{"id":9955,"date":"2014-01-04T08:29:21","date_gmt":"2013-12-11T08:34:47","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-12-11T08:34:47","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=9955","title":{"rendered":"CA6: QI protects against suit over movement from home confinement to actual custody"},"content":{"rendered":"

Qualified immunity protects government employees from a claim that the due process clause and Fourth Amendment create an interest between home confinement and movement to actual custody. As in qualified immunity, \u201cno relevant authority existed at the time of the incident.\u201d And, of course, the Fourth Amendment issue goes undecided in this circuit. Ortega v. United States Immigration & Customs Enforcement<\/a>, 737 F.3d 435 (6th Cir. 2013)*:<\/p>\n

<\/p>\n

Fourth Amendment.<\/em> A similar problem undermines Ortega’s Fourth Amendment claim\u2014namely, no relevant authority existed at the time of the incident. A Fourth Amendment seizure requires “a governmental termination of freedom of movement through means intentionally applied.” Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989). As of March 2011, no controlling authority established that moving a convict from home confinement to prison confinement resulted in a new seizure within the meaning of the Fourth Amendment.<\/p>\n

The few cases to discuss seizure claims by those already confined suggest that the “freedom of movement” and “protected liberty interest” inquiries overlap. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000) (“[B]ecause Plaintiff had no protected liberty interest in not being confined in the SHU, he fails to state a Fourth Amendment claim.”); Leslie v. Doyle, 125 F.3d 1132, 1135-36 (7th Cir. 1997) (“We see no reason … why a prisoner’s liberty interest under [the Search and Seizure and Due Process Clauses] would differ.”). The open question raised by Ortega’s due process claim thus spills over into this claim: Should a home confinee be thought of as a prisoner without freedom of movement or as a probationer\/parolee with freedom of movement?<\/p>\n

This open question requires a conclusion that “the contours of [a home confinee’s right against unreasonable seizures was not] sufficiently clear that a reasonable official would understand that [a transfer from home confinement to jail] violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). The individual defendants reasonably could have thought that transferring Ortega to jail would not terminate his “freedom of movement” within the meaning of the Fourth Amendment because home confinement serves as an off-the-premises jail. Just as qualified immunity applies to Ortega’s due process claim, it thus also applies to his illegal-seizure claim.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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