequently obscure more than they reveal.

Continued here:
Criminal Justice Divides the 'Conservative' Judiciary Reason.com - Reason