Orin Kerr flags this Third Circuit decision holding that a Fourth Amendment right was not clearly established where a binding circuit decision was handed down two days before the events at issue. That was too short a time for the government to read and understand the case, develop new policies to reflect that case, and communicate those policies to the officer. Kerr ponders some interesting questions arising from the case about determining how long it takes for a right to become clearly established and what the government and/or the officer must do to learn the law.
It seems to me this exposes two problems in qualified-immunity law. One is the essentially fictitious nature of tying qualified immunity to factually similar case law–law-enforcement officers do not read or follow case law and they do not perform their daily functions thinking about how the instant situation compares or contrasts with a situation in other cases. Talking about “the law of which the officer would be aware” in terms of case law does not reflect how law enforcement operates.
Second is how the Third Circuit’s focus on policymakers establishing policy to reflect the new decision and communicating that policy to the officers. This appears to collapse into municipal-liability analysis (in a case involving a municipality, as opposed to the federal or state governments, such as this one)–government policy and government training of officers is necessary to clearly establish, both hallmarks of municipal liability. So does this suggest that a right is clearly established only if a municipality would be liable for having policies contrary to law or for failing to train on those policies?
Posted by Howard Wasserman on January 22, 2019 at 11:18 AM
Comments
Here by the way,a fresh case,where one police officer,has been denied qualified immunity,here:
Posted by: El roam | Jan 23, 2019 7:36:06 PM
Just to be clear, I think officers do know the law in the sense of general principles. The “fiction” I was describing was the idea that they knew the law at the granular level of the case- and fact-specific distinctions built into the Court’s demand for a factually similar case. I think this is why John Jeffries has argued for shifting the inquiry from “clearly established” to “clearly unconstitutional,” a concept that would be less reliant on specific facts and precedents and more on general principles.
Posted by: Howard Wasserman | Jan 23, 2019 5:59:01 AM
Just the term mentioned:”Vicarious liability” is explained so( Legal dictionary,see link)here:
Vicarious liability refers to liability for the negligent or criminal acts of another person that is assigned to someone by law. Vicarious liability exists when liability is attributed to a person who has control over or responsibility for another who negligently causes an injury or otherwise would be liable. Whenever an agency relationship exists, the principal is responsible for the agent’s actions.
For example, an employer of an employee who injures someone through negligence while in the scope of employment is vicariously liable for damages to the injured person. In contrast, a defendant who engages an independent contractor is not liable to others for the acts or omissions of the independent contractor. An independent contractor is a person who performs services for another person under an express or implied agreement and who is not subject to the other’s control, or right to control, over the manner and means of performing the services.
https://definitions.uslegal.com/v/vicarious-liability/
Thanks
Posted by: El roam | Jan 23, 2019 5:45:43 AM
Howard writes: “One is the essentially fictitious nature of tying qualified immunity to factually similar case law–law-enforcement officers do not read or follow case law and they do not perform their daily functions thinking about how the instant situation compares or contrasts with a situation in other cases. “
With the caveat that I’m not a fan of existing qualified immunity doctrine, let me offer at least a partial defense of it. I have taken the idea to be that, whether or not officers do this, they can be held liable if they don’t. That is, officers *should* know about the clearly established law. If they don’t know about the clearly established law, then they are at fault for not knowing about it and can be held personally liable for violating it. This encourages officers to know the law and yet recognizes that officers aren’t as culpable if they violate rules handed down ex post or that weren’t clear at the time.
Posted by: Orin Kerr | Jan 23, 2019 1:01:17 AM
Interesting, but knowing the law, is not the issue. For the issue, is the precedent, the rulings, means, how to imply in a given circumstances the law, for this is the law effectively . The fourth amendment for example, dictates nothing in particular concerning borders ( or searches therein )but, here I quote the circuit in the current case :
We ” have long held that routine searches at our nation’s borders are presumed to be reasonable under the fourth amendment ” Indeed routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause or warrant….”
End of quotation :
While under the fourth amendment, per se, it would be then considered as unreasonable search of course. But, it is silent concerning borders as exemption.It is up to the courts not once ( if legislator has missed the issue ).
But the issue here, is that, the claim has been made, against the police officers conducting the search, not their superiors. But, it is up to the superiors to train and acknowledge lower ranks officers in the field, for such new ruling ( not withstanding the time interval). As well the US under FTCA claim, for, it wasn’t discretionary function. Implying the law ( or precedent, it is the same effectively ) is not discretionary issue.
So, Superior officers, could be held liable for vicarious liability it seems ( again, notwithstanding time interval, in an era of Internet, one may wonder, how sending mails would take more then several minutes maximum ).
Thank
Posted by: El roam | Jan 22, 2019 1:53:13 PM
Let’s say a police officer arrested a black student for entering a white school, that the officer worked at, the morning after Brown v. Board.
How soon after the decision should the police officer be aware of the new law? Or does the police officer never get told about case law?
Posted by: Eisen’s hour | Jan 22, 2019 11:25:00 AM