Category Archives: Supreme Court

Chemerinsky: Hurt by a government official? SCOTUS is making it harder and harder to sue

Posted Jun 24, 2014 8:40 AM CDT
By Erwin Chemerinsky

In a series of cases this term, the U.S. Supreme Court has made it much more difficult for plaintiffs to recover for civil rights violations. These decisions continue a pattern in recent years of the Supreme Court significantly expanding the immunity accorded to government officials sued for violating the Constitution.

Suing individual government officers is often the only way that an injured person can recover for constitutional violations. Yet suits against government entities are often difficult, if not impossible, to win. Both the federal and state governments are protected by sovereign immunity, which greatly limits suits against them for damages. Local governments may be held liable for civil rights violations only if there is a municipal policy or custom that led to the injury.

State and local government officials may be sued for constitutional violations pursuant to 42 U.S. Code Sec. 1983, and federal officers may be sued pursuant to the Supreme Court’s 1971 decision, Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics. The Supreme Court, however, has said that all government officials sued for money damages may raise immunity as a defense. Some government officers have absolute immunity to suits for money damages: among them are judges performing judicial tasks, prosecutors performing prosecutorial tasks, legislators performing legislative tasks, police officers testifying as witness, and the president for acts taken in office.

All other government officers have qualified immunity. In Harlow v. Fitzgerald, the Supreme Court held in 1982 that “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.”

In the 30 years since Harlow, courts have struggled with how to determine if there is a clearly established law that the “reasonable person would have known.” Must there be a case on point to say that there is such clearly established law?

In Hope v. Pelzer, the court in 2002 seemingly resolved this and held that there need not be a prior decision on point for the plaintiff to show the existence of clearly established law. Rather, officers may be held liable so long as they had fair warning that their conduct was impermissible.

The case involved a prisoner who was tied to a hitching post and left in the hot sun. The federal court of appeals found that this was cruel and unusual punishment, but that the officers were protected by qualified immunity because there was no case on point holding that such use of the hitching post violated the Constitution. The Supreme Court reversed and said that a case on point is sufficient to show clearly established law, but it is not necessary.

In the decade since Hope v. Pelzer, including three cases this term, the Supreme Court repeatedly has found qualified immunity based on the absence of a case on point. The court has not overruled Hope v. Pelzer or even distinguished it; the court has simply ignored it. In the process, the court has made it much harder for plaintiffs to overcome qualified immunity and hold government officers liable for constitutional violations.

In Lane v. Franks, issued June 19, the court unanimously held that a government employee’s First Amendment rights were violated when he was fired for truthful testimony he gave pursuant to a subpoena. This result seems so obvious: of course it is wrong to fire a person for testifying honestly in a criminal trial, especially when the individual had no choice but to testify because of a subpoena.

Nonetheless, the court found that the defendant responsible for the firing was protected from liability by qualified immunity. Justice Sonia Sotomayor, writing for the court, said that “[t]he relevant question for qualified immunity purposes is this: Could Franks reasonably have believed, at the time he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities?” The court reviewed precedents, especially from the 11th U.S. Circuit Court of Appeals, which earlier ruled on the case, and found that none had clearly held that this violates the First Amendment. But Hope v. Pelzer said that a case on point is not necessary: Shouldn’t every government officer know that it is wrong to fire a person for truthfully testifying in court?

In Plumhoff v. Rickard, decided on May 27, the court again found that government officials were protected by qualified immunity. Police officers pulled over a white Honda Accord because the car had only one operating headlight. Donald Rickard was the driver of the Accord, and Kelly Allen was in the passenger seat. The officer asked Rickard if he had been drinking, and Rickard responded that he had not. Because Rickard failed to produce his driver’s license upon request and appeared nervous, the officer asked Rickard to step out of the car. Rather than comply with the officer’s request, Rickard sped away.

A high-speed chase then occurred that lasted five minutes and reached speeds greater than 100 mph. At one point, the officers appeared to have Rickard’s car pinned. But when the car pulled away, officers fired three shots into the car. As the car attempted to speed away, another 12 shots were fired by the police. Both the driver and the passenger were killed. The 6th U.S. Circuit Court of Appeals concluded that the police used excess force and violated the Fourth Amendment.

The Supreme Court unanimously reversed, ruling in favor of the police. Justice Samuel A. Alito Jr. wrote for the court and held that there was no violation of the Fourth Amendment. The court said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said “it stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Moreover, the court said that even if there were a Fourth Amendment violation, the officers were protected by qualified immunity, in that the law had not clearly established that the conduct violated the Fourth Amendment.

This is a disturbing holding. The Supreme Court now has said that whenever there is a high-speed chase that the officers perceive could injure others–and that would seem to be true of virtually all high speed chases–the police can shoot at the vehicle and keep shooting until it stops. The car was stopped for having only one working headlight. If the driver refused to stop, why not just let the car go and then track the driver down later? Why should death be the punishment for making the extremely poor choice to begin a high-speed chase?

Finally, in Wood v. Moss, also decided on May 27, the court found that Secret Service agents were protected by qualified immunity when they engaged in viewpoint discrimination with regard to speakers. President George W. Bush was in Oregon and the Secret Service agents allowed supporters of President Bush to be closer and pushed the opponents further away. The law is clear that the government cannot discriminate among speakers based on their views unless strict scrutiny is met.

Nonetheless, the court, in a unanimous decision with the majority opinion written by Justice Ruth Bader Ginsburg, found that the Secret Service agents were protected by qualified immunity because there were no cases on point concerning when Secret Service agents may violate the First Amendment. But why do there need to be specific cases since the law is clearly established that viewpoint discrimination violates the First Amendment?

All of these cases were unanimous. All found qualified immunity because of the absence of a case on point. Together they show a court that is very protective of government officials who are sued and that has made it very difficult for victims of constitutional violations to recover.

Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

The U.S. Supreme Court Is Marching in Lockstep with the Police State

 

 

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“[I]f the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.”-U.S. Supreme Court Justice William O. Douglas

The U.S. Supreme Court was intended to be an institution established to intervene and protect the people against the government and its agents when they overstep their bounds. Yet as I point out in my book A Government of Wolves: The Emerging American Police State, Americans can no longer rely on the courts to mete out justice. In the police state being erected around us, the police and other government agents can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts.

Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching innocent motorists on the side of the road, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.

These are the hallmarks of the emerging American police state: where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies rather than citizens.

A review of the Supreme Court’s rulings over the past 10 years, including some critical ones this term, reveals a startling and steady trend towards pro-police state rulings by an institution concerned more with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution.

Police officers can use lethal force in car chases without fear of lawsuits. In Plumhoff v. Rickard (2014), the Court declared that police officers who used deadly force to terminate a car chase were immune from a lawsuit. The officers were accused of needlessly resorting to deadly force by shooting multiple times at a man and his passenger in a stopped car, killing both individuals.

Police officers can stop cars based only on “anonymous” tips. In a 5-4 ruling inNavarette v. California (2014), the Court declared that police officers can, under the guise of “reasonable suspicion,” stop cars and question drivers based solely on anonymous tips, no matter how dubious, and whether or not they themselves witnessed any troubling behavior. This ruling came on the heels of a ruling by the Tenth Circuit Court of Appeals in U.S. v. Westhoven that driving too carefully, with a rigid posture, taking a scenic route, and having acne are sufficient reasons for a police officer to suspect you of doing something illegal, detain you, search your car, and arrest you–even if you’ve done nothing illegal to warrant the stop in the first place.

Secret Service agents are not accountable for their actions, as long as they’re done in the name of security. In Wood v. Moss (2014), the Court granted “qualified immunity” to Secret Service officials who relocated anti-Bush protesters, despite concerns raised that the protesters’ First Amendment right to freely speak, assemble, and petition their government leaders had been violated. These decisions, part of a recent trend toward granting government officials “qualified immunity”–they are not accountable for their actions–in lawsuits over alleged constitutional violations, merely incentivize government officials to violate constitutional rights without fear of repercussion.

Citizens only have a right to remain silent if they assert it. The Supreme Court ruled inSalinas v. Texas (2013) that persons who are not under arrest must specifically invoke their Fifth Amendment privilege against self-incrimination in order to avoid having their refusal to answer police questions used against them in a subsequent criminal trial. What this ruling says, essentially, is that citizens had better know what their rights are and understand when those rights are being violated, because the government is no longer going to be held responsible for informing you of those rights before violating them.

Police have free reign to use drug-sniffing dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside. In Florida v. Harris (2013), a unanimous Court determined that police officers may use highly unreliable drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops. In doing so, the justices sided with police by claiming that all that the police need to do to prove probable cause for a search is simply assert that a drug detection dog has received proper training. The ruling turns man’s best friend into an extension of the police state.

Police can forcibly take your DNA, whether or not you’ve been convicted of a crime. InMaryland v. King (2013), a divided Court determined that a person arrested for a crime who is supposed to be presumed innocent until proven guilty must submit to forcible extraction of their DNA. Once again the Court sided with the guardians of the police state over the defenders of individual liberty in determining that DNA samples may be extracted from people arrested for “serious offenses.” While the Court claims to have made its decision based upon concerns of properly identifying criminal suspects upon arrest, what they actually did is open the door for a nationwide dragnet of suspects targeted via DNA sampling.

Police can stop, search, question and profile citizens and non-citizens alike. The Supreme Court declared in Arizona v. United States (2012) that Arizona police officers have broad authority to stop, search and question individuals–citizen and non-citizen alike. While the law prohibits officers from considering race, color, or national origin, it amounts to little more than a perfunctory nod to discrimination laws on the books, while paving the way for outright racial profiling and destroying the Fourth Amendment.

Police can subject Americans to virtual strip searches, no matter the “offense.” A divided Supreme Court actually prioritized making life easier for overworked jail officials over the basic right of Americans to be free from debasing strip searches. In its 5-4 ruling in Florence v. Burlington (2012), the Court declared that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a virtual strip search by police or jail officials, which involves exposing the genitals and the buttocks. This “license to probe” is now being extended to roadside stops, as police officers throughout the country have begun performing roadside strip searches–some involving anal and vaginal probes–without any evidence of wrongdoing and without a warrant.

Immunity protections for Secret Service agents trump the free speech rights of Americans. The court issued a unanimous decision in Reichle v. Howards (2012), siding with two Secret Service agents who arrested a Colorado man simply for daring to voice critical remarks to Vice President Cheney. However, contrast the Court’s affirmation of the “free speech” rights of corporations and wealthy donors in McCutcheon v. FEC (2014), which does away with established limits on the number of candidates an entity can support with campaign contributions, and Citizens United v. FEC (2010) with its tendency to deny those same rights to average Americans when government interests abound, and you’ll find a noticeable disparity.

Police can break into homes without a warrant, even if it’s the wrong home. In an 8-1 ruling in Kentucky v. King (2011), the Supreme Court placed their trust in the discretion of police officers, rather than in the dictates of the Constitution, when they gave police greater leeway to break into homes or apartments without a warrant. Despite the fact that the police in question ended up pursuing the wrong suspect, invaded the wrong apartment and violated just about every tenet that stands between us and a police state, the Court sanctioned the warrantless raid, leaving Americans with little real protection in the face of all manner of abuses by police.

Police can interrogate minors without their parents present. In a devastating ruling that could very well do away with what little Fourth Amendment protections remain to public school students and their families–the Court threw out a lower court ruling in Camreta v. Greene (2011), which required government authorities to secure a warrant, a court order or parental consent before interrogating students at school. The ramifications are far-reaching, rendering public school students as wards of the state. Once again, the courts sided with law enforcement against the rights of the people.

It’s a crime to not identify yourself when a policeman asks your name. In Hiibel v. Sixth Judicial District Court of the State of Nevada (2004), a majority of the high court agreed that refusing to answer when a policeman asks “What’s your name?” can rightfully be considered a crime under Nevada’s “stop and identify” statute. No longer will Americans, even those not suspected of or charged with any crime, have the right to remain silent when stopped and questioned by a police officer.

The cases the Supreme Court refuses to hear, allowing lower court judgments to stand, are almost as critical as the ones they rule on. Some of these cases, turned away in recent years alone, have delivered devastating blows to the rights enshrined in the Constitution.

Legally owning a firearm is enough to justify a no-knock raid by police. Justices refused to hear Quinn v. Texas (2014) the case of a Texas man who was shot by police through his closed bedroom door and whose home was subject to a no-knock, SWAT-team style forceful entry and raid based solely on the suspicion that there were legally-owned firearms in his household.

The military can arrest and detain American citizens. In refusing to hear Hedges v. Obama (2014), a legal challenge to the indefinite detention provision of the National Defense Authorization Act of 2012 (NDAA), the Supreme Court affirmed that the President and the U.S. military can arrest and indefinitely detain individuals, including American citizens. In so doing, the high court also passed up an opportunity to overturn its 1944 Korematsu v. United States ruling allowing for the internment of Japanese-Americans in concentration camps.

Students can be subjected to random lockdowns and mass searches at school. The Court refused to hear Burlison v. Springfield Public Schools (2013), a case involving students at a Missouri public school who were subjected to random lockdowns, mass searches and drug-sniffing dogs by police. In so doing, the Court let stand an appeals court ruling that the searches and lockdowns were reasonable in order to maintain the safety and security of students at the school.

Police officers who don’t know their actions violate the law aren’t guilty of breaking the law. The Supreme Court let stand a Ninth Circuit Court of Appeals decision in Brooks v. City of Seattle (2012) in which police officers who clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop were granted immunity from prosecution. The Ninth Circuit actually rationalized its ruling by claiming that the officers couldn’t have known beyond a reasonable doubt that their actions–tasering a pregnant woman who was not a threat in any way until she was unconscious–violated the Fourth Amendment.

When all is said and done, what these assorted court rulings add up to is a disconcerting government mindset that interprets the Constitution one way for the elite–government entities, the police, corporations and the wealthy–and uses a second measure altogether for the underclasses–that is, you and me.

Keep in mind that in former regimes such as Nazi Germany and the Soviet Union, the complicity of the courts was the final piece to fall into place before the totalitarian beast stepped out of the shadows and into the light. If history is a guide, then the future that awaits us is truly frightening.

Time, as they say, grows short.

John W. Whitehead is an attorney and author who has written, debated and practiced widely in the area of constitutional law and human rights. Whitehead’s aggressive, pioneering approach to civil liberties has earned him numerous accolades and accomplishments, including the Hungarian Medal of Freedom. His concern for the persecuted and oppressed led him, in 1982, to establish The Rutherford Institute, a nonprofit civil liberties and human rights organization in Charlottesville, Va. Whitehead serves as the Institute’s president and spokesperson.

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