[Lnc-business] Interesting development concerning qualified immunity

Wed Apr 29 13:57:59 EDT 2020

Thanks for this. Perhaps, something to look forward to....?

On Wed, Apr 29, 2020 at 12:41 PM james.lark--- via Lnc-business <
lnc-business at hq.lp.org> wrote:

> Dear colleagues:
>
>
>
> I hope all is well with you.  As some of you may know, for several years I
> have been very keen to see Libertarians (including LP candidates) draw
> attention to the legal doctrine of qualified immunity.
>
>
>
> Yesterday Jay Schweikert wrote an article for Cato at Liberty titled
> “Supreme Court Will Soon Decide Whether to Reconsider Qualified Immunity.”
> The article is available at
> https://www.cato.org/blog/may-15th-supreme-court-will-finally-decide-whether-hear-cases-calling-abolition-qualified?utm_source=feedotorg
> <
> https://www.cato.org/blog/may-15th-supreme-court-will-finally-decide-whether-hear-cases-calling-abolition-qualified?utm_source=feedotorg&utm_medium=email&utm_campaign=fee_partners>
> &utm_medium=email&utm_campaign=fee_partners; I have enclosed it below for
> your convenience.
>
>
>
> As always, thanks for your work for liberty.  I hope you find the article
> worthy of your attention.
>
>
>
> Take care,
>
> Jim
>
>
>
> James W. Lark, III
>
> Professor, Dept. of Engineering Systems and Environment
>
> Professor, Applied Mathematics Program, Dept. of Engineering and Society
>
> Affiliated Faculty, Dept. of Statistics
>
> University of Virginia
>
>
>
> Advisor, The Liberty Coalition
>
> University of Virginia
>
>
>
> Region 5 Representative, Libertarian National Committee
>
> -----
>
>
>
>
> https://www.cato.org/blog/may-15th-supreme-court-will-finally-decide-whether-hear-cases-calling-abolition-qualified?utm_source=feedotorg
> <
> https://www.cato.org/blog/may-15th-supreme-court-will-finally-decide-whether-hear-cases-calling-abolition-qualified?utm_source=feedotorg&utm_medium=email&utm_campaign=fee_partners>
> &utm_medium=email&utm_campaign=fee_partners
>
>
>
> April 28, 2020 4:26PM
>
>
> Supreme Court Will Soon Decide Whether To Reconsider Qualified Immunity
>
>
> By Jay Schweikert <https://www.cato.org/people/jay-schweikert>
>
> For the last several years, Cato has been leading the campaign to abolish
> qualified immunity <
> https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/>
> , an atextual, ahistorical judicial doctrine that shields state officials
> from liability, even when they violate people's constitutional rights. The
> most immediate practical goal of this campaign has been to convince the
> Supreme Court to hear one of the many cases calling for qualified immunity
> to be either narrowed or reconsidered outright. And over the last seven
> months, I've written several <
> https://www.cato.org/blog/supreme-court-may-be-preparing-consider-several-major-cases-qualified-immunity>
> times <
> https://www.cato.org/blog/supreme-court-considers-several-qualified-immunity-cases-new-ally-joins-fight>
> about how the Court has indicated that it's preparing to consider several
> qualified immunity cases, given the manner in which it has repeatedly
> rescheduled several cert petitions that have been fully briefed and ready
> for resolution since October of last year. My hypothesis at the time was
> that the Supreme Court was delaying resolution of these petitions so that
> it could consider them along with several other high-profile cases that
> also raised the same underlying question of whether qualified immunity
> should be reconsidered.
>
> Now it would seem that prediction has been vindicated. Just today, the
> Supreme Court distributed eight different qualified immunity cert petitions
> for its conference of May 15, 2020. This is obviously no coincidence, and
> it means that by the morning of Monday, May 18th, we will finally know
> whether the Justices are prepared to confront one of the most pernicious
> and legally baseless doctrines in the history of the Court.
>
> Here's the complete list of the eight different petitions that have been
> distributed for the May 15th conference. In nearly all of these cases, Cato
> filed an amicus brief in support of the petition, and in many of them, we
> either helped coordinate or took the lead on a "cross-ideological brief,"
> on behalf of a diverse alliance of organizations opposed to qualified
> immunity.
>
> *       Baxter v. Bracey <
> https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1287.html>
> . In this case, Sixth Circuit <
> https://www.opn.ca6.uscourts.gov/opinions.pdf/18a0566n-06.pdf>  granted
> qualified immunity to two officers who deployed a police dog against a
> suspect who had already surrendered and was sitting on the ground with his
> hands up. The ACLU filed a cert petition <
> https://www.supremecourt.gov/DocketPDF/18/18-1287/95661/20190408145246695_Baxter%20v%20Bracey%20Petition%20for%20Writ%20of%20Certiorary.pdf>
> back in April 2019, asking whether “the judge‐made doctrine of qualified
> immunity” should “be narrowed or abolished.” Cato filed a brief <
> https://www.supremecourt.gov/DocketPDF/18/18-1287/101473/20190530161957223_Baxter%20v.%20Bracey%20Cato%20amicus%20brief.pdf>
> in support of the petition, and we also helped to coordinate the filing of
> a cross‐ideological brief <
> https://www.supremecourt.gov/DocketPDF/18/18-1287/101646/20190531162059735_FINAL%20Crossideological%20Brief%20Baxter%205.31.2019.pdf>
> . This case was originally set to be considered all the way back on October
> 1, 2019, but it has been rescheduled five times since then. Now, it looks
> like the Court is finally prepared to resolve Mr. Baxter's petition.
>
> *        <
> https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-913.html>
> Brennan v. Dawson. In this case, the Sixth Circuit <
> https://www.opn.ca6.uscourts.gov/opinions.pdf/18a0508n-06.pdf>  granted
> immunity to a police officer who, in an attempt to administer an alcohol
> breath test to a man on misdemeanor probation, parked his car in front of
> the man’s home at 8:00pm; turned the lights and sirens on for over an hour;
> circled the man’s house five to ten times, peering into and knocking on
> windows; and wrapped the home’s security camera in police tape. The court
> held that this warrantless invasion of the curtilage violated the Fourth
> Amendment, but nevertheless granted immunity due to a lack of “clearly
> established law.” The cert petition <
> https://www.supremecourt.gov/DocketPDF/18/18-913/80215/20190111120052778_Filed%20Petition.pdf>
> in this case was filed on January 11, 2019, and asks the Court to “reign in
> the qualified immunity standard to . . . reflect the common‐law roots of
> qualified immunity.”
>
> *        <
> https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-676.html>
> Zadeh v. Robinson and  <
> https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-679.html>
> Corbitt v. Vickers. Zadeh is the case where the Fifth Circuit <
> http://www.ca5.uscourts.gov/opinions/pub/17/17-50518-CV1.pdf>  granted
> immunity to state investigators that entered a doctor’s office and, without
> notice and without a warrant, demanded to rifle through the medical records
> of 16 patients. And Corbitt is the case where the Eleventh Circuit <
> http://media.ca11.uscourts.gov/opinions/pub/files/201715566.pdf>  granted
> immunity to a deputy sheriff who shot a ten‐year‐old child lying on the
> ground, while repeatedly attempting to shoot a pet dog that wasn’t posing
> any threat. The plaintiffs in both cases are now represented by Paul
> Hughes, who filed cert <
> https://www.supremecourt.gov/DocketPDF/19/19-676/123464/20191122163707356_Zadeh.cert.pet.pdf>
> petitions <
> https://www.supremecourt.gov/DocketPDF/19/19-679/123466/20191122164334779_Corbitt.cert.pet.pdf>
> on November 22, 2019, each of which asks “[w]hether the Court should
> recalibrate or reverse the doctrine of qualified immunity.” Cato submitted
> briefs in both <
> https://www.supremecourt.gov/DocketPDF/19/19-676/126407/20191220141759139_Zadeh%20v.%20Robinson%20crossideological%20brief.pdf>
> cases <
> https://www.supremecourt.gov/DocketPDF/19/19-679/126410/20191220142234327_Corbitt%20v.%20Vickers%20crossideological%20brief.pdf>
> , this time taking the lead on the cross‐ideological brief, whose
> signatories also included the Alliance Defending Freedom, the American
> Association for Justice, the ACLU, Americans for Prosperity, the Due
> Process Institute, the Law Enforcement Action Partnership, the MacArthur
> Justice Center, the NAACP, Public Justice, R Street, and the Second
> Amendment Foundation.
>
> *       Kelsay v. Ernst <
> https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-682.html>
> . This is the case where the Eighth Circuit <
> https://cases.justia.com/federal/appellate-courts/ca8/17-2181/17-2181-2019-08-13.pdf?ts=1565710223>
> , in an 8–4 en banc decision, granted immunity to a police officer who
> grabbed a small woman in a bear hug and slammed her to ground, breaking her
> collarbone and knocking her unconscious, all because she walked away from
> him after he told her to “get back here.” The MacArthur Justice Center
> filed a cert petition <
> https://www.supremecourt.gov/DocketPDF/19/19-682/123715/20191126132451862_19-__%20PetitionForAWritOfCertiorari.pdf>
> on November 26, 2019. While the petition doesn’t ask the Court to
> reconsider qualified immunity outright, it does ask the Court to “take
> steps within the confines of current law to rein in the most extreme
> departures from the original meaning of Section 1983.” Cato filed a brief <
> https://www.supremecourt.gov/DocketPDF/19/19-682/126531/20191223123129162_Kelsay%20v.%20Ernst%20Cato%20amicus%20brief.pdf>
> in support of this petition as well.
>
> *       West v. Winfield <
> https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-899.html>
> . In this case, the Ninth Circuit <
> http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/25/18-35300.pdf>
> granted immunity to police officers who bombarded an innocent woman's home
> with tear-gas grenades. The homeowner had given the officers permission to
> enter her home to look for a suspect, but never consented to anything like
> the practical destruction of her home that resulted. Nevertheless, the
> court granted immunity on the grounds that no prior case specifically
> established that this sort of bombardment exceeded the scope of consent
> that the homeowner had given. On January 16, 2020, the Institute for
> Justice filed a cert petition <
> https://www.supremecourt.gov/DocketPDF/19/19-899/128836/20200116111103542_West_CertPetition.pdf>
> asking the Court to clarify and limit the scope of qualified immunity, and
> Cato filed a brief <
> https://www.supremecourt.gov/DocketPDF/19/19-899/133720/20200220163458558_West%20v.%20Winfield%20Cato%20amicus%20brief.pdf>
> in support of this petition.
>
> *        <
> https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public\19-1021.html>
> Jessop v. City of Fresno. In this case, the Ninth Circuit <
> https://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/17-16756.pdf>
> granted immunity to police officers who stole over $225,000 in cash and
> rare coins in the course of executing a search warrant. The court noted
> that noted that while “the theft [of] personal property by police officers
> sworn to uphold the law” may be “morally wrong,” the officers could not be
> sued for the theft because the Ninth Circuit had never issued a decision
> specifically involving the question of “whether the theft of property
> covered by the terms of a search warrant, and seized pursuant to that
> warrant, violates the Fourth Amendment.” Neal Katyal filed a cert petition <
> https://www.supremecourt.gov/DocketPDF/19/19-1021/133072/20200214133249205_19-__%20Jessop%20Petition%202.14.2020%20Final.pdf>
> on behalf of Mr. Jessop on February 14, 2020, and Cato, joined by Americans
> for Prosperity, filed a brief <
> https://www.supremecourt.gov/DocketPDF/19/19-1021/137554/20200309165122684_Jessop%20v.%20City%20of%20Fresno%20Cato%20AFPF%20motion%20and%20brief.pdf>
> in support of the petition.
>
> *        <
> https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-753.html>
> Hunter v. Cole. Of all the qualified immunity cases going to conference on
> May 15th, this is the only one in which the lower court denied immunity to
> the defendants. In this case, the Fifth Circuit <
> http://www.ca5.uscourts.gov/opinions/pub/14/14-10228-CV3.pdf>  denied
> immunity to an officer who shot a 17-year-old boy without warning. Although
> the boy was holding a gun, he had made no threatening gestures toward the
> officers and was facing away from them and unaware of their presence when
> he was shot. At the en banc stage, this case generated a lively discussion
> between several Fifth Circuit judges about whether qualified immunity
> should be reconsidered, which I discussed here <
> https://www.cato.org/blog/dissenters-fifth-circuit-qualified-immunity-case-misunderstand-relationship-between-originalism>
> . On December 9, 2019, the officer filed a cert petition <
> https://www.supremecourt.gov/DocketPDF/19/19-753/124977/20191209164457662_Brief%20and%20Appendix.pdf>
> , asking the Court to hold that his shooting of the teenage boy not violate
> clearly established law.
>
> The fact that the Court sent all eight of these cases to conference on the
> same day -- especially after repeatedly rescheduling many of them -- is
> unmistakable evidence that the Justices are looking closely at the
> fundamental question of whether qualified immunity itself needs to be
> reconsidered. This is a question that Justice Thomas <
> https://www.supremecourt.gov/opinions/16pdf/15-1358_6khn.pdf>  urged the
> Court to take up all the way back in 2017, and which Cato has been
> vigorously pushing since it launched its qualified campaign <
> https://www.cato.org/multimedia/events/qualified-immunity-supreme-courts-unlawful-assault-civil-rights-police>
> back in March of 2018. It is far past time for the Supreme Court to
> reconsider qualified immunity, and in less than three weeks, we'll finally
> know whether the Court is prepared to take up that question.
>
>
>
>

-- 
*Whitney Bilyeu*
Libertarian National Committee
Region 7 Representative
281.433.4966
LP.ORG