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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

Scot Dutcher is standing in the gap between solid investigations of legitimate animal mistreatment and those that are misguided. As a former staffer at the Colorado Department of Agricultures Bureau of Animal Protection, Dutcher was involved in cases involving alleged livestock mistreatment.

After 15 years assisting law enforcement in various cases, he has a deep understanding of the states animal care statutes as well as the criminal and civil animal neglect statutes.

He has created AgNav Consulting to work with law enforcement agencies investigating livestock neglect, to provide training to law enforcement and key farm and ranch employees. Training topics run the gamut from recognizing and determining an animals body condition score to basic animal nutrition, to humane euthanasia. Providing training to law enforcement to identify which allegations are legitimate is key, and training regarding the necessary evidence in a legitimate investigation help both producers facing bogus charges and law enforcement faced with differentiating between the two.

Covert surveillance, the term he prefers when referring to the undercover videos filmed on operations by activists, ought not be confused with investigations. Dutcher said groups filming are doing so to advance their agenda and he has tips and advice for managers and owners facing this threat.

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On-farm assessments are a service Dutcher can provide, offering feedback to owners or managers regarding the placement of no trespassing signage, gates, and things, like sick pens, for example, that would be better located out of sight from a public road. Making simple changes to avoid being a target of extremists can be an effective first step for many operations, especially in Colorado, a state he said is second perhaps only to California in the number of active animal rights extremists and activists.

When hiring employees, Dutcher said a simple Google search can provide a look into any connections or interactions an individual could have to animal rights groups, especially on social media. If no data appears at all, that could also be a red flag.

From a legislation standpoint, Colorado Senate bill 20-104 is one that a number of groups have monitored closely. According to the summary, the bill grants additional duties and powers to bureau of animal protection agents, including the authority to conduct investigations; to take possession of and impound any animal that the agent has probable cause to believe is a victim of cruelty to animals. The bill is currently under consideration and is in limbo with the current Senate recess. In Colorado, Bureau of Animal Protection agencies are non-profit, employees of such groups as the Colorado Humane Society, SPCA, and the Larimer Humane Society.

Dutcher is strongly opposed to any bill that grants criminal authority powers to non-profits.

I understand why theyre in favor of it, but it is not going to do agriculture any favors, he said. It gives non-profits criminal authority.

Morgan County Sheriff Dave Martin said in a previous interview that he supports the bill because his department doesnt have the trailers and equipment necessary to impound or transport animals to rescues or sale barns, as is often necessary. Dutcher said that is where he can serve law enforcement with transport assistance and ensuring that the claims are legitimate, and the investigation gathers important evidence.

Thats what Im here for, to assist the sheriffs departments doing the investigations, where the criminal authority is and should remain, he said.

No other non-profits in the state, he said, have that type of authority, especially to impound an animal to potentially gain monetarily from the seizure. It is, he said, a clear conflict of interest.

In the court system, Dutcher can serve as an expert witness either for the prosecution in legitimate animal neglect or mistreatment cases (he avoids the term cruelty as it is not clearly defined in statute) or assist the defense in a case that is not legitimate to avoid wrongful prosecution.

Its so important that we, to the extent that we can, stick up for and stand behind good agricultural producers, he said. There are so many challenges facing agriculture right now and it seems like all the additional regulations and animal care challenges fall to the producer and he is the least capable of passing those increased production costs on to the consumer because the market determines what he gets for his product.

THE STAND

Misplaced authority, conflicts of interest, legislation pushed by extremist groups, and animal welfare are all the made-for-the-big-screen subjects of The Stand at Paxton County, currently streaming on Netflix. Trent Loos, a Nebraska rancher and radio host appears in the film. The film is inspired by the story of longtime North Dakota rancher Gary Dassinger.

According to Protect the Harvest, Forrest Films produced The Stand at Paxton County to tell the important story that serves as a warning to ranchers. Dassinger, who raised Quarter Horses for over 40 years, faced the seizure and sale of his animals, criminal charges, and a 20-year prison sentence in 2017 for what essentially amounted to false claims.

Measure 5, an initiated state statute was defeated by North Dakota voters, but an amended version became law in 2013. Law enforcement trained by the Humane Society of the United States on the enforcement of the law, seized livestock based on the behavior and claims of a disgruntled employee.

Loos said he dug into the case several years ago after a call from a neighbor of Dassingers in Stark County, North Dakota.

I did dig into it and I found out the sheriff and the local veterinarian, who had an ax to grind against Gary Dassinger for an old issue, were trying to make an example of him as an animal abuser, Loos said.

The first time Loos said he heard of a similar situation was in Colorado when a producer from the Western Slope stopped him after he spoke to an ag group. The producer was pulling a calf from a heifer in a pasture near the road. Loos said the producer was using OB chains and hooks, commonplace for assisting in a calving.

All of a sudden a deputy sheriff pulls up there with siren blaring, lights on, and pulls his weapon and asks this rancher to get away from that animal, he said. There had been a report that there was some sort of suspicious activity taking place and the deputy was so ignorant when he arrived and saw a rancher pulling a calf, he drew his weapon and asked him to get away from the animal.

Loos said it sounds absurd, but it falls into what he said Dassinger fell victim to, which is the Open Fields Doctrine. The Open Fields Doctrine allows search and seizure without a warrant in areas like pastures, wooded areas, open water and vacant lots despite the presence of no trespassing signage, fences or gates. Though some states have rejected the law, many maintain that the Fourth Amendment does not protect such areas.

Gabel is an assistant editor and reporter for The Fence Post. She can be reached at rgabel@thefencepost.com or (970) 768-0024.

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Standing in the Gap: Extremists, legislation, and Netflix - Fence Post

The American Civil Liberties Union (ACLU) is suing a California police department for using excessive force to arrest a teenager who walked through a residential neighborhood while on his way to get prom tickets.

A lawsuit states that the interaction between then-high school student Pablo Simental Jr. and officers with the Delano Police Department (DPD) occurred on April 11, 2019. Simental and three of his friends were walking to Wonderful College Prep Academy to get prom tickets. The trip took them through a residential neighborhood.

While in the neighborhood, the suit alleges that DPD officers, including Ruben Ozuna, Michael Strand, and Guadalupe Contreras, approached the teens and began to question them. The teens invoked their right to remain silent.

That's when the lawsuit says the officers used excessive force on the teens, some of which was captured on video and shared on social media.

The lawsuit alleges that the officers purposefully veered their patrol vehicle toward the teens, almost hitting them, and began conducting arrests for jaywalking. The behavior worsened after the Simental and the other teens pulled their cellphones out and began to film the officers. The officers reportedly tried to take the phones by force, forcing some teens to the ground and handcuffing them. Ozuna ran toward Simental, body-slammed him, and put his body on top of Simental to handcuff him tightly.

The lawsuit says this caused "severe pain."

Though criminal charges were not filed against Simental in court, he remained in jail for several hours with his hands cuffed tightly behind his back.

Following the incident, Simental received a letter stating that the DPD conducted an investigation and exonerated the officers of misconduct.

The ACLU is now suing the officers and the city for damages in the U.S. District Court for the Eastern District of Californiaarguing that the defendants violated Simental's First Amendment right against retaliation by reacting with force when the teens questioned the officers and recorded their actions. The ACLU also argues that the defendants violated Simental's Fourth Amendment right against unreasonable seizure and excessive force.

The DPD issued the following statement last year about the events, admitting to using force:

The Delano Police Department is aware of videos posted to Facebook showing officers making several arrests on the 2400 block of Liverno Drive. These subjects were initially found in the roadway and refused officers' orders to move. Officers attempted to detain them however, they refused to comply. Force was then used to make arrests, some of which can be seen in the video.

Whether Simental and his friends were simply walking through a neighborhood or jaywalking, like the cops claim, neither action is ever egregious enough for force to be used in such a manner.

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Lawsuit Alleges California Cops Used Excessive Force on Teens for Walking Through a Neighborhood - Reason