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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)