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Monday, May 18, 2015

Justice Scalia was not pleased

Justice Scalia was not pleased with Monday's decision or with the petitioners in San Francisco v. Sheehan. The Court dismissed certiorari as improvidently granted on one question, involving application of a provision of the Americans with Disabilities Act to police affecting arrests, because petitioners ended up not briefing or pursuing that issue. The court then resolved the other question, holding that officers were entitled to qualified immunity for an incident in which officers entered the room of a mentally ill woman and shot her when she charged at them with a knife.

While agreeing with the decision to DIG the first issue, Scalia, joined by Justice Kagan, argued that the Court also should have dismissed the second question as improvidently granted, because the Court never would have granted cert on a fact-bound qualified immunity issue standing alone. Scalia argued that while non-independently certworthy issues often are decided alongside connected certworthy issues, where the certworthy issues is dismissed, the Court should not decide the otherwise unworthy subsidiary issue. And he placed the blame squarely on the city and county; he threw around terms such as "induce," "bait-and-switch tactics," and "reward[ing]" petitioners by giving them "all they seek" to describe what San Francisco did and what the Court was allowing it to do. Scalia worried that future litigants will be encouraged to "seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court's docket, we will consider whatever workaday arguments they choose to present."

Otherwise, Justice Alito's opinion for six justices (Justice Breyer recused) was a straightforward restatement and application of the emerging modern law of qualified immunity, in all its unfortunate development. The Court again questioned, without deciding, whether binding circuit precedent or a "robust consensus of cases of persuasive authority" could clearly establish a right. And it showed how precedent-bound the analysis has become, with clearly established being all about how factually analogous or distinguishable prior cases are. At one point, the Court spoke of reasonable officers "carefully read[ing]" precedents and what officers could know from that precedent--giving voice to the fiction that police officers actually read case law and are put on notice and guided by the factual specifics of prior cases compared with the situation they currently face.

Posted by Howard Wasserman on May 18, 2015 at 05:51 PM in Civil Procedure, Criminal Law, Howard Wasserman, Law and Politics | Permalink


Doesn't Justice Alito's "vision" stressed by Howard stress the subjectivity of the officer's understanding of "nuances" of case law? Would that be adduced via the officer's testimony at trial?

Posted by: Shag from Brookline | May 20, 2015 7:51:02 AM

I know quite well that departments have dedicated legal trainers--some of them are my former students. But that is not what Justice Alito was talking about. He put forward a vision of qualified immunity in which individual officers on the ground read and understand the, in your words, "nuances of each opinion and the body of case law as a whole" and are entitled to immunity unless those nuances notify them that what they are doing is unconstitutional. And in which small distinctions in prior cases means a right is not clearly established, distinctions that these officers do grasp.

Posted by: Howard Wasserman | May 19, 2015 11:49:01 PM

As a police officer and police legal trainer, I take umbrage with the author's assertion that there exists a "fiction that police officers actually read case law and are put on notice and guided by the factual specifics of prior cases compared with the situation they currently face." Quite the contrary, many police officers read the opinions of not only the SCOTUS but also those of the lower federal and state appellate courts. While it is certainly true that many of them do not always understand the nuances of each opinion and the body of case law as a whole, they nonetheless take the initiative to read them. Those of us that do have the ability to understand the intricacies, and incongruences, of judicial decisions, work tirelessly to provide our colleagues with comprehendible and defensible guidance to perform their duties going forward. The author would do well to realize that while most officers do not actually read case law, there is a dedicated field of police legal trainers, some of whom are actually police officers, who do. These trainers believe passionately in the fundamental role that constitutional policing plays in protecting and serving and we are properly dedicated to ensuring that our colleagues have the legal understanding necessary to do their jobs.

Posted by: Zach | May 19, 2015 11:27:02 PM

Alito says as much in footnote 3:

Not satisfied with dismissing question one, which concerns San
Francisco’s liability, our dissenting colleagues would further punish
San Francisco by dismissing question two as well. See post, at 3
(opinion of SCALIA, J.) (arguing that deciding the second question would
“reward” San Francisco and “spar[e it] the significant expense of
defending the suit, and satisfying any judgment, against the individual
petitioners”). But question two concerns the liability of the individual
officers. Whatever contractual obligations San Francisco may (or may
not) have to represent and indemnify the officers are not our concern.
At a minimum, these officers have a personal interest in the correctness
of the judgment below, which holds that they may have violated the
Constitution. Moreover, when we granted the petition, we determined
that both questions independently merited review. Because of the
importance of qualified immunity “to society as a whole,” Harlow v.
Fitzgerald, 457 U. S. 800, 814 (1982), the Court often corrects lower
courts when they wrongly subject individual officers to liability. See,
e.g., Carroll v. Carman, 574 U. S. ___ (2014) (per curiam); Wood v.
Moss, 572 U. S. ___ (2014); Plumhoff v. Rickard, 572 U. S. ___ (2014);
Stanton v. Sims, 571 U. S. ___ (2013) (per curiam); Reichle v. Howards,
566 U. S. ___ (2012).

The footnote ("or may not") also goes HW's point about the continuing importance of embracing outright fictions in 1983 law. See this great article:

"My study reveals that police officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct."

Posted by: brad | May 19, 2015 3:23:31 PM

I was surprised that Justice Alito wrote the opinion answering the second question posed by San Francisco. After all, just the previous term, he wrote separately in Tolan v. Cotton to express his view that granting cases for error correction would "substantially alter the Court's practice."

I guess he's only concerned about that when the Court finds that officers are *not* entitled to qualified immunity?

Posted by: Cris | May 19, 2015 10:39:07 AM

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