Qualified Immunity: The Ultimate Product of Judicial Activism

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Congress will soon take up multiple bills to pull back the doctrine of Qualified Immunity. In the House, a bill has been introduced that would roll back Qualified Immunity as it relates to law enforcement and corrections officers. In the Senate, a bill is pending that would roll back qualified immunity as applied to an even broader class of government workers. In either event, the rollback of qualified immunity is an important step for increased government accountability. In this brief post, I will discuss what qualified immunity is and how it came about. Then I will briefly make the case that qualified immunity should be rolled back significantly if not entirely.

A Brief History of QI

Qualified immunity is a recent innovation in the law and is entirely a creature of case law. The right to sue government officials for the violation of constitutional rights originated in the passage of a ku klux klan bill of 1871. The relevant language is codified in 42 USC § 1983, which provides a private cause of action for those whose rights are violated by a government official. The law existed for nearly 100 years before the doctrine of qualified immunity emerged by case law, in Pierson v. Ray (1967). Pierson established that certain government officials enjoy a measure of protection from suit. Specifically,“under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.” The next and most significant step toward qualified immunity came in 1982 in Harlow v. Fitzgerald. In Harlow, the Court held that “Henceforth, government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.”

Where Things Stand

After Harlow, it has become exceedingly difficult for a plaintiff to prevail in a civil rights action. An officer who knowingly violates someone’s constitutional rights will generally be protected from suit unless the victim can identify previous judicial opinions that addressed the specific context and conduct. And that case must fit the exact contexts and action down to a high degree of specificity. There is a degree of circularity at play in this doctrine. How does the law ever change if a plaintiff must show a previously-exact case in order to pierce qualified immunity?

In a ninth circuit case, for instance, police attempted to steal $225,000 after a raid. The officers were protected by qualified immunity because “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.” Even if stealing is wrong, no law held that stealing money violated a constitutional right. And the officers were shielded from liability.

Why QI Should be Rolled Back

Justice Clarence Thomas appears to favor a rollback of qualified immunity to Pierson. And here is why it is important to turn the clock back to where it stood before Harlow. Criminal prosecution is not a good instrument for law enforcement reform. It is a huge ask to demand prosecutors to prosecute the officers who prepare their cases. And juries have been reluctant to indict, much less convict, law enforcement officers. To be sure, the standard for conviction beyond a reasonable doubt is difficult to prove. However, the preponderance standard for a civil rights violation is easier to meet and likely less of an ask for jurors. Furthermore, the civil standard creates a financial incentive for lawyers to bring suit before jurors whose jobs do not depend on shielding law enforcement. States and municipalities will bear a financial incentive to safeguard civil rights, as insurance premiums will depend upon hiring, retaining, disciplining, and training offices to protect the civil rights of those with whom they come in contact.

Bills currently pending in Congress are a good move toward a regime that will reduce police mistreatment and brutality. Increased public

Bravo to the Fulton County, Georgia, Appellate Division!

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Recently, the Supreme Court issued a new opinion. It was not a particularly earth-shattering opinion. There is a statute that allows the trial judge to as as the thirteenth juror if he believes that the verdict was against the weight of the evidence. The appellate courts will affirm such decisions unless the judge abused his considerable discretion. However, some prosecutors are frustrated with the law as it applies to the thirteenth juror. After a recent set of opinions on thirteenth-juror appeals, the Supreme Court encourage prosecutors to stop bringing them. The additional wrinkle in the recent decision is that, in addition to neglecting the standard of review, the State argued the laws of the universe cried out for the reversal of a thirteenth-juror decision. The Court called the argument bizarre. So, the entire appellate division of the Fulton County District Attorney’s Office had T-shirts made that say “bizarre for justice” and posed for a group photo with their new fashion. The elected district attorney posed in the shot with them. And they posted it all on social media, with a caption thanking the Supreme Court of Georgia for noticing how bizarre they are.

Some members of the defense bar have called them out. However, my learned opponents will find no criticism here. I celebrate any opponent’s commitment to make bizarre arguments. And I also welcome public displays from opponents that have the potential to alienate the judge before which we might appear.

You can’t see it, but I just took a break from writing these words to give them a standing ovation.

It’s a Gray Day in Georgia for Motions to Modify Sentence

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There is an important new case that changes the law concerning motions to modify sentence in Georgia. In Gray v. State, a case published on August 26, 2019, the Court of Appeals held that trial courts lose jurisdiction, under O.C.G.A. Section 17-10-1(f), to modify criminal sentences following either 120 days after the remittitur where there was an appeal or one year after sentencing even if the motion to modify is filed sooner than those dates. I will provide some procedural history followed by analysis.

The defendant in Gray was sentenced by Judge A. He timely filed a motion to modify sentence, which was heard eleven months later by Judge B. Judge B granted the modification. Judge A, the original sentencing judge, found out what happened and, sua sponte, entered an order vacating the sentence.

Gray appealed, arguing that the order vacating was void. The Court affirmed, reasoning that the trial court lost jurisdiction to modify its sentence after the expiration of a year and after the end of the term of court in which the sentence was imposed. The Court ends the opinion pointing out nine cases allowing courts to modify sentence where the motions were filed within the statutory time and distinguishing (but not overruling) those cases.

Gray has petitioned to the Georgia Supreme Court for certiorari. The opinion in Gray raises a host of policy concerns. What exactly is the status of the line of cases “distinguished” in the opinion? Also, can a judge simply run out the clock by delaying a ruling on the case? What happens if the case is heard and the time runs out while it is under advisement? Finally, counsel will often advise clients to wait a while before filing motions to modify to let some time pass after sentencing, to allow for good conduct while in prison, for participation in programs, and other post-sentencing mitigation facts to develop. The law, as interpreted in Gray, places defendants in a position to file so soon that there is no opportunity to develop new mitigating evidence. Indeed, the modification statute has traditionally provided an incentive for good conduct after sentencing. Defendants who move to modify shortly after sentencing will be open to accusations of buyer’s remorse or the failure truly to accept responsibility.

This case presents excellent issues for certiorari and may prompt discussion at the Georgia legislature in the upcoming session.

Roundup and Update on a Recent Amicus Success

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I’ll write more on this case later, but I wanted to provide a quick update on a recent case. This week, the Supreme Court of Georgia held that the State cannot use against defendants in DUI trials evidence of their refusal to take a chemical test. While the United States Supreme Court has held otherwise, under Georgia’s constitution, which provides its citizens with additional protections not provided by the Federal Constitution.

Several months ago, the Georgia Supreme Court requested amicus briefs from the Georgia Prosescuting Attorney’s Counsel, the Office of the Solicitor-General, and the Georgia Association of Criminal Defense Lawyers. Those groups briefed the case well, and it was an honor to present argument on behalf of GACDL. Over my career, it has been my privilege to be amicus counsel on important cases before the Court. And this was was particularly satisfying.

Enough with the Allen Charges — Readable and Entertaining 11th Cir. Opinion

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I enjoy reading opinions by Eleventh Circuit Judge, Ed Carnes. And Brewster v. Hetzel may be my new favorite. It’s a rare habeas case out of Alabama (or anywhere) where the habeas petitioner wins. And the subject matter is a deadlocked jury and the lengths a trial court went to flip the holdouts for acquittal. Judge Carnes begins with a history lesson. At one time juries could be deprived of food and water until the holdouts caved. And when that didn’t work, judge had other tricks up their sleeves.

And if jurors did not unanimously agree on one before the judges left town, Blackstone recounted, “the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart.” Id. at *376. They were hauled around in the cart “until a judgment ‘bounced out.’” Renico v. Lett, 559 U.S. 766, 780, 130 S. Ct. 1855, 1866 (2010) (Stevens, J., dissenting). Which is to say until the resolve bounced out of the holdout jurors.

The opinion gives a few other examples of judicial coercion of hung juries of the past before shifting to the facts at hand. “We no longer try to coerce holdout jurors to reach a verdict they cannot abide. Or at least most times we don’t. The jury that convicted our appellant, Sumnar Brewster, might feel some affinity with the juries of yesteryear.” After giving the jury four separate Allen charges, the jury heard that the lone holdout for acquittal was doing a crossword puzzle rather than continue being browbeat by the other eleven. At which point, the judge ordered all pens and reading materials removed. from the room. “Just 18 minutes after all reading materials were removed, Brewster’s jury dutifully — and we do mean dutifully — returned a guilty verdict.” (Court’s emphasis).

The opinion is informative, readable, and fun. Judge Carnes stands out as one of the best legal writers around. And the opinion in Brewster v. Hetzel is a good model for legal writers to emulate.

A Quick Explanation of the Holding in the New SCOG DUI Case

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There has been much talk in the media about Olevik v. State. My algebra teacher long ago would make me “show my work” on tests and sometimes at the chalkboard. I’ve linked to the opinion where you can see where the Supreme Court has shown its work in 49 pages of legal writing.  But I’ll highlight a few key points.

The holding in Olevik is that the Georgia State Constitution’s protections against self-incrimination apply to acts of the accused that generate incriminating evidence as well as to statements made that are incriminating — and providing deep lung air is an incriminating act as defined by the Georgia Constitution. Under Article 1, Section 1, Paragraph VI of the Georgia Constitution, “no person shall be compelled to give testimony tending in any manner to be self-incriminating.” Note, the Georgia Supreme Court has not touched upon the Fifth Amendment of the United States Constitution. And the Georgia Supreme Court has overturned a line of cases going back to a case called Klink (aptly named).

The Court makes it clear that some acts are testimonial and are essentially the same as words when it comes to self-incrimination. Some examples from the case:

Self Incriminating Acts

  • Forcing a Defendant to put his feet on footprints located near a crime scene;
  • Requiring a Defendant to stand up at his trial so that the witness could verity that the defendant’s leg had been amputated in a way that corresponded to tracks left at a crime scene;
  • Forcing a driver to drive his truck onto scales to see if his rig is overweight.
  • Forcing a suspect to provide a handwriting sample.

Not Self-Incriminating Acts

  • Requiring the accused to be present so that law enforcement an undress him to remove bloodstained clothes;
  • Requiring the accused to stand in place to be photographed;
  • Requiring the accused to provide a DNA sample;
  • Taking an impression of the teeth of the accused;
  • Requiring the accused to undergo surgery for the removal of a bullet.

Blowing hard into a breath machine is a self-incriminating act because the defendant has to do some work to produce air from deep in his lungs to produce a sample. If you’ve ever taken one of these, either at a jail or at some booth at a beer festival where a DUI lawyer was a sponsor, you will know what I mean. If scientists ever perfect a technology that will allow police to extract fog from a mirror to test for blood alcohol, then future drunk drivers will be in big trouble. For now though, the method of extraction is an incriminating act.

What Does it All Mean?

It all means nothing to Mr. Olevik, who lost his appeal anyway. Future defendants, however, can testify at a motion to suppress hearing and say “when I heard what the police officer read that card, I felt like he was forcing me to give him a breath sample.” And, if the trier of fact finds that the statement is truthful, then the evidence of the breath test is inadmissible. However, if the police extract a blood sample, then there is no self-incriminating act. And if the finder of fact finds that a suspect voluntarily gave a breath sample, then there was no self-incriminating act. However, it is very likely that when a suspect refuses to provide a breath sample then the State will not be allowed to comment on such refusal at trial. A thornier question will be whether the State can comment upon the refusal to take a blood test.

And there, in a nutshell, is Olevik. By the way, this is not a Fifth Amendment case. It is only good in Georgia. Because it is an interpretation of the Georgia Constitution.

 

New 11th Circuit Interpretation of a Portion of the Sentencing Guidelines

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One of the hats I wear is that of the Federal opinions editor for a caselaw update that the Georgia Association of Criminal Defense Lawyers publishes monthly. It has been a slow month for Eleventh Circuit Opinions. But there is one that I will be writing up. And this blog post will pull double duty as a caselaw summary for that publication.

The case is United States v. Sheels, a January 31 published opinion. This case deals with whether it was proper to impose a four-point enhancement under 2G2.1(b)(4) of the Federal Sentencing Guidelines. The question turns on what is sadistic of masochistic conduct.

The Point:

For purposes of determining whether to impose a four-point enhancement for a conviction for sexual exploitation of a minor by production of sexually explicit material, it is proper to impose the enhancement even if the defendant is the recipient of sadistic or masochistic conduct was directed at him rather than from him.

The Facts:

Mr. Sheels was convicted of one count of producing and one count of receiving child pornography. He received a sentence of 600 months to serve. The sentencing added four points to his base level offense of 32 because the material contained the following as defined by 2G2.1 of the Federal Sentencing Guidelines:

If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels.

Mr. Sheels argued that the enhancement did not apply because he was the recipient of the argument. The Court affirmed, having determined that the depiction of such conduct, in any form, was sufficient to apply the enhancement.

The Reasoning:

The Court found that it was not necessary to look further than the plain language of the guidelines to answer the question. “Involved material that portrays,” applies to the conduct in any form. The Court then went to a dictionary definition of the word involve.

There were no cases directly on point. And Mr. Sheels relied on some dicta from other cases potentially to support his position:

He cites a number of cases, like United States v. Hall, 312 F.3d 1250, 1261 (11th Cir. 2002) (quotation marks omitted), which contain statements like: “[A] photograph is sadistic within the meaning of Section 2G2.2(b)(3)3 when it depicts the subjection of a young child to a sexual act that would have to be painful.” But those cases merely stand for the proposition that material depicting sadistic or masochistic conduct directed towards the child is sufficient to warrant the application of a § 2G2.1(b)(4) enhancement, not that it is necessary.

Ultimately, the Court held that even the object of sadistic or masochistic conduct is subject to the enhancement. To the extent that this point was unresolved by the language of the guidelines, it is resolved now.

 

Ninth Circuit Refuses to Lift Stay of Republican Administration’s Travel Ban

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Moments ago, the Ninth Circuit Court of Appeals ordered that the temporary restraining order imposed on the Republican presidential administration’s travel ban will remain in place. The Court has found that the states of Washington and Minnesota have standing to challenge the ban, that the Republican administration is unlikely to prevail on the merits in the lawsuit, and that the balance of hardship to the public interest also weighs in favor of the States over the ban.

Background

On January 27, 2017, the Republican administration issued an executive order suspending travel for 90 days from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The EO also suspended the United States Refugee Admission Program. And it suspended indefinitely the entry of all Syrian refugees.

Shortly thereafter, the State of Washington brought suit challenging the program on various Constitutional grounds including Due Process and violation of the First Amendment. Washington sought a temporary restraining order against enforcement of the executive order, which was granted, arguing in part that “the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a ‘Muslim ban’ as the President had stated during his presidential campaign that he would do.”

The Federal government immediately appealed to the Ninth Circuit for a stay of the TRO.

Standing

The Court found that the states have standing to bring the suit because they could show a “concrete and particularized injury” to their university system. Teacher, students, and researchers were stranded without the ability to enter the country. Their absence threatened essential state functions.

Reviewabiliy

The Federal government argued on behalf of the Republican administration that the order was unreviewable by any court because it touched upon national security. The Court made short shrift of what would be a fairly dangerous argument to our system of government. Presidential authority under Article II is seldom if ever beyond review by an Article III Court.

Factors

The Court applied a four-part test to the government’s appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

On Due Process grounds, the Court reasoned that the Republican administration was unlikely to prevail on the merits. Because the Executive Order summarily stopped all immigrants, including permanent residents, from entering the country with no due process and restricted travel outside the country (again) without due process, the Executive Order is likely to be found unconstitutional. And because the system completely suspends the asylum process for immigrants from certain countries, it is likely to be found violative of Due Process.

Secondly, the administration is unlikely to prevail on the First Amendment grounds. Here, the Court went beyond the four corners of the Executive Order to look to the Republican Chief Executive’s intent as expressed in public statements and on social media regarding a desire to ban Muslims from entering the country.

In terms of the balance of hardship and the public interest, the Court reasoned that the Federal government has pointed to “no evidence” that any alien from one of the named countries has ever engaged in terrorism in the United States. By contrast, the states have been able to point to injury from the restriction on travel from those effected by the ban.

Next Steps

The Republican Administration will likely petition for a rehearing en banc to seek a hearing before the entire Ninth Circuit. This order was issued by a three-judge panel. And the matter could ultimately go to the United States Supreme Court. However, two things are important. First, there are only 8 justices. In the event of a tie, the Ninth Circuit ruling will be upheld. And this order does not reach the merits of the case. Rather, there is merely a TRO until the merits are reached. So, there may be an uphill battle for the Federal government on a cert. petition.

Trump Administrative Order on Travel Likely to Withstand Legal Challenge

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Adam Liptak has a comprehensive article in today’s New York Times over nationwide appellate proceedings regarding President Trump’s Executive Order banning travel from several Middle Eastern nations. The article tracks the progress of an order from the United States District Court for the Western District of Washington staying enforcement of much of the Executive Order. The administration has appealed and that case is moving forward on an accelerated briefing schedule in the Ninth Circuit. On the East Coast, the United States District Court for the District of Massachusetts has refused to grant a stay of the Executive Order’s enforcement, reasoning that the immigrants are not likely to prevail on the merits.

The issue in the case is how to draw the line between executive power under Article II versus the First Amendment’s protection against the establishment of a religion. Article II vests in the president wide latitude in conducting foreign affairs and in regulating immigration into the country.

Issues to Consider

  • To what extent may we look beyond the text of the executive order? The text mentions nothing about banning immigrants on the basis of religion. Here’s the relevant text:

In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

  • The President has made some statements about a potential preference for Christians seeking to enter the United States to escape persecution. But I am unclear on the extent to which the courts are allowed to look to such statements versus the language of the order.
  • Even if the restriction is wholly or partially based in religion, is there a First-Amendment violation? May religion be a factor in immigration decisions? It’s a murkier question than it might appear on its face. May the government weigh a person’s religion as a factor in determining the extent to which the person poses a threat to safety? The question would turn on whether doing so “establishes” a religion. For instance, let’s imagine a hypothetical religion. Suppose there was a sect of people who believed that the true God countenanced no secular leaders and that it was the sacred duty of a follower of that religion to overthrow any secular governmental figures. In other words, the central religious tenets of our hypothetical religion included a duty to war against the idea of government. Would it be a violation of the First Amendment to bar adherents to that religion from entering the country? The answer would appear to be no.

If I were to place a bet on the outcome of this litigation, I would bet on the administration. Beyond the Constitution, Congress has vested the President with broad power over immigration. Adam Liptak writes:

A key part of immigration law does give the president broad power. It says, “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

But another part of the law forbids discrimination “because of the person’s race, sex, nationality, place of birth or place of residence,” but only “in the issuance of an immigrant visa.” The Trump administration argues that the power to bar entry, the subject of the first law, is broader than the limits on issuing visas.

I make no editorial comment upon the wisdom of the president’s immigration decisions. Rather, in terms of the law, he likely stands on a solid footing with respect to current legal challenges to the Order.

How Might Judge Gorsuch Decide Criminal Cases on the Supreme Court?

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At the start of this week, I penned a post critical of how President Trump handled the firing of Sally Yates. Today, I write to commend his nomination of Judge Gorsuch for the United States Supreme Court.

Textualists and the criminal appellate bar are natural allies. And such is the case with this pick. I want to discuss briefly one case here to give you a glimpse of how a Justice Gorsuch might approach criminal cases. And if you have about forty-five minutes, I cannot recommend enough the most recent edition of the First Mondays Podcast, where you will find an interview with a former Gorsuch clerk and a discussion of some of the judge’s more notable tenth-circuit opinions (I swear these guys aren’t paying me to promote them).

The case I want to highlight is United States v. Gamez Perez. In that case, Judge Gorsuch wrote a dissent to a petition for rehearing en banc. Here was the issue. Mr. Gamez Perez was convicted to possession of a firearm by a convicted felon. His defense was that he did not know that he was a convicted felon. He had good reason not to know his status as a felon. When he entered a plea to the underlying offense in the state system, the state-court judge told him that he was not a felon. He was later charged with possessing a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The opinion in the case was that the statute required only that a defendant know that he was in possession of a firearm. The court held that there was no mens rea element for the status of a convicted felon.

Judge Gorsuch dissented reasoning that the knowledge element should spread to include knowledge that a defendant is a convicted felon. He based his reasoning on a fairly established canon of statutory construction that mens rea language, if placed at the beginning of a sentence spread to all other substantive elements of the statute. And he based his opinion on basic rules of grammar and usage. Here are a couple of points that I like about Judge Gorsuch’s approach:

  • First, his writing style is excellent. I could hand this opinion to a non-lawyer friend and feel confident that she could follow it. But an appellate lawyer would see that the writing is professional and thorough. There is no higher praise for legal writing than that. If I am going to read a justice’s opinions for the next 30 years, I like knowing that it won’t give me  headaches.
  • He reads the text, researches the law, and lets those things guide him to the result. He does not envision a result then bend the law to get there. This approach may be bad for the criminal defendant in specific instances. But it will always be fair to the criminal defendant and to the prosecution. I find the approach to be sadly rare. The criminal defense bar endures no end of judicial linguistic gymnastics so that law enforcement can “get the bad guy.” Just today, I was speaking to a potential client about the standard for getting something done in a post-conviction matter. And in the first half of my explanation I explained the standard under the law. In the second half, I explained how the just would really decide the case. It is nice when the relevant statute is the guide to how the case will be decided.
  • He seems to care about the defendant’s plight. While he is not bending the law to get to a result, he seems genuinely troubled that the state-level judge told the defendant that he was not a felon, and the defendant relied upon those re-assurances to his extreme detriment.
  • He is suspicious of arguments about legislative history where the statute is clear on its face. Whenever I have a solid argument on the law and a judge’s opinion starts getting into legislative history, I know that I am about to call a client to relay bad news.

In my career, I have never minded judges who sentence harshly. I have never minded judges who run their calendars in a controlling way. Sentencing and calendar management are what judges do. I have always disliked dealing with judges with an agenda that spills into how they rule. Prosecutors Apologists refer to this as “folksy wisdom,” “common sense,” or say “he always seems to get to the right place.” A judge who looks at the law, applies it to the facts, and works hard to be fair is about as much as you an ask for in a judge. And based upon this case and others I have read out of the Tench Circuit, Judge Gorsuch looks like a solid pick.

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