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Seth W. Stoughton, University of South Carolina

(THE CONVERSATION) The killing of an unarmed black jogger by white residents who assumed he was up to no good is shocking, but it should come as no surprise.

If anything, Ahmaud Arberys death in Georgia on Feb. 23 was predictable: the latest tragic example of the fatal consequences that can occur when private citizens seek to take the law into their own hands.

As a law professor and former police officer, what concerns me is not just that the men who killed Arbery may have thought that their attempted apprehension was legally sanctioned, but that they they would have had good reason to believe that. Most states still retain outdated laws that protect would-be vigilantes.

Vigilant snorers

So-called citizens arrest laws, which allow private individuals to apprehend an alleged wrongdoer, have been around for centuries. Such laws protect people from civil or criminal liability in the event they arrest someone.

In theory, that makes sense. Public safety is everyones responsibility, after all. In practice, however, citizens arrest doctrines have set the stage for tragic, unnecessary and avoidable confrontations and deaths.

Modern citizens arrest rules can be traced back to 1285, when Englands Statute of Winchester directed that citizens not spare any nor conceal any felonies and commanded that citizens bring fresh suit prosecute whenever they see robberies and felonies committed.

Back then, there was no law enforcement as we understand it today no cops, no prosecutors. It was largely left to private citizens to apprehend and prosecute felons.

Prior to the development of professionalized police agencies in the mid- to late-1800s, there was no particular legal distinction between arrests made by private citizens and those made by public officials.

In English cities and larger towns, able-bodied men were expected to take generally unpaid shifts patrolling as night watchmen. Watchmen were often conscripted, and citizens of means could hire someone to serve on their behalf, resulting in a dubious dedication to duty.

This practice extended beyond England to its colonies. An account published in the New York Gazette in the mid-18th century described night watchmen as a parcel of idle, drinking, vigilant Snorers, who never quelled any nocturnal Tumult in their Lives.

In the mid-1600s, the slave codes of the colonial American South declared that controlling the enslaved population was a matter of public responsibility the public here being exclusively white men. Paid and volunteer militiamen were tasked with, as the author Kristian Williams has noted, making regular patrols to catch runaways, prevent slave gatherings, search slave quarters and generally intimidate the black population.

These militiamen did little or nothing to address crime by whites, especially crimes against enslaved or free blacks.

Shopkeepers and security

Today more than 18,000 local, state and federal agencies provide police services in the U.S. But citizens arrest lives on in the form of a patchwork of statutes and common law doctrines.

Most states have shopkeepers privilege laws that provide a defense for business owners and employees who arrest someone for theft so long as they have probable cause. Resisting such an arrest is a crime in some states. Private security guards, similarly, may be authorized to make arrests, at least on the property they are hired to protect. And when bounty hunters capture someone who has jumped bail, the Supreme Court has said the arrest is likened to the rearrest by the sheriff of an escaping prisoner.

Those who are not a shopkeeper, security guard or bounty hunter may still be able to effect an arrest under more generic citizens arrest rules.

In many states, for example, an officer can make arrests for offenses classified as misdemeanors minor crimes typically punishable by up to a year in jail but a private citizen cannot. In other states, including Georgia, a private citizen may make an arrest only if they witness or have firsthand knowledge of an offense. And in some states, an individual may only be able to invoke citizens arrest as a defense to civil or criminal liability if the person they arrested actually committed an offense, while officers are protected if they had probable cause.

But in some ways, private actors have even more leeway to make arrests and use force than law officers because the constitutional rules that regulate searches, seizures, and interrogations do not apply when a private party commits the offending act.

Citizens may have more authority to use force than law officers, too, depending on state law.

In South Carolina, a citizen can use deadly force to effect the nighttime arrest of someone who has US$1 of stolen property in their possession or who flees when he is hailed if the circumstances raise just suspicion of his design to steal.

If an officer in South Carolina did the same, he would likely run afoul of state law or the Fourth Amendment, which the Supreme Court has held requires probable cause that the suspect poses a significant threat of death or serious physical injury.

Race and status

No one knows how many citizens arrests occur in the U.S. every year because the police are usually called and an officer processes the arrest, leaving little evidence of private involvement.

We do know, however, that private arrest authority is too often badly misused by those who believe their higher social status gives them authority over someone they perceive as having lower status. Frequently, this falls along racial lines, as seen in the detention of immigrants by militias at the U.S. border, the attitude of nightwatchmen in gated communities, and in situations like the Ahmaud Arbery case.

Gregory and Travis McMichael say they chased Arbery because they believed he was behind neighborhood burglaries. Arbery, of course, had committed no crime. He was just jogging.

And even if he had committed a burglary, the death would have still been the result of an unjustified act of vigilantism. As the Supreme Court has said, It is not better that all felony suspects die than that they escape. Remembering that as the U.S. considers reforming citizens arrest statutes may go a long way in preventing any further unnecessary deaths.

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This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/ahmaud-arberys-killing-puts-a-spotlight-on-the-blurred-blue-line-of-citizens-arrest-laws-139275.

Excerpt from:
Ahmaud Arbery's killing puts a spotlight on the blurred blue line of citizen's arrest laws - Huron Daily Tribune

FORT WAYNE, Ind. (WANE) A lawsuit filed against the Allen County sheriff for pushing a 15-year-old boy will now be heard in federal court.

Allen County Sheriff David Gladieux was charged with misdemeanor battery after an investigation into an altercation involving Gladieux and a teenage boy that took place at the Three Rivers Festival.

The parents of the 15-year-old filed a tort claim notice in August, asking for $300,000 in damages for medical costs, emotional distress, and other damages, according to court documents.

The lawsuit had been pending in Allen Superior Court, but Gladieuxs attorneys filed a notice of removal to U.S. District Court last week. The lawsuit claims that the sheriff violated the teens 4th rights under the Fourth Amendment, which protects citizens from unlawful searches and seizures.

As of this story being published, no hearings or court dates have been set.

Back in September, Gladieux reached a pretrial agreement and was enrolled in the Allen County Prosecutors Office Pretrial Diversion Program. With the agreement, Gladieux was required to pay a $334 fee, complete alcohol and anger management programs, and make a public apology.

According to documents obtained by WANE 15, Gladieux completed 12 hours of a risk management program for alcohol use as recommended. He also completed all requirements of the National Association for Alcoholism and Drug Abuse Counselors, as well as 10 hours of Conflict Resolution for Recovery and Relapse Prevention.

With the completion of the programs, the battery charge will be dismissed. According to Gladieuxs attorney, as long as the sheriff does not get arrested between now and Oct. 18, the charges will be dismissed.

Originally posted here:
Lawsuit filed against Allen County sheriff for injuring teen moved to federal court - WANE

Confirmed Judges, Confirmed Fears is a blog series documenting the harmful impact of President Trumps judges on Americans rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge Eric Murphy cast the deciding vote to allow the use of evidence taken from a man who was asleep when police began to search him without his consent. The April 2020 case is United States v. Wilson.

Very early one morning in Lansing, Michigan, police officers received a call about a man apparently asleep or passed out and sitting alone in a car in what police had labeled a high-crime area. The officers claimed that when they could not rouse him using a flashlight, they became concerned he could be having a medical problem; they then opened the door and shook his right arm until he responded. They said that when they moved his arm, he suspiciously moved it near his waistband, prompting concern over whether he had a weapon. They asked him to stand with his hands raised. He did so and identified himself as Duke Lantrel Wilson and said he had been visiting a friend in the area. An officer saw an open bottle of what appeared to be alcohol in the car, saw Wilson stumble and sway back and forth, and thought he was intoxicated.

When Wilson got out of the car, an officer asked if he could pat him down in order to make sure our safety is fine. The officer claimed that Wilson nodded yes, and then put his hands behind his back as requested. The pat down revealed a pistol, and Wilson was handcuffed and arrested. The officers learned that he had previously been convicted of a felony and was on supervised release. He was charged in federal court with improper possession of a weapon as well as possession of illegal drugs, which they later found in his pocket.

Wilson moved to suppress the evidence against him, contending that he did not consent to the search and that the officers did not have reasonable suspicion to pat him down. The trial judge rejected Wilsons motion, claiming that the totality of the circumstances indicated that he had consented and that in any event, the officers had reasonable suspicion enough to justify their pat down. In a 2-1 decision with Murphy providing the deciding vote, the Sixth Circuit affirmed.

Judge Karen Nelson Moore vigorously dissented, relying in large measure on revealing body camera footage of the polices conduct that the majority did not dispute. As Moore explained, the footage directly contradicts the officers version of the facts concerning consent. The footage unmistakably reveals, Moore went on, that Wilsons nod occurred before the request to pat him down, and that he did not voluntarily put his hands behind his back, but instead that one of the officers grabs Wilsons left wrist and moves it behind his back, before Wilson has an opportunity to act. The claim that Wilson voluntarily consented, Moore concluded, was utterly discredited by the record, and the court should not rely on such visible fiction.

Moore explained that the video footage also contradicted the assertion that the police officers had reasonable suspicion to think Wilson had a weapon after they first roused him. The footage plainly reveals, she noted, and one of the officers admitted on the stand, that when he shook Wilsons arm, Wilson simply returned the arm to its initial, resting position on his lap, and did not suspiciously relocate to his waistband. The facts revealed that the officers did not have reasonable suspicion to search Wilson, Moore concluded, and at the very least, the case should have been sent back to the lower court.

Finally, Moore explained what was wrong with the backup argument of the district court and the majority that Wilsons firearm would have inevitably been discovered even if the arguably unlawful search had not occurred. The case law makes clear, Moore went on, that in order to invoke the inevitable discovery doctrine, it must be proven that an arrest and later search of Wilson would have happened if the initial search did not. The facts made clear, Moore elaborated, that there was uncertainty as to whether the police would have arrested Wilson in the absence of the initial search, since the police were not investigating a crime, but instead claimed to be concerned about his welfare. The bodycam footage showed that the officers repeatedly assured him that he was not in trouble or under arrest or anything like that. At the very least, she concluded, the Fourth Amendment demands a more robust inquiry than simply accepting one officers later testimony that he would have arrested Wilson anyway.

As a result of Murphys deciding vote, however, the polices apparent violation of Wilsons Fourth Amendment rights was upheld, creating a decision that perpetuates a lack of accountability for law enforcement unwarranted search and seizures practices. Such practices disproportionately harm people of color, and could harm others in the Sixth Circuit.

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Trump Judge's Vote Excuses Police Violation of Fourth Amendment in Unlawful Search and Seizure Case: Confirmed Judges, Confirmed Fears - People For...

Credit: Reuters

In the United States, police violence frequently dominates the news cycle. People who believe that police officers have subjected them to excessive force can bring civil suits for violation of their Fourth Amendment rights. But these lawsuits often run up against the legal doctrine of qualified immunity, which excuses officers from liability for official actions that do not violate clearly established law.

On May 8, Reuters published a special report, For cops who kill, special Supreme Court protection, that explains how the Supreme Courts application of the qualified immunity doctrine has decreased the number of cases in which police officers have been held accountable for using excessive force. Lawrence Hurley, Andrew Chung and Andrea Januta, members of the Reuters reporting team, kindly agreed to answer a few questions about this report. Welcome, Lawrence, Andrew and Andrea, and thank you for doing this.

***

Question: When did your investigation into qualified immunity begin? Is there anything behind the timing of the release?

Reuters team: When the Supreme Court declined to hear an excessive force case in April 2017, a line in Justice Sonia Sotomayors dissent from denial caught our eye. In that case, Salazar-Limon v. Houston, she accused the court of handling appeals brought by plaintiffs less favorably than appeals brought by defendants. Justice Samuel Alito wrote his own opinion questioning Sotomayors conclusion, saying she had not shown any data to back it up. We thought it would be interesting if we could get a sense of who was right. With several qualified immunity appeals now pending at the Supreme Court, we worked to get the story out this term so that people better understand what is at stake.

Question: Your report spans multiple pieces and uses various mediums to showcase your data. Could you briefly summarize the key findings of your investigation?

Reuters team: Well, first were not done yet! The story is just the first in a series. In terms of the data findings, there are three key takeaways:

Appeals courts are granting qualified immunity to police much more than they used to. We analyzed hundreds of appeals court rulings in Westlaws database from 2005 to 2019 and found a noticeable spike in grants in the last few years, in light of frequent Supreme Court interventions that favor defendants. In the first three years we looked at, appeals courts granted qualified immunity in 44 percent of cases, but by the last three years we looked at, that number had jumped to 57 percent.

We also discovered that the courts have changed how they are navigating the two-part qualified immunity test. We found that since 2009, when the Supreme Court ruled that judges do not have to answer the question of whether there was a constitutional violation but can instead focus solely on the clearly established prong, courts are indeed increasingly following that route, which is contributing to the overall increase in the rate at which qualified immunity is granted.

Finally, we answered the question that set us out on this journey: Did the Supreme Court grant more cert petitions brought by defendants? Our work built on what Professor William Baude has written about the courts special solicitude for defendants in qualified immunity cases. We identified 121 cases in which cert was sought in an excessive force case involving claims against police in which qualified immunity was the key issue. Defendants and police file at roughly the same rate but the court is 3.5 times more likely to grant cert in a case filed by defendants. So yes, Sotomayor was right.

Question: As you note, your research showed that of the 121 Supreme Court petitions involving qualified immunity defenses from 2005 to 2018 (excluding pro se litigants), cases appealed by officers were 3.5 times more likely to be granted than were cases appealed by civilians. Did you look at any other factors in the content of the petitions that could explain this disparity?

Reuters team: We did look at other factors, as it was crucial that our analysis accounted for differences in the petitions. We performed a great deal of statistical analysis to study the effects of various circumstances of a case such as whether plaintiffs were armed or resisted arrest, or which circuit decided the case and when, as examples. Our findings hold up when we control for these factors. We did similar analysis for our appellate court findings, as well. Also, we spent quite a bit of time ensuring that the question presented directly addressed qualified immunity and officer excessive force. We did not include cases that were not directly on point.

Question: Your team analyzed 529 federal circuit court opinions published from 2005 to 2019 in cases in which police officers accused of excessive force raised a qualified immunity defense. Why did you limit your data to published opinions? Do you have a sense of the general trends in the unpublished opinions?

Reuters team: To gather the data we needed to report this project, we used Westlaw extensively, both in terms of the databases content and its search tools. We limited our data to published opinions for several reasons. First, published opinions set precedent for the circuits and thus carry more weight in shaping the law. Second, many unpublished decisions, in contrast to published ones, have little if any of the legal analysis we needed to properly perform our own analysis, which required a close reading of each opinion. On the other hand, we came across many unpublished opinions in the reporting of the story, including those with dramatic fact patterns or other details that made them indistinguishable from the many published cases we analyzed. We would be surprised if the qualified immunity trends among unpublished opinions did not track those of their published counterparts.

Question: To grant an officer qualified immunity from an excessive force lawsuit, judges apply a two-part test laid out in Saucier v. Katz, in 2001: 1) whether an officer used excessive force in violation of the Fourth Amendment and 2) whether the officer should have known that their actions constituted excessive force based on clearly established court precedent. In 2009, in Pearson v. Callahan, the Supreme Court ruled that lower courts can make a finding on part two of the test without addressing part one. In your report, you address the consequences of this decision:

In the decade since then, the Reuters analysis found, appeals courts have increasingly ignored the question of excessive force. In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence. In effect, the same conduct can repeatedly go unpunished.

Do you think that the unanimous court in Pearson realized that they were creating this closed loop?

Reuters team: Its not clear what the Pearson court thought the real-world implications would be. But the justices certainly believed that freeing lower courts from the rigid order of battle imposed by Saucierjust eight years earlier was necessary. As Alitos reasoning in Pearson makes clear, criticism of Saucier had come from within the court and without. They believed it was costing precious judicial resources, among other problems. And though they explicitly recognized that jettisoning the Saucier framework risked constitutional stagnation, they were willing to take that route. Pearson similarly cannot be viewed in isolation from the courts repeated reminders that qualified immunity is immunity from suit, not just a defense to liability, and its more recent, active policing of the doctrine, perhaps best explained by Alitos footnote in the San Francisco v. Sheehan case from 2015, which emphasized qualified immunitys importance to society as a whole.

Question: Sotomayor has called for the court to reconsider its qualified immunity doctrine. In a 2018 dissent in Kisela v. Hughes, Sotomayor said that the court has created an absolute shield for police officers accused of excessive force. Do the numbers in your report back up her statement?

Reuters team: The overall uptick in appeals courts granting immunity in the last couple of years appears to show that recent Supreme Court rulings in favor of defendants have had an impact. Although, while its certainly harder for plaintiffs to overcome immunity than it used to be, many still do.

Question: In 2017, Justice Clarence Thomas wrote in his concurrence in Ziglar v. Abbasi that in the decisions following Pierson [v. Ray], we have completely reformulated qualified immunity along principles not at all embodied in the common law. Thomas has suggested that the court should find an appropriate case to reconsider the doctrine. Do Thomas and Sotomayor have the same vision for the future of qualified immunity?

Reuters team: The fascinating thing about criticism heaped upon qualified immunity by Thomas and Sotomayor, in many ways ideological opposites, is that it reflects the breadth of a growing number of scholars, lawyers and jurists who also denounce the doctrine. Thomas approach is different from Sotomayors in that his concern in Ziglar seemsto be that the court has gone off the rails of common law in shaping the contours of the defense, while hers is that the courts current approach to qualified immunity is tantamount to an absolute shield that can tell police officers to shoot first and think later. Where they end up, however, might indeed be the same, as both might be open to revisiting the doctrine itself, a question that some of the pending cert petitions, like Baxter v. Bracey and Corbitt v. Vickers, present. Other cases might lend an opportunity to refine the doctrine in either direction, such as Kelsay v. Ernst, which is asking specifically about nonthreatening, nonresisting subjects.

Question: Decisions by the Supreme Court have far-reaching consequences that are sometimes hard to quantify. Do you have your eye on another project like this?

Reuters team: As we mentioned above, were not done with qualified immunity yet!

Posted in Featured, Academic Round-up

Recommended Citation: Katie Bart, Ask the author: Reuters on the consequences of qualified immunity for police officers, SCOTUSblog (May. 15, 2020, 1:11 PM), https://www.scotusblog.com/2020/05/ask-the-author-reuters-on-the-consequences-of-qualified-immunity-for-police-officers/

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Ask the author: Reuters on the consequences of qualified immunity for police officers - SCOTUSblog

In a shameful vote this week as part of an extension of the dreaded and controversial Patriot Act, the Senate handed William Barr and the Trump administration the ability to spy on Americans web browsing and internet search histories without a warrant.

The vote on a bipartisan amendment to protect this information from government surveillance sparked immediate outrage online and deservedly so. Our web browsing and search histories contain the most intimate personal information. Any administration let alone the draconian Trump justice department should be required to comply with the fourth amendment before trawling through it.

Depressingly, the amendment failed to pass the 60-vote threshold by exactly one vote, 59-37, with two Democratic caucus members, including Bernie Sanders, failing to show up. As far as I can tell we lost because there were some people absent, Ron Wyden, who co-sponsored the bill with Republication senator Steve Daines, told Politico.

Even worse, 10 Democrats including Dianne Feinstein, Sheldon Whitehouse and Mark Warner sided with Mitch McConnell and the Trump administration and voted against the provision. Time and again, when it comes to privacy and civil liberties issues some Democrats have consistently sided with the Trump administration, despite portraying the president as lawless and unaccountable on a variety of subjects. It never ceases to be infuriating.

But lost in the mix of this damaging loss for privacy, and perhaps even because of it, was some very good news. A second privacy-focused amendment to the Patriot Act one that garnered far less coverage but is potentially even more substantive did pass overwhelmingly on Wednesday night. Because the substance of the amendment was much harder to fit into a headline, it received a fraction of the attention. But it may be because the vote on web browsing histories sparked immediate outrage on Twitter, politicians from both parties felt the need to accept it.

The amendment, known as the Leahy-Lee amendment named after its bipartisan co-sponsors Patrick Leahy and Mike Lee reforms the secretive foreign intelligence surveillance (Fisa) court in a significant way. The Fisa court, which authorizes national security and foreign intelligence surveillance on US soil, first came to the general publics attention during the Snowden disclosures.

The court, for decades, would listen to the governments side of an argument for new surveillance powers in complete secrecy, and almost never heard from the civil liberties perspective. The court was known to rubber-stamp virtually anything the FBI or NSA asked for. This one-sided system, as the New York Times reported at the time, carved out classified exceptions to the fourth amendment and created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans without the public knowing about it.

After the Snowden disclosures, Congress was forced to create an amicus curiae or friend of the court position, which at very limited times and at the courts discretion, would be allowed to resist the governments arguments. Even though the position was extremely restricted, over the past several years, it has been shown to work on the few occasions its been used.

The Leahy-Lee amendment significantly strengthens the amicus position, giving the courts civil liberties representative much more latitude to access classified information and broadens their ability to weigh in on virtually all cases that may infringe upon the civil liberties of Americans.

And heres where it gets interesting. The House passed a different version of a Patriot Act extension back in March, so now the Senates version has to go back to the House, so the bills can match up. It gives privacy advocates another opportunity to get through even more robust changes, like the Wyden amendment protecting our Google search data.

This issue is not the same partisan fight that we have become so accustomed to in Washington. Instead of a Republican-Democrat split, like so many issues in recent years, the fight over privacy and the Patriot Act has pitted a bipartisan left-right coalition against the moderate, pro-national security state establishment of both parties. Many Republicans crossed the line to vote with the majority of Democrats, while 10 Democrats sided with Barr and the Trump administration to hand them this power.

While its incredibly depressing Congress has failed to protect online privacy as it has become this generations seminal issue, the fight is not over. Especially if representatives hear loud and clear how much this issue means to Americans.

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The US Senate voted to let Trump spy on your search history. But all is not lost - The Guardian