What is Qualified Immunity and why does it fail at life?

Section 1983 lawsuits allow private citizens to sue individual government officials, including police officers, for violations of federal rights performed under color of law.

If a government officer violates a federally protected civil right, the citizen has the legal right to file a civil lawsuit against the officer. 42 USC 1983, passed in 1871, allows citizens to sue state and local government officials – especially police officers – for damages when their rights are violated. Even if they’ve suffered no monetary damages, if they are successful, they’re entitled to an award of reasonable attorney fees and expenses. The same sort of lawsuit is available against federal officials pursuant to the U.S. Supreme Court case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971). Those are known as “Bivens actions.” But before these lawsuits can be successful, they have to get past the obstacle of the Qualified Immunity defense.

Qualified Immunity is a defense to civil lawsuits alleging the violation of federal rights while acting under color of law. It does not apply as a defense to criminal prosecution.

Qualified Immunity is a civil defense to these lawsuits, provided to government officials by the Supreme Court initially in the case of Pierson v. Ray in 1967, and then again, in its current form, in Harlow v. Fitzgerald, in 1982. It was rearranged yet again in Pearson v. Callahan (2009) giving federal judges more discretion in granting qualified immunity.

Qualified Immunity has been the subject of intense debate in recent years, and especially in recent months. Many commentators have criticized it as an example of the Court creating legislation from the bench, and in so doing having created a significant problem for citizens seeking to hold their government officials accountable for the violations of their civil rights.

As Ninth Circuit Judge Stephen Reinhardt has written, the Supreme Court’s recent qualified immunity decisions have “created such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights.” Three of the foremost experts on Section 1983 litigation—Karen Blum, Erwin Chemerinsky, and Martin Schwartz—have concluded that recent developments in qualified immunity doctrine leave “not much Hopeless for plaintiffs.” 

Although the concept of qualified immunity was drawn from defenses existing in the common law at the time 42 U.S.C. § 1983 was enacted, the Court has made clear that the contours of qualified immunity’s protections are shaped not by the common law but instead by policy considerations. In particular, the Court seeks to balance “two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” 

The Supreme Court’s original rationale for qualified immunity was to shield officials from financial liability. The Court first announced that law enforcement officials were entitled to a qualified immunity from suits in the 1967 case of Pierson v. Ray. That decision justified qualified immunity as a means of protecting government defendants from financial burdens when acting in good faith in legally murky areas. Qualified immunity was necessary, according to the Court, because “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

The reality of Qualified Immunity, through my eyes, which are the eyes of someone who litigates civil rights lawsuits mostly as a plaintiff, is that it’s more of an annoyance in the usual case litigated by an experienced civil rights attorney, but that it’s often a problem in those unique cases where justice really should be served, but isn’t. The big problem, in my opinion, is the use of an objective standard. Common sense tells us that bad faith conduct by law enforcement should be punished. But the subjective bad faith, or malicious intentions, of a defendant police officer, surprisingly may not even be admissible in court. Because it’s usually irrelevant under the standard.

Qualified Immunity is analyzed using an objective standard, rather than subjective.

At its inception in 1967, there was a subjective component to the qualified immunity analysis. From 1967, when qualified immunity was first announced by the Supreme Court, until 1982 when Harlow was decided, a defendant seeking qualified immunity had to show both that his conduct was objectively reasonable and that he had a “good-faith” belief that his conduct was proper. In 1982, the Court in Harlow dropped the second part, the subjective good faith belief requirement, finding that such a requirement was “incompatible” with the policy goals of qualified immunity, which now not only was to protect law enforcement officers from financial liability, but also now to avoid subjecting them to either the costs and burdens of trial, as well as the burdens of broad-reaching discovery.

Qualified Immunity cannot be justified as a means of reducing civil litigation surrounding allegations of police misconduct.

In a recent study discussed in a Yale Law Journal article, out of a study of 1,183 lawsuits against state and local law enforcement defendants, over a period of two years, in five federal district courts, it was found that qualified immunity was only raised as a defense in 37% of the cases, and out of those, only resulted in dismissal in 3.6% of the casesSee How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

I’ll repeat that: out of 1,183 lawsuits against police officers for civil rights violations, Qualified Immunity was raised as a defense by the officers in only 37% of the cases, and out of those, only 3.6% resulted in dismissals.

Another study by Alexander Reinert, looking at Bivens actions (against federal officials), found that grants of qualified immunity led to just 2% of case dismissals over a three year study period. However, the big difference in those cases from regular Section 1983 cases, is that the defense attorneys are Assistant United States Attorneys – members of the civil branch of each federal district’s federal prosecutor’s office. As such, they may take a different route of defense, as a matter of DOJ policy. So they are somewhat different creatures, though both involve issues of Qualified Immunity.

Therefore, according to the numbers, “Qualified Immunity” itself is rarely the formal reason that civil rights lawsuits against law enforcement end. Moreover, there are certain types of cases where qualified immunity cannot be utilized, such as those against the employers of law enforcement officers (Monell Claims). Out of the 1,183 cases studied, 8.4% fell into this category. 

The Yale study also showed that most of the qualified immunity litigation is taking place at the summary judgment stage, or even the trial stage, rather than at the motion to dismiss stage, as the Supreme Court apparently intended. That means that litigation is not being avoided. It is perhaps being increased. 

As Alan Chen has observed, when considering the deficiencies of qualified immunity, “the costs eliminated by resolving the case prior to trial must be compared to the costs of trying the case . . . . [T]he pretrial litigation costs caused by the invoking of the immunity defense may cancel out the trial costs saved by that defense.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Moreover, Qualified Immunity likely increases the expense, as well as the delays, associated with federal civil rights litigation.

Although qualified immunity terminated only 3.9% of the 979 cases in my dataset in which qualified immunity could be raised, the defense was in fact raised by defendants in more than 37% of these cases—and was sometimes raised multiple times, at the motion to dismiss stage, at summary judgment, and through interlocutory appeals. Each time qualified immunity is raised, it must be researched, briefed, and argued by the parties and decided by the judge. And litigating qualified immunity is no small feat. John Je ries describes qualified immunity doctrine as “a mare’s nest of complexity and confusion.”155 Lower courts are “hopelessly conflicted both within and among themselves” as a result. One circuit court judge reported that “[w]ading through the doctrine of qualified immunity is one of the most morally and conceptually challenging tasks federal appellate court judges routinely face.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Qualified Immunity cannot be justified as a means of protecting police officers from personal financial liability.

In the study of 1,183 civil lawsuits, police officer defendants paid little, to none, of settlement or verdict amounts. Out of the 44 largest law enforcement agencies included in the study, which included 70 agencies overall, the individual officers paid just 0.02% of the dollars awarded to the plaintiffs in those suits. In the 37 smaller and midsize law enforcement agencies, no individual officer contributed any amount to any award to a plaintiff during this period. All of the officers were indemnified by the employers, even where they were fired, disciplined, or even criminally prosecuted for their conduct. This has been my experience as well, except in one particular case I’ve personally been involved with. I only know of one other instance in West Virginia where there was a second occurrence.

Qualified Immunity cannot be justified as a means of protecting police officers and government officials from the non-financial burdens of discovery and trial.

Often discussed in Qualified Immunity caselaw is this phrase, and so-called policy objective, of shielding government officials from the burdens of participating in a lawsuit, including the discovery process and the trial itself. For this reason, courts have the discretion to apply Qualified Immunity early in the litigation, including at the motion to dismiss stage, prior to any discovery being conducted. However, the study shows that this policy goal is not being met.

I found that, contrary to judicial and scholarly assumptions, qualified immunity is rarely the formal reason that civil rights damages actions against law enforcement end. Qualified immunity is raised infrequently before discovery begins: across the districts in my study, defendants raised qualified immunity in motions to dismiss in 13.9% of the cases in which they could raise the defense. 

These motions were less frequently granted than one might expect: courts granted motions to dismiss in whole or part on qualified immunity grounds 13.6% of the time.Qualified immunity was raised more often by defendants at summary judgment and was more often granted by courts at that stage. But even when courts granted motions to dismiss and summary judgment motions on qualified immunity grounds, those grants did not always result in the dismissal of the cases—additional claims or defendants regularly remained and continued to expose government officials to the possibility of discovery and trial. Across the five districts in my study, just 3.9% of the cases in which qualified immunity could be raised were dismissed on qualified immunity grounds.

And when one considers all the Section 1983 cases brought against law enforcement defendants—each of which could expose law enforcement officials to whatever burdens are associated with discovery and trial—just 0.6% of cases were dismissed at the motion to dismiss stage and 2.6% were dismissed at summary judgment on qualified immunity grounds.

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Thus, Qualified Immunity was the reason for dismissal in only 3.2% of the 1,183 lawsuits in the study. The defendants raised the defense in 37.6% of the cases where the defense was available. Out of these, only 13.9% of these were raised at the earliest point available – that is, the motion to dismiss stage – that being the only method of avoiding the burden of participating in the discovery process. Courts granted less than 18% of those motions raised at the motion to dismiss stage, which includes motions granted “in part,” which means that only some claims were dismissed, and that others were allowed to proceed. 

Therefore, the existence of Qualified Immunity is not serving the alleged policy goal of shielding government officials from the burden of participating in the litigation process. Unless, of course, one considers 3.2% to be a substantial shield from litigation. To the contrary, it arguably has increased the negative public perception of a lack of equal justice in the justice system as a whole.

How to strip a police officer of Qualified Immunity

To strip a police officer of qualified immunity in a civil rights lawsuit, a plaintiff must establish that:

1. the officer’s conduct violated a federal statute or constitutional right; and

2. the right was clearly established at the time of the conduct, such that

3. an objectively reasonable officer would have understood that the conduct

violated that right.

Which comes first? Until recently, the United States Court of Appeals required a court to first determine whether or not a constitutional right had been violated and then determine whether an officer was entitled to qualified immunity. See Saucier v. Katz, 121 S.Ct. 2151 (2001). Courts and attorneys were routinely ignoring this mandate and somewhat recently, the United States Supreme Court in Pearson v. Callahan (2009) reverted back to its initial analysis and now courts are free to evaluate these issues in whatever order the court desires. 

The real world application of Qualified Immunity.

1. There generally tends to be a “grace period “between a change in the law, and then moment it becomes “clearly established” for qualified immunity purposes.

2. Qualified Immunity is generally a poor defense to claims of excessive use of force by a police officer. The reason for this is because this often involves highly contested disputes of fact which make a trial likely. For example, a plaintiff alleges an officer kicked him in the groin while he was handcuffed. The officer responds that the plaintiff is lying, and that he did no such thing. This is most certainly going to require a trial to decide the truth of the matter. It doesn’t really involve a legal analysis of whether a police officer would know it would be a civil rights violation to kick a handcuffed detainee in the groin for no good reason. The primary exception to the excessive force rule is police shooting cases where the plaintiff is dead. Such a case usually involves family members of the decased filing suit. As such, the plaintiff himself/herself cannot tell his/her side of the story. With only one side available in many such cases, the court may grant qualified immunity based on the officers’ un-contradicted affidavits or deposition testimony.

3. Qualified Immunity is a very effective defense when dealing with search and seizure issues, which are rapidly developing and changing (due to commonly being involved in criminal litigation, which occurs in much greater volume and frequency). This creates so-called “grey areas” of the law, for which courts tend to give police officers the benefit of the doubt, so to speak.

4. An officer’s mistaken understanding of the law, or a reasonable misapprehension of the propriety of his conduct, can still provide a defense under Qualified Immunity. See Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.”).

5. Qualified immunity applies as an effective defense in wrongful arrest cases, where the Court looks at the facts in the record and determines that probable cause exists, or that the officer made a reasonable mistake as to the existence of probable cause.

Therefore, ironically, Qualified Immunity is not much of a bar to a plaintiff seeking to hold a police officer responsible for the use of excessive force, such as in the recent death of George Floyd. Without a doubt, no court in the land would grant Qualified Immunity to the officer involved in Mr. Floyd’s death. There would be, or probably will be, factual issues to be determined at trial. Rather, it mostly is going to apply to those “grey areas” of search and seizure law. Moreover, it’s going to apply usually without regard to the officer’s subjective ignorance, or expertise, regarding the law. It’s an objective, fairly low standard.

For this reason, I agree with the author of the Yale Law Review study, in that rather than calling for the end of Qualified Immunity, it might be best to return to a subjective standard version of Qualified Immunity, where police officers who act in bad faith, as well as those who act in good faith, though objectively unreasonably, can be held accountable. But as for Qualified Immunity itself, whether it exists, or does not exist, it’s not going to apply to any of the officers directly involved in Mr. Floyd’s death. But it will be involved in many other cases, including cases where there certainly was police misconduct, for which the victim will be barred from recovery. That can’t be a good policy, in my opinion.

Fayette County Search Case was Settled

I’ve had several people ask me about an update on the Sizemore case, which was a search and seizure case out of Fayette County, West Virginia, involving a multi-jurisdictional drug task force who were found by a federal judge to have included false allegations in a search warrant application. The federal criminal charges were dropped after the evidence seized during the search was suppressed from evidence. Then the case was brought to me for a civil lawsuit. We filed in in September of 2019. We recently settled the case.

This was the case where the Charleston Gazette newspaper thought it was shocking that we filed a lawsuit over an illegal search where, despite the illegal warrant, drugs actually were found in my client’s house. I believe the headline was, “Officers found his $25k of heroin. He walked free, and now he’s suing police.”

In my December 2019 update, in response to the police officers’ motion to dismiss the lawsuit, I reiterated that equal justice under the law should mean that even people found with drugs should be entitled to the equal application of law and posted our response brief, as well as their motion.

In my January 2020 update, I posted a copy of the federal court’s memorandum opinion and order denying the motion to dismiss, and denying the application of qualified immunity, ordering that the case proceed. You’ve been hearing a lot about qualified immunity lately. The order in this case denied qualified immunity to the officers:

As previously explained, Defendant Morris violated Plaintiffs’ Fourth Amendment protections. Thus, the next question is whether the violated right was clearly established at the time of the events in question. “[I]t has long been established that when law enforcement acts in reckless disregard of the truth and makes a false statement or material omission that is necessary to a finding of probable cause, the resulting seizure will be determined to be unreasonable.” Gilliam v. Sealey, 932 F.3d 216, 241 (4th Cir. 2019); see Franks, 438 U.S. at 157. 

As the Fourth Circuit has explained, “a reasonable officer cannot believe a warrant is supported by probable cause if the magistrate is misled by statements that the officer knows or should know are false.” Miller, 475 F.3d at 632 (quoting Smith v. Reddy, 101 F.3d 351, 355 (4th Cir.1996)).

Qualified immunity is actually pretty rare in excessive force lawsuits – at least where the plaintiff’s attorney knows what he or she is doing. Ideally, there is a dispute of facts, which requires a trial. But in search in seizure cases, it’s usually less of a factual dispute, and more of a legal dispute. The gist of qualified immunity is that courts give some leeway to police officers, who can’t be expected to automatically know each and every new case that comes out. Some courts expand it, unfortunately, but many don’t.

Here, the court equally applied the Fourth Amendment and justice was served. A police officer should not be allowed to lie in order to obtain a search warrant, even where they believe that the ends justifies the means. Here’s the full order, which was quoted above:

Petition for Rehearing En Banc Filed Yesterday with the Fourth Circuit in the Orem Search and Seizure Case

Yesterday we filed a Petition for Rehearing En Banc with the U.S. Court of Appeals for the Fourth Circuit in the Orem case. On May 11, 2020, the Fourth Circuit handed down a panel decision in the Orem v. Gillmore, et al., Section 1983 civil rights lawsuit, arising out of Berkeley County, West Virginia.

Here’s the background post on the initial filing of the lawsuit, in April of 2018. This is the case that made national headlines when a Republican nominee for Sheriff was arrested for allegedly overdosing in his home. He was arrested by a state trooper, who showed up at the scene of the medical emergency, and performed a warrantless search of a bathroom in the house. The trooper’s longtime secretary was the married to one of the candidate’s political opponents. During the arrest booking, a photograph was taken of the client while handcuffed inside a secure area of the state police detachment. It was uploaded to social media as a meme, and quickly went viral. Of course, the state police investigated themselves, and strangely were unable to find the culprit.

The damage was done, as far as the election is concerned. The prosecuting attorney determined that the arrest resulted from an illegal search of the bathroom, and evidently the court agreed. The criminal charges were dismissed. We filed a civil lawsuit in federal court. Unfortunately however, the Court granted the trooper qualified immunity on the search, and claimed that we missed the statute of limitations on the false arrest count. I argued up and down that the judge and the opposing lawyer were confused, and that false arrest has a 2 year SOL – not 1 year, as they claimed. Well, I was right. The Fourth Circuit overturned the ruling on the statute of limitations, holding that I was right about it being 2 years. But then they granted qualified immunity anyways.

Here’s the Petition for Rehearing:

Here’s the opinion, if you want to read it. Unfortunately, the opinion was pretty sparse – granting the defendant police officer qualified immunity, with pretty much no explanation whatsoever. They just said, it was “beyond debate.”

The expansion of qualified immunity to police officers who violate the most central tenant of the Fourth Amendment – a warrantless search of a home – is concerning. Qualified immunity is supposed to apply to the gray areas, where we can’t expect police officers to understand all the nuances and constant changes in case law. But the warrant requirement for searching a man’s home? The U.S. Supreme Court has long held that a police officer cannot be entitled to qualified immunity for the warrantless search of a home. Hopefully we get a rehearing on this and a new opinion, or else we very well may end up there.

Lawsuit being filed against the West Virginia Governor today challenging his COVID-19 executive orders

Being filed today: I’m representing S. Marshall Wilson, of the West Virginia House of Delegates, three other delegates, and one West Virginia Senator, in their challenge to the West Virginia Governor’s COVID-19 executive orders. Here’s the petition being filed. Press conference at the State Capitol, today at 11:00 a.m.

Update: some footage from the press conference at the State Capitol:

Article in Saturday’s Charleston Gazette-Mail:

https://www.wvgazettemail.com/coronavirus/lawmakers-file-petition-with-state-supreme-court-over-governors-actions-during-pandemic/article_009e51a9-70da-5bb3-8e48-e4e37f658448.html

Delegate S. Marshall Wilson (right), I-Berkeley, discusses the filing of a petition seeking a writ of mandamus against Gov. Jim Justice Friday outside the state Supreme Court. Attorney John Bryan (left) filed the petition on behalf of five state lawmakers, including Wilson.JOE SEVERINO | Gazette-Mailhttps://www.wvgazettemail.com/coronavirus/lawmakers-file-petition-with-state-supreme-court-over-governors-actions-during-pandemic/article_009e51a9-70da-5bb3-8e48-e4e37f658448.html

Case Updates from The Fort

Update on various cases from within the safe confines of our fort headquarters:

Family Court Search Case:

On Monday, Matt Gibson filed a formal complaint with the Judicial Investigation Commission, as well as a written Motion to Disqualify the judge from the video. We will let those take their course and see what happens. I’m told that they may have already been involved prior to the complaint. I still haven’t seen any other cases where this has happened anywhere else in the state, nor anywhere else in the country.  Right now I’ve been informed of multiple instances of this happening – only in this particular county.

Walker Open Carry Case:

We field Notice of Appeal, and it has now been transferred to the US Fourth Circuit Court of Appeals. Soon we will receive a scheduling order and proceed with the briefing process.

Correctional Officer Traffic Stop Case:

The officer from the video, who was more specifically a parole officer for the WV Division of Corrections has since resigned. I’m told there’s a pending criminal investigation. I have reached out to the DOC’s counsel and requested negotiations with their insurance adjustor. If they don’t make Shawn a fair settlement offer, we’ll file suit.

Putnam County Search Cases:

Right now we are prepared to proceed on six separate search cases out of Putnam County, all related to the same unit of individuals. Although there was an “internal investigation” which we assisted in, there has been no information provided; no outcome whatsoever. At least one of the officers is still arresting people, according to information I’ve received.  So it sounds like nothing has happened.  We issued additional FOIA requests, and only one of the cases we’re investigating, so far, has returned any documentation or paperwork whatsoever.

 

Family Court Judge Searches Home


I just uploaded this yesterday afternoon and it’s already over 12k views on Youtube. Probably because most people can relate with having been before a Family Court judge before, whereas they may not be able to automatically relate to someone involved in the criminal justice process.

This is video footage from our client, Matt Gibson, a federal law enforcement officer who had his home searched by a Family Court judge over a year after his divorce was finalized.  This just happened on March 4, 2020. I’ve never seen anything like this before, so needless to say, I’m still researching the mountain of issues here.

 

This isn’t the first viral video showing a West Virginia Family Court judge on a rampage.  Remember Chip Watkins in good ‘ole Putnam County? Man that guy was something else.

 

The Family Court involved in our video is Raleigh County, West Virginia, Judge Louise Goldston. If you know of this happening in other cases, please let me know as I continue to look into this.

UPDATE 3/11/20: Voicemail received by my client from the opposing attorney the evening prior to the hearing, which he himself scheduled. In the recording he says that the Court asked him to call him to convey a settlement offer (which sounds like he’s admitting to an ex parte communication with the judge, meaning without the other party having the opportunity to participate, which is a big no-no) and he demands $5,000.00 to stop the “hearing” which would take place the next day:

UPDATE 3/13/20: TV news segment:

 

Federal Court Rules Against us in the Walker Case. Let the appeal begin….

So we just received the Court’s ruling in the Walker v. Putnam County open carry AR-15 case, pending in federal court in Huntington, West Virginia, and as suspected would happen, the Court granted summary judgment for the defendants, which dismisses lawsuit, subject to our right to appeal to the Fourth Circuit. We absolutely are going to appeal.

Perhaps the most important part of the ruling, in my mind, was this:

In determining whether reasonable suspicion existed, the Court is mindful of the Fourth Circuit’s instruction that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” Black, 707 F.3d at 540.

What qualifies as something “more” is a developing area of law as courts face the expansion of open carry, which can arouse suspicion in combination with other innocent facts. See U.S. v. Arvizu, 534 U.S. 266, 277–78 (2002) (holding that factors “susceptible of innocent explanation” may “form a particularized and objective basis” for reasonable suspicion when considered together).

The parties here only dispute whether the uncontested facts of the encounter constitute the something “more” required for reasonable suspicion to stop Walker as he openly carried his semi- automatic rifle. After considering the issue, the Court concludes reasonable suspicion existed.

Here, in my opinion, this logic is sort of like saying, “You’re not allowed to stop people open carrying a firearm in an open-carry state in order to  investigate whether they are legally allowed to possess a firearm, but . . . I’m going to allow it because police officers should be allowed to do so under certain circumstances, for the following reasons . . . .” Whereas, US v. Black provided for no exception to its bright-line rule protecting people open-carrying firearms, now exceptions are being sought for AR-15 style rifles, as well as for the proximity to a school, or a school shooting.

Of course, “innocent facts” can, combined with “more,” equal reasonable suspicion to stop an individual open-carrying a firearm in an open-carry state. But what has been ignored here, is that the only suspected crime was either 1) Michael openly carrying an AR-15, which is not a crime in West Virginia; or 2) being a prohibited person from possessing a firearm, which falls squarely within the holding of U.S. v. Black: you cannot stop and ID an open-carrier in an open carry state (without reasonable suspicion of some other crime). In other words, the mere presence of the firearm cannot be the suspected crime.

The other flawed premise of this opinion is that, even though Deputy Donahoe clearly only suspected Michael Walker of being a prohibited person (which violates Black) as illustrated by the video, and even though Donahoe showed no indication of suspicion of Michael being a school shooter at the time of the encounter, that because the standard is a subjective one, we can ignore everything Donahoe actually said/did, and focus on far-flung theories cooked up by lawyers after-the-fact.

This is the supposed reasonable suspicion justifying the stop: 1) the type of weapon Michael possessed; 2) the encounter’s proximity to a school; and 3) the encounter’s proximity to the Parkland School Shooting.  None of these facts, other than the rifle being an AR-15 style rifle, are present in the underlying facts of the case. More troubling, even if they were present in the facts of this actual encounter, we still have the same constitutional dilemma: none of the allegations are illegal. AR-15 style rifles are perfectly legal. Michael’s location, i.e., proximity to the nearest school, was completely legal; and possessing a firearm in proximity to a school shooting 900 or so miles away is certainly not illegal. Moreover, none of these facts are individualized to the encounter.

The objective standard cannot be used to mean, can we think up some hypothetical justification for a stop, after-the-fact, in order to justify the stop?  No, we can’t. The objective facts must be analyzed using the actual facts present, which is evidenced by the subjective testimony of those involved. Just because Donahoe is wrong about everything, doesn’t mean that we can throw out his testimony, and the video, and use non-individualized general data, such as weapon types and school proximities to justify searches and seizures.

In any event, as I suspected, the language I quoted above is where we’re heading. When we take this up on appeal, will the Fourth Circuit castrate U.S. v. Black so that any police officer can stop, ID, background check, and Terry Search, anyone openly carrying firearms in open carry states? After all, any good prosecutor or civil defense lawyer could think up some legal theory, based on proximity to some sensitive location: school, courthouse, post office, government building, whatever.

Once you have “reasonable suspicion,” police can then perform a Terry Search, period. There’s no uncoupling Terry Searches from investigatory detentions. An officer can choose to just run an ID and not do a Terry Search. But he will be justified under the law in doing both, should he choose to do so. The old slippery slope of civil rights.  It never goes up – only down.

The opinion also included some of the false information on AR-15 style rifles, which I had been hoping to avoid:

Here, Walker’s possession of an AR-15-style rifle under these circumstances was unusual and alarming. Whereas possessing an AR-15 at a shooting range or on one’s own property would not raise an eyebrow, there was no obvious reason for the rifle’s possession here.

Unlike a holstered handgun, like that at issue in U.S. v. Black, AR-15s are not commonly carried for self-defense. 707 F.3d at 535. Nor are they traditionally used for hunting. Seeing Walker at 6:00 p.m. in February in an urban area would further diminish an inference that Walker possessed the rifle for hunting because the sun would soon set and hunting after dark is generally prohibited.

The rifle being uncased, ready to fire at a moment’s notice, and Walker’s camouflage pants also contributed to an unusual presentation of the firearm. See Embody, 695 F.3d at 581 (finding an openly carrying man’s military-style camouflage clothing contributed to reasonable suspicion); Deffert, 111 F. Supp. 3d at 809, 810 (holding the same).

The sight was unusual and startling enough to prompt a concerned citizen to dial 9-1-1 and for Donahoe, based on his practical experience, to investigate Walker’s destination. See Deffert, 111 F. Supp. 3d at 809 (holding an officer responding to a 9-1- 1 call about a man carrying a firearm, as opposed to randomly stopping the man, supports finding reasonable suspicion); Smiscik, 49 F. Supp. 3d at 499 (holding the same).

Together, these facts would form a particularized and objective basis for an investigatory stop.

I had attempted to rebut some of this, as it came up during oral arguments on the motion. But post-argument briefing was not allowed. There was no evidence about AR-15s in general involved in the underlying case, whatsoever, except the after-the-fact testimony by the deputy that he was allegedly afraid of scary black rifles, even though he said nothing about it at the time, according to the video.

AR-15 style rifles are today the most popular firearm in America, and are widely used by people hunting. Coyote hunting takes place at dusk and at night. The video clearly shows Michael’s rifle slung over his shoulder, with muzzle pointed down.  Even Deputy Donahoe admitted that Michael was safely carrying the rifle, with the muzzle pointed in a safe direction, and that he even had a backpack on top of the rifle. And then there’s the fact that the Second Amendment has absolutely nothing to do with hunting…. But unfortunately, the SCOTUS hasn’t recognized a Second Amendment right outside of one’s home, as of yet.

The ruling which came down today:

The video, in case you missed it:

 

Can a police officer handcuff a 6 year old child?

You may have seen this video footage going around the internet.  There was a 2018 Fourth Circuit (WV, VA, NC, SC, MD) case finding the handcuffing of a 10 year old boy, who was compliant, unconstitutional.

So what about a 6 year old who was allegedly non-compliant?

In E.W. v. Dolgos, 884 F.3d 172 (4th Cir. 2018), the Fourth Circuit looked at a claim of excessive force by an officer, against a student. Excessive force questions generally also fall under the Fourth Amendment, except in cases of pretrial detainees (arrestees) and prisoners. In E.W., a ten year old was questioned in school by a police officer, about a fight on the bus with other students, which had occurred three days earlier. The officer viewed the footage, and then had a closed door meeting with the child and two school administrators. During the meeting, the police officer handcuffed the 4’4”, 95 pound child, supposedly for his own safety, and that of the other administrators. The officer himself was 5’5” and 155 pounds. After being handcuffed for about 2 minutes, the child cried and apologized. Subsequently the child’s family filed suit.

(ETA: My video:)

The Court then went through the usual excessive force analysis, which are commonly known as the “Graham Factors.” These are the same factors which are analyzed in every Fourth Amendment excessive force case involving people who are not pretrial detainees. So basically, anyone on the street, or who is “being” arrested. At some point following an arrest, an arrestee becomes a “pretrial detainee,” in which case the analysis changes somewhat. 

There are  three factors to the “Graham Factors”:

1. “the severity of the crime at issue;

2. whether the suspect poses an immediate threat to the safety of the officers or others, 

3. and whether he is actively resisting arrest or attempting to evade arrest by flight.” 

Graham, 490 U.S. at 396, 109 S.Ct. 1865. 

But these factors are not “exclusive,” and we may identify other “objective circumstances potentially relevant to a determination of excessive force.” Kingsley v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466 2473, 192 L.Ed.2d 416 (2015). Here, we believe it prudent to consider also the suspect’s age and the school context. The ultimate “question [is] whether the totality of the circumstances justified a particular sort of … seizure.” Jones , 325 F.3d at 527–28.

In E.W., the Court wasn’t happy with the decision to handcuff a compliant 10 year old:

In Brown v. Gilmore , we stated that “a standard procedure such as handcuffing would rarely constitute excessive force where the officers were justified … in effecting the underlying arrest.” 278 F.3d 362, 369 (4th Cir. 2002). There, the plaintiff brought an excessive force claim based on allegations that a police officer had handcuffed her, causing her wrists to swell, dragged her to the police cruiser, and then pulled her into the vehicle. Id. at 365–66, 369. We found that the circumstances justified the “minimal level of force applied” because, as the officer approached a crowded scene on the street, he attempted to arrest the plaintiff for failure to follow another officer’s orders to move her car. Id. at 369. We stated that it was not “unreasonable for the officers to believe that a suspect who had already disobeyed one direct order would balk at being arrested. Handcuffing [the plaintiff] and escorting her to a police vehicle was thus reasonable under the circumstances.” Id. 

….

The circumstances in this case are markedly different from those in Brown . We are not considering the typical arrest of an adult (or even a teenager) or the arrest of an uncooperative person engaged in or believed to be engaged in criminal activity. Rather, we have a calm, compliant ten-year-old being handcuffed on school grounds because she hit another student during a fight several days prior. These considerations, evaluated under the Graham framework, demonstrate that Dolgos’s decision to handcuff E.W. was unreasonable.

E.W. v. Dolgos, 884 F.3d 172, 180 (4th Cir. 2018).

The Court supported its conclusion by pointing to other courts around the country, who have recognized that youth is an important consideration when deciding to use handcuffs during an arrest. 

The Ninth Circuit, applying the Graham factors, held that officers who handcuffed an eleven-year-old child used excessive force. Tekle v. United States , 511 F.3d 839, 846 (9th Cir. 2007) (“He was cooperative and unarmed and, most importantly, he was eleven years old.”); see also Ikerd v. Blair , 101 F.3d 430, 435 (5th Cir. 1996) (holding that officer used excessive force against ten-year-old girl under Graham analysis). In addition, the Eleventh Circuit has held that “handcuffing was excessively intrusive given [the arrestee’s] young age.” Gray ex rel. Alexander v. Bostic , 458 F.3d 1295, 1300–01, 1306 (11th Cir. 2006) (denying qualified immunity to SRO who handcuffed nine-year-old student for five minutes). Several district courts have similarly held that young age is a “uniquely” or “highly relevant” consideration under Graham . See Kenton II , 2017 WL 4545231, at *9 (holding that handcuffing eight-year-old child violated constitution); Hoskins v. Cumberland Cty. Bd. of Educ., No. 13-15, 2014 WL 7238621, at *7, 11 (M.D. Tenn. Dec. 17, 2014) (noting that eight-year-old student “was a startlingly young child to be handcuffed”); see also James v. Frederick Cty. Pub. Sch., 441 F.Supp.2d 755, 757, 759 (D. Md. 2006) (concluding that handcuffing eight-year-old child suggested excessive force). Here, E.W. was only ten years old at the time of the arrest. She therefore falls squarely within the tender age range for which the use of handcuffs is excessive absent exceptional circumstances.

 E.W. v. Dolgos, 884 F.3d 172 , 182 (4th Cir. 2018).

Even though the Fourth Circuit found an excessive force civil rights violation under the facts presented in E.W. v. Dolgos, given that none of the lawyers or judges involved found prior legal precedent sufficiently similar to the conduct involved, the Court granted qualified immunity to the police officer, but warned that “our excessive force holding is clearly established for any future qualified immunity cases involving similar circumstances. Id., 884 F.3d at 187. 

What that means, is that all police officers in the Fourth Circuit are now “on notice” that if they handcuff a small child without reasonable cause, they will not be granted immunity from civil damages. This handcuffing, however, occurred in Florida, and not in the Fourth Circuit.  Florida is a member of the Eleventh Circuit, based out of Atlanta. One of the cases cited by the Fourth Circuit in E.W. was an Eleventh Circuit case: Gray ex rel. Alexander v. Bostic , 458 F.3d 1295, 1300–01, 1306 (11th Cir. 2006) (denying qualified immunity to SRO who handcuffed nine-year-old student for five minutes).

Somebody involved in that situation probably ought to go read that case now . . . .

Putnam County W. Va. Search Video Update No. 2

Here’s a quick update video I did for Youtube on the Dustin Elswick case – the case where the drug task force was caught on video searching his house by hidden cameras.

Another Update on the Walker Case: More New Evidence and fighting over its use

Just filed today, our attempt at supplementing our motion for summary judgment with a newly-obtained “CAD” report from the Putnam County 911 center. Originally we were able to obtain a screenshot of the video which had originally been broadcasted on Facebook Live.  As soon as we received that, we sent a FOIA to Putnam County 911 citing the exact time, date and location, and they indeed had a record of the call.

So, looking at the actual CAD sheet, we were able to determine that the original 911 call only referenced a “man with a rifle,” – not a man with an “assault rifle,” as was the testimony. And more importantly, the time was conclusively established as around 6:00 p.m., and not in the “morning,” while “school was in session.” Here was the sworn testimony:

Q. Do you remember what the substance of the dispatch call was?

A. Basically, there was a guy walking down the road with an assault rifle.

But here’s the actual record:

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Another interesting thing…. Obviously in the video, the deputy accuses Michael of being a so-called “sovereign citizen.” I asked the deputy as follows during his deposition, which is of course, under oath:

Q. You con’t know who issued that report [the 2/23/18 BOLO characterizing plaintiff as a sovereign citizen] or who prepared that report?

A. I have no idea.

Q. And you don’t know how they came to get the information that Mr. Walker allegedly has sovereign citizen behavior?

A. I have no idea.

Q. That didn’t come from you?

A. No, sir.

Q. Did you tell anyone that Michael Walker was a sovereign citizen?

A. No, sir.

But here’s page 3 of the CAD sheet record from this encounter:

Screen Shot 2020-02-12 at 4.44.33 PM.png

As you can see, apparently the officer radioed dispatch at the conclusion of the encounter that they would probably receive more calls on a “sovereign citizen” carrying a gun. It’s odd that they didn’t already have this document before now, in which case they would have been required to provide it to us.

It’s still not a basis for reasonable suspicion under the holding of U.S. v. Black, for someone to open carry within a mile of a school, but it shows the supposed claim of Michael being a suspected school shooter as an after-thought legal strategy. As I indicated in my questioning about the “sovereign citizen” stuff during the deposition, on 2/23/18 – two days following this encounter, Putnam County Sheriff’s Office issued a “BOLO” to other police officers accusing Michael of being a “sovereign citizen” and being armed and dangerous. Following a BOLO such as this, officers would at that point have reasonable suspicion to go ahead and disarm him and search him during any interaction under Terry v. Ohio.