CA1 denies rehearing en banc on Jardines and denies qualified immunity

French v. Merrill, 2022 U.S. App. LEXIS 2625 (1st Cir. Jan. 28, 2022) (3-3*) (panel decision 15 F.4th 116 (1st Cir. Oct. 1, 2021)). On why rehearing should not be granted:

Further, the panel majority violates two other rules about qualified immunity: that the qualified immunity inquiry must be focused on the specific context of the case and that it must focus on what the officers knew at the time. The qualified immunity inquiry must “focus … on whether the officer had fair notice that her conduct was unlawful,” and “must be undertaken in light of the specific context of the case.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004) (second quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). In light of the context, “qualified immunity turns on assessing the situation from the point of view of an objectively reasonable officer.” LaFrenier v. Kinirey, 550 F.3d 166, 168 n.2 (1st Cir. 2008). Not only did the officers in this case lack notice of the purported unconstitutionality of their knock and talk, but the context of the case and the information known to the officers render their actions more, not less, reasonable. The victim, who the officers knew had complained to the police about the perpetrator in the past as recounted above, reached out to them two separate times in the same night, saying that her former boyfriend had twice broken into her home and that she was frightened. The officers appropriately took seriously her report of the threats to her safety and the risk that the perpetrator would destroy the cell phone. They reasonably decided to attempt to knock and talk with the suspect by knocking on his door, and then his window. It was reasonable for them to do what they did, and nothing in the Constitution required them to abandon their efforts to knock and talk and to delay and prepare a warrant application and seek a warrant from a judge in a different town, a lengthy process.

The dissents urge SCOTUS review because qualified immunity clearly applied:

The panel decision and the denial of en banc review frustrate the very purposes for which qualified immunity was created. Qualified immunity serves the important purpose of freeing government officials to act without fear of liability when they make reasonable decisions in the course of their duties. See Mullenix v. Luna, 577 U.S. 7, 11-12, 136 S. Ct. 305, 193 L. Ed. 2d 255 (2015) (per curiam). This doctrine recognizes that it is difficult for officials to anticipate how relevant legal doctrines will apply in various situations absent specific guidance from courts. See id. at 12. While government officials must conform their conduct to the Constitution, the law of qualified immunity prohibits the imposition of penalties on them for their reasonable conduct, especially when there is no clear guidance from the courts as to the contours of the constitutional right at issue.

Nothing in Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013) put the officers in this case on notice that their actions were in violation of any clearly established rule. Here, a female victim who had just ended an intimate partner relationship with the perpetrator reported the following to the police. She reported to defendants that her former boyfriend had angrily confronted her on a public street, climbing onto the hood of her car, and then when she got home, he twice broke into her house as she and her roommates slept. During the first break-in he had stolen her phone, and she was frightened by him, his conduct, and what he would do when he read the messages on her phone. The officers immediately went to where he lived, in a multi-tenant house, to knock and talk, as they plainly had the right to do. When no one answered the officers knocking on the front door, the officers then went a few feet into the curtilage to knock on the bedroom window of the room they believed was the perpetrator’s room. They then returned to the door and knocked again. Another occupant answered the door, and that occupant went to get the perpetrator. He voluntarily came to the door and was questioned by the defendants, and his answers led to his arrest.

SCOTUS may take this one.

*Apparently no senior judges participating. There are two dissenting opinions.

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