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Of the many ideas for police reform to gain traction following the murders of George Floyd and Breonna Taylor by law enforcement, ending the judge-made legal doctrine of qualified immunity stands out for its tri-partisan and popular appeal.

More than 1,400 current and former pro athletes and coaches, including NFL stars Odell Beckham Jr. and Tom Brady, posted an open letter to Congress in support of the idea. Sen. Mike BraunMichael BraunLawmakers see some common ground on police reform proposals Police reforms should include federal cops too Booker says GOP senator has told him qualified immunity is 'on the table' in Senate police reform bill MORE (R-Ind.) declared his interest in introducing legislation. And it is a centerpiece of the Justice in Policing Act, which is quickly making its way through the House and proposes eliminating qualified immunity for state and local law enforcement.

But few have noticed that the bill leaves in place an FBI-SWAT-team-sizedloophole that shields federal officers from judicial accountability.Now is the moment to hold all law enforcement officers accountable for violating the United States Constitution.

The current version of the Justice in Policing Act would largely end qualified immunity for state and local law enforcement by amending Section 1983. Enacted as part of the Civil Rights Act of 1871 in the aftermath of the Civil War, Section 1983 ensures that state and local officers can not violate individuals federal constitutional rights with impunity which law enforcement in the recently vanquished former confederacy stood ready and eager to do. It allows individuals to sue state and local officials to recover damages for constitutional violations, and has been the primary tool that victims of police brutality use to secure redress for constitutional injuries ever since. Although in practice qualified immunity has made it nearly impossible to hold state officers accountable for the deprivation of rights.

At the federal level, the situation is even worse, because there is no corresponding statutory cause of action for those who suffer constitutional injury at the hands of federal officers. In 1971, the Supreme Courts decision in Bivens v. Six Unknown Federal Narcotics Agents recognized limited circumstances in which the Constitution itself authorizes victims to recover damages in cases involving federal officers, potentially putting federal abuses to the same test as the one applied to state and local wrongs.

But the Court has consistently and significantly curtailed the availability of these so-called Bivens claims in recent years. In its February decision in Hernndez v. Mesa, the Court all but shut them down, express[ing] doubt about [its] authority to recognize causes of action not expressly created by Congress. As Justice Clarence ThomasClarence ThomasLawmakers see some common ground on police reform proposals Police reforms should include federal cops too Booker says GOP senator has told him qualified immunity is 'on the table' in Senate police reform bill MORE declared in his concurring opinion, the time has come to consider discarding the Bivens doctrine altogether.

The fact that section 1983 cannot be used for federal officer misconduct, coupled with a Court increasingly reticent to sustain one absent a statute that creates it, means that victims of constitutional violations by federal officers too often have limited recourse. ICE officers who conduct illegal searches and seizures in violation of the Fourth Amendment, federal law enforcement officers who give falsified evidence in violation of the Sixth Amendment, TSA officers who violate individuals First Amendment rights and prison officials who subject inmates to punitive strip searches in violation of the Fourth and Fifth Amendments have all been found to be immune from judicial accountability. It is not unreasonable to expect that the Supreme Court will soon eliminate the Bivens doctrine altogether, leaving victims of unlawful actions by federal officers with no recourse.

For those who suffer constitutional violations by those sworn to protect them, whether the offending officer is a county sheriff or DEA agent is irrelevant. The distinction shouldnt matter to the law either. And yet it does.

Take the protesters who gathered in Lafayette Square on June 1 to protest systemic racism and the police killings of George Floyd and Breonna Taylor. As shocking footage from the Washington Post shows, federal law enforcement officers violently and without provocation dispersed the otherwise peaceful crowd. Such victims of police violence deserve to have a legal remedy. Soon, because of judicial trends and inaction from Congress, they might not.

Congress must step in to fill this lawless void by codifying Bivens claims. Closing this loophole would not only provide victims with an avenue for relief, but also help to deter future abuses. The Supreme Court has recognized the importance of judicial accountability in preventing federal law enforcement misconduct, not just remedying it, observing that the function of a Bivens suit is in part to deter individual federal officers . . . from committing constitutional violations. Without a federal Bivens statute without a mechanism for judicial accountability Congress provides federal law enforcement with little incentive to abide by its laws.

The United States needs a modernized Civil Rights Act of 1871 for the year 2020. Just as Congress did in creating section 1983 to authorize suits against state and local officers who terrorized newly freed slaves and those who might come to their aid, it should guarantee a private right of action for recovery of damages for constitutional violations by federal officers, retroactively and for future abuses. Any efforts at police reform that stop short of applying the law equally, no matter the badge, will fall short.

Justin Vail is a policy advocate at Protect Democracy. Roy L. Austin, Jr. is a partner at Harris, Wiltshire & Grannis, LLP and a former federal prosecutor in Washington DC and Deputy Assistant Attorney General in the Civil Rights Division.

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Police reforms should include federal cops too | TheHill - The Hill

The horrific killing of George Floyd makes obvious what observers of the legal system have long decried: the corrosive effect of racial discrimination on the American system of justice. The Floyd homicide has terrible echoes of so many others, including the killing of Eric Garner in 2014, who was choked to death by a white police officer as he pleaded to be allowed to breathe.

The protesters who march to end such discrimination are combating a pervasive defect in how the American legal system works, from policing to prosecuting to sentencing. Study after study confirms that our criminal laws are enforced in a racially disparate manner, with African Americans and Latinos being treated much more harshly than whites for minor crimes and serious ones.

Examinations of traffic stops reveal that black drivers are stopped more frequently than white ones. In New York, a federal court found that officers of the New York Police Department used stop-and-frisk discretion overwhelmingly against young men of color, despite the fact that these actions yielded less contraband than searches of whites.

In Ohio, where blacks constitute about 12% of the population, 56% of the men on death row presently are African Americans.

The solution to such discrimination should lie with the federal courts, which are charged with enforcing the U.S. Constitution. The 14th Amendment provides that no state including local governments might deny equal protection of the laws. The Fourth Amendment guarantees that the police may not unreasonably seize or search people, and racially discriminatory law enforcement is the epitome of unreasonableness.

Yet the U.S. Supreme Court has failed to put teeth into these provisions of the Constitution. In the notorious case of McCleskey v. Kemp in 1984, for example, the court rejected an equal protection challenge by a black death row inmate who showed that blacks found guilty of murder in Georgia, especially those who had killed whites, were sentenced to death much more frequently than white murderers. The court held that McCleskey could not rely on evidence of systemic racism in Georgias system, but would have to prove that the prosecutor, judge, or jurors in his case had acted against him for racially discriminatory reasons an almost impossible burden in most cases.

In evaluating the reasonableness of police actions under the Fourth Amendment, an increasingly conservative Supreme Court consistently refuses to hold police accountable for troubling uses of force. The court ruled that even in cases where deadly force is used in questionable ways, police officers are almost always immune from sanctions for violating the Fourth Amendment.

Confronted by a hostile federal judiciary, those who wish to eradicate racial bias from our legal system must turn to the ballot box. Political leaders have significant powers to stem the tide of racial discrimination in law enforcement, if they are willing to use them.

For eight years, the Obama Justice Department aggressively used federal law to reign in abusive practices by local police departments. From Ferguson, Missouri, following the killing of Michael Brown, to Cleveland, Ohio, after the killing of the unarmed 12-year-old Tamir Rice, the Obama administration used federal law to punish and prevent such abuses.

Yet when Donald Trump was elected, one of his first actions was to roll back investigations of racially discriminatory law enforcement. Indeed, the Minneapolis Police Union President Bob Kroll, who labeled George Floyd a violent criminal, spoke this fall at a campaign rally for Donald Trump and praised him for repudiating the Obama policies aimed at preventing abusive police practices.

Elections can have far-reaching consequences for justice. In Philadelphia and other communities, reformist candidates for district attorney like Larry Krasner have won election based on their commitment to overhauling how the justice system unfairly treats minorities.

U.S. Rep. Joyce Beatty has taken to the streets to promote understanding between protesters and police. Ohio Gov. Mike DeWine has spoken out forcefully against the killing of George Floyd.

Martin Luther King Jr. argued that the arc of the moral universe is long, but it bends toward justice. In November 2020, we will have a crucial opportunity to decide how long that arc toward justice will take.

Dan Kobil is a professor at Capital University Law School where he teaches constitutional law and criminal procedure.

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Column: Upcoming election will be key to confronting discrimination in our legal system - The Columbus Dispatch

On June 3, protestors in Washington, D.C., who rallied in response to the death of George Floyd were met with federal law enforcement officers equipped with riot gear and rifles but who lacked badges or other identifying information. When asked about their affiliation, these officers responded that they worked for the Department of Justice or the federal government, but they did not offer more detail.

The officers refusal to identify themselves immediately sparked criticism. Observers raised concerns that this practice could lead protesters to resist lawful orders and create opportunities for armed provocateurs to pose as law enforcement. Some even drew comparisons to the armed and unidentified little green men who appeared in the Crimea region of Ukraine shortly before its 2014 occupation by Russia and were widely believed to be Russian soldiers operating anonymously.

Since the first days of protests in Washington, D.C., many of the unmarked officers have been identified as part of special operations response teams for the Bureau of Prisons. But the question remains: What legal authorities require officers to share their identities, and are there any consequences for failing to do so?

After news reports linked the unidentified officers to the Bureau of Prisons, Attorney General William Barr attempted to explain the officers behavior by stating that [i]n the federal system, the agencies dont wear badges with their names and stuff like that. I could understand why some of these individuals simply wouldnt want to talk to people about who they are, if that in fact was the case. Similarly, a statement from the bureau said that [i]t is common for federal law enforcement agents to identify themselves to citizens simply as federal law enforcement. However, the director of the bureau said, I probably should have done a better job of marking them nationally as the agency.

Nor was this the only instance of law enforcement officers attempting to hide or obscure their identities during the recent nationwide protests. In several cities, including Seattle, New York and Chicago, individuals also reported that a few police officers deployed to the protests covered their badge numbers with tape. Such obfuscation has been widely criticized, even by city officials. Chicago Mayor Lori Lightfoot stated that the officers who refused to identify themselves forfeited the right to be Chicago police officers, although she would not have the final say about whether to discipline the officers.

Broadly speaking, law enforcement officers do not have a legal duty to disclose either their identities or their agencies of affiliation, even if asked directly. Certain municipalities require police officers to identify themselves if asked, but there is currently no federal statute requiring officer disclosure of such information. Generally, federal law enforcement conduct is guided by the internal regulations of the particular law enforcement agency for whom the officers workor, when federal officials are not involved, the regulations of local police departments.

For this reason, the majority of litigation analyzing law enforcement officers obligation to disclose their identities focuses on two scenarios that are somewhat inapposite to current events: undercover law enforcement operations and the potential for entrapment; and search and seizure cases implicating an individuals Fourth Amendment rights. Courts have adopted a broad definition of seizure that includes displays of force and the use of language that implies compliance is required. Thus, the legal analysis underpinning the second scenario provides the clearest guidance on the standards courts would likely look to in litigation surrounding the recent failures of federal law enforcement officers to disclose their identities. Nevertheless, the current circumstances, where individuals are clearly law enforcement but refuse to identify themselves, present a distinct and novel issue.

The central question in analyzing such officers behavior would be whether or not it was reasonable. The Fourth Amendment precludes the government from conducting unreasonable searches and seizures, but, as the Supreme Court noted in Mapp v. Ohio (1961), there remains no fixed test for reasonableness. Instead, trial courts determine reasonableness using an objective standard on a case-by-case basis. The reasonableness inquiry under the Fourth Amendment focuses on the specific context and the threat that the suspect poses. In the event that an individual believes law enforcement failed to conduct a seizure reasonably, that individual may pursue a civil action against the relevant government officers for a violation of his or her constitutional rights. But such a suit may be brought only after the alleged constitutional violation has occurred, which highlights the challenges posed by the current situation; if the officers did not conduct a search or seizure of a protestor, there would be no basis to challenge their behavior under the Fourth Amendment.

Additionally, even in the event of a constitutional violation, the doctrine of qualified immunity creates a high bar for recovery when a law enforcement officer is sued. Once again, a reasonableness standard is essential. Only if the right in question has been clearly established and a reasonable officer would not believe that the activity the officer engaged in was lawful, will that officer be denied qualified immunity. (For a broader discussion of the arguments for and against qualified immunity, see this Lawfare post.)

The nature of the inquiry into the reasonableness of a law enforcement officers failure to identify as such is largely dependent on where the search or seizure in question occurred. While the Supreme Court has recognized a requirement that police officers should generally knock and announce themselves prior to searching a house, it has not made this an absolute requirement for a search to be reasonable. Rather, in Wilson v. Arkansas (1995), the Supreme Court stated, We simply hold that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry. Generally speaking, the Supreme Court has recognized the special status of the home but has been loath to broadly extend the equivalent of a knock and announce requirement to law enforcement actions in the public sphere.

The cases most germane to the present situation therefore focus on the question of whether plainclothes police officers need to identify themselves as law enforcement so that individuals do not think they are being assaulted by a civilian when stopped in public. Courts have held that, although officers generally should identify themselves in these situations, in certain circumstances it may be reasonable for them not to disclose their status as law enforcement. In considering whether to grant qualified immunity to an officer who did not say he was from the police, the U.S. Court of Appeals for the Seventh Circuit held in Catlin v. City of Wheaton (2009) that it is far from clearly established that the Fourth Amendment requires police officers to identify themselves in the course of carrying out an arrest in a public place. The defendants prevailed in that case in part because their decision not to identify themselves was deemed reasonable given that the suspect was a known drug kingpin who could pose an immediate and violent threat.

Thus, there is no absolute requirement that law enforcement officers identify themselves prior to conducting a search or seizure. Instead, a failure to do so bears on the reasonableness of the officers overall behaviors, including, as the U.S. Court of Appeals for the Eighth Circuit noted in Atkinson v. City of Mountain View, Mo. (2013), the nature of the plaintiffs crime and whether or not the plaintiff posed an immediate threat to the officer. A unanimous Seventh Circuit panel in Doornbos v. City of Chicago (2017) stated that, [a]lthough some unusual circumstances may justify an officers failure to identify himself in rare cases, it is generally not reasonable for a plainclothes officer to fail to identify himself when conducting a stop. Thus, there is some chance that an officer could be denied qualified immunity on the basis of a failure to identify if that failure was deemed unreasonable and precedents just discussed had clearly established a right to disclosure. Additionally, whether or not a law enforcement officer has identified himself or herself prior to effecting a stop or seizure has some influence on how a court interprets a criminal defendants subsequent actions. Nevertheless, it remains difficult for someone suing a law enforcement officer to clear the highly protective bar for qualified immunity the Supreme Court has set.

Recent events are somewhat different from the aforementioned cases in which law enforcement officers appeared indistinguishable from civilians. But litigation arising from law enforcement officers failure to identify themselves during the recent protests would likely entail a similar inquiry into the objective reasonableness of an officers activity. The U.S. Court of Appeals for the Eleventh Circuit found in Beckman v. Hamilton (2018), for example, that officers in plain view and in full uniform provided civilians notice sufficient to obviate the need for verbal identification as law enforcement.

This standard can prove challenging, however, in contexts where officers are outfitted with equipment that is not commonly associated with the police. For example, some of the Bureau of Prisons officers who were operating in Washington, D.C., were wearing blue short-sleeve T-shirts rather than more traditional uniforms. In certain circumstances, including the recent protests, there is also a genuine risk that militarized civilians dressed similarly to militarized law enforcement officers may also be operating on the scene. In such circumstances, peaceful protestors may not know who is actually law enforcement unless those officers clearly identify themselves.

Nevertheless, it remains unclear how other circuits or the Supreme Court would interpret the present scenario. Moreover, the lack of reasonableness in officers failing to identify themselves may be heightened in the context of the current protests, because the protestors are unlikely to flee or be armed and thus cause the type of threat where such a tactic would be necessary.

Separate from the question of federal law, several states have adopted laws and regulations requiring law enforcement to identify themselves. For example, under New York Citys Right to Know Act, a broad set of police reforms that went into effect in October 2018, officers must tell civilians at the start of some interactions their name, rank, command, and shield number. Similarly, Section 5331.09 of the Code of the District of Columbia requires that the Metropolitan Police Department ensure that all uniformed officers assigned to police First Amendment assemblies are equipped with the enhanced identification and may be identified even if wearing riot gear, including by modifying the manner in which those officers names or badge numbers are affixed to the officers uniforms or helmets to make the information more visible.

The Justice Department has also previously played an important role in making sure that police departments meet accountability standards for displaying identifying information. In 2014, it criticized the Ferguson Police Department for reports of officers having failed to wear nameplates, which emerged as part of an investigation into the police department for an alleged pattern or practice of unlawful misconduct. The investigation was triggered in part by the killing of Michael Brown, an African American man, by a white police officer. A Justice Department letter sent to Ferguson police explained that [o]fficers wearing name plates while in uniform is a basic component of transparency and accountability. Allowing officers to remain anonymous when they interact with the public contributes to mistrust and undermines accountability. The failure to wear name plates conveys a message to community members that, through anonymity, officers may seek to act with impunity. Requirements that officers introduce themselves by name and rank as soon as practicable during investigatory and noncustodial stops was also part of the consent decree between the City of Ferguson and the Department of Justice, which was entered into in March 2016 in the wake of the Justice Departments investigation. The new guidelines were intended to promote the police departments efforts at community policing. Even prior to the consent decree, municipal law in Ferguson required that officers wear the regulation uniform while on duty and a nameplate was part of that regulation uniform.

The Trump administration later reviewed the past use of consent decrees and made similar decrees harder to enter into going forward when then-Attorney General Jeff Sessions issued a memo that, among other things, required final approval from high-level political appointees for consent decrees including from both the leadership of the Justice Department as a whole (from the deputy attorney general or the associate attorney general) and from the section of the department that litigates the relevant subject matter. The new rules also required that future consent decrees include a sunset provision after which they would phase out. The Ferguson consent decree, however, remains in place.

Will recent events trigger a renewed federal interest in these sorts of activities? Following protests in D.C., both Speaker of the House Nancy Pelosi and D.C. Mayor Muriel Bowser sent letters to President Trump echoing concerns about a lack of accountability for unmarked officers. On June 4, Pelosi requested a full list of the agencies involved in responding to protests in Washington, D.C., and explained that the situation had been made worse when some officers have refused to provide identification and have been deployed without identifying insignias, badges, and name plates. Similarly, Bowser expressed her continued concern that unidentified federal personnel patrolling the streets of Washington, DC[,] pose both safety and national security risks to the largely peaceful protests and that the units that lack identifying insignia were adding to the confusion. Barr responded to Bowsers letter on June 9, writing that forces had been deployed from federal agencies including the U.S. Marshals Service, the Drug Enforcement Administration, the Bureau of Prisons, the FBI, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives. He added, I can assure you that all of the federal and National Guard personnel operating within the District have been doing so consistent with authorities provided under federal law and the law of the District of Columbia.

These concerns are also leading to some legislative activity on Capitol Hill. A group of representatives led by Democratic Rep. Don Beyer introduced the Law Enforcement Identification Act on June 11. The act would require that each federal law enforcement officer or member of an armed force who is engaged in any form of crowd control, riot control, or arrest or detainment of individuals engaged in protest shall at all times display identifying information in a clearly visible fashion. This information would include the officers last name and badge number, the name of the federal agency for whom the officer works, and the officers rank.

Democratic Sens. Chris Murphy and Chuck Schumer have also announced that they are introducing legislation requiring unidentified law enforcement officers and members of the Armed Forces to clearly identify themselves and their agency or service while they are engaged in crowd control or arresting individuals involved in civil disobedience or protests in the United States.

The future of such legislation remains uncertain, likely hinging on Trumps receptivity so long as he is in office. But the recent appearance of the unidentified armed agents on American streets may well spur more demands for requirements that federal officers both display identifying information in certain contexts and disclose their employers when asked. Similarly, at the local level, reformers may advocate that police departments lacking requirements for police to show identifying information should introduce them, and that departments with identification regulations in place should impose harsher penalties for failure to disclose and engage in other forms of oversight for officers who attempt to cover up their badges.

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Can Law Enforcement Officers Refuse to Identify Themselves? - Lawfare

The Cato Institute has been engaged in astrategic campaign to abolish qualified immunity for over two years now. In all that time, the closest Ive seen to an actual defense of the doctrine is a2018 law review article by Professors Aaron Nielson and Chris Walker called AQualified Defense of Qualified Immunity. As the title would suggest, this is hardly arobust defense, but rather alimited, measured argument that the legal case against qualified immunity isnt quite as strong as its critics suggest. The article doesnt really defend qualified immunity as apolicy matter, but argues primarily that the Supreme Court should simply leave any reforms to Congress. And that, Ihave said on several occasions, is the furthest that anyone has been willing to go to defend the doctrine.

Until now.

In the wake of George Floyds death, with both the Supreme Court and Congress considering whether to reform or abolish qualified immunity, the International Association of Chiefs of Police (IACP) has put out ashort IACP Statement on Qualified Immunity. In away, Im quite grateful that theyve done so by setting out such ahollow and misleading defense of the doctrine, the IACP has actually done atremendous service to our campaign, by revealing such how indefensible qualified immunity actually is. Lets go linebyline and explain in detail exactly whats wrong with each argument put forward in this statement:

What is qualified immunity? Qualified immunity provides police officers with protection from civil lawsuits so long as their conduct does not violate clearly established law or constitutional rights of which areasonable officer would have known.

This is, technically, acorrect summary of how the Supreme Court has characterized qualified immunity doctrine. Of course, another way of stating this point is that, even if police officers violate someones constitutional rights, they cannot be held liable unless the victim can show that the police violated clearly established law. And as Ihave discussed many times, clearly established law is an exacting standard, which generally requires wouldbe civil rights plaintiffs to identify not just aclear legal rule, but aprior case with functionally identical facts. Thus, whether avictim can get redress for their injuries turns not on whether their rights were violated, nor even on how serious the violation was, but rather on the happenstance of the fact patterns in prior cases in their jurisdiction.

Further, qualified immunity does not prevent individuals from recovering damages from police officers who knowingly violate an individuals constitutional rights.

This is ahighly misleading statement. The IACP here is presumably paraphrasing the Supreme Courts statement that qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. But whether adefendant knowingly violated the law in this context doesnt actually turn on the defendants personal knowledge or intent; rather, it turns entirely on the defendants presumed knowledge of clearly established law. In other words, courts will not find that adefendant knew they were violating someones constitutional rights unless the victim can show aprior case where someone elses rights were violated in anearly identical manner.

To illustrate this point concretely, here are some examples of police officers who received qualified immunity, and thus were not found to have knowingly violated someones rights:

So yes, the IACP is correct that, according to the Supreme Court, qualified immunity doesnt protect officers who knowingly violate peoples constitutional rights. But thats only because knowingly in this context is defined in reference to the Kafkaesque clearly established law standard.

Qualified immunity is an essential part of policing and American jurisprudence.

This statement is juststupendously wrong. As Professor Will Baude has demonstrated at length and as Cato has argued in many of our amicus briefs on the subject qualified immunity is completely untethered from both the text of Section 1983 and the commonlaw history against which that statute was passed. With limited exceptions, the baseline assumption at both the founding and throughout the nineteenth century was that public officials were strictly liable for unconstitutional misconduct. The Supreme Court itself rejected the application of a good faith defense to Section 1983in a1915 case called Myers v. Anderson. It wasnt until the Court effectively reversed Myers in 1967 (without acknowledging that they were doing so) that we saw anything like qualified immunity. And the clearly established law standard which is the key feature of modern qualified immunity wasnt invented until 1982.

So, on the one hand, we have an atextual legal rule conceived through raw judicial policymaking by the Supreme Court 38years ago. And on the other, we have Chief Justice Marshalls statement in Marbury v. Madison that: The government of the United States has been emphatically termed agovernment of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of avested legal right. Only one of these two contradictory principles is essential to American jurisprudence.

[Qualified immunity] allows police officers to respond to incidents without pause, make splitsecond decisions, and rely on the current state of the law in making those decisions.

This statement is either areckless mistake or an outright lie. It is true, of course, that police officers do have to make splitsecond decisions under dangerous, uncertain, and evolving conditions, and in novel circumstances that may have never arisen before. But that is exactly why our legal standards for determining whether aconstitutional violation occurred in the first place are highly deferential to onthespot police decisionmaking. In Graham v. Connor, the Supreme Court has made clear that the Fourth Amendments unreasonableness standard must allow[] for the fact that police officers are often forced to make splitsecond judgmentsin circumstances that are tense, uncertain, and rapidly evolving and cannot be judged with the 20/20 vision of hindsight. Qualified immunity is entirely unnecessary to ensure that police can make quick, splitsecond decisions, because that protection is already baked into our Fourth Amendment jurisprudence. If we eliminated qualified immunity tomorrow, that protection would remain untouched.

[Qualified immunity] is essential because it ensures officers that good faith actions, based on their understanding of the law at the time of the action, will not later be found to be unconstitutional.

Wrong again. If an officer is truly acting in good faith i.e., arresting someone with probable cause, or using an amount of force they reasonably believe is necessary under the circumstances then they have not broken the law at all. Just because police arrest someone who turns out to be innocent, or conduct asearch that turns up nothing, or use force that with the benefit of hindsight was unnecessary to effect an arrest, doesnt mean the police have violated anyones constitutional rights. The touchstone of most Fourth Amendment questions is reasonableness, and good faith policing decisions, basically by definition, are inherently reasonable. So again, qualified immunity is entirely unnecessary to protect officers in this regard, because good faith actions generally do not violate peoples rights in the first place.

The loss of [qualified immunity] would have aprofoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.

Consider for amoment what it would actually mean if the IACP were correct about this point. According to the IACP, it is absolutely essential that police officers be held to alower standard of accountability then ordinary citizens and all other professions. According to the IACP, most police officers are either so cowardly or so vicious that they will just stop doing their jobs if they are actually held accountable for violating peoples constitutional rights. I, apparently, have far greater faith in members of law enforcement than the IACP does, because Im quite confident that theyre wrong on this account, and that the vast majority of police would continue protecting the public even in the absence of qualified immunity. And if there are some individuals deterred from the profession by the prospect of actual accountability, well, that is afeature, not abug, of our civil rights laws.

Calls to limit, reduce, or eliminate qualified immunity do not represent aconstructive path forward. In fact, these efforts would most certainly have afarreaching, deleterious effect on the policing professions ability to serve and protect communities.

The conclusion to the IACPs statement is not just wrong, but entirely backwards. As we have explained time and time again in many of the Catoled crossideological amicus briefs, qualified immunity harms not only the victims of police misconduct, but the law enforcement community itself,by depriving officers of the public trust and credibility they need to do their jobs safely and effectively. Policing is made far more difficult and far more dangerous when law enforcement lacks cooperation and respect from the communities they police. And there is perhaps no quicker and more effective way to undermine policecommunity relations than by holding police to alower standard than everyone else and regularly excusing egregious misconduct on the basis of lawless technicalities.

For this reason, more thoughtful members of law enforcement like the Law Enforcement Action Partnership have actually joined Catos briefs urging the Court to reconsider qualified immunityand have put out their own policy recommendations calling for an end to the doctrine. In the words of Police Major Neill Franklin (Ret.):Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. Theres no better way to restore community trust. And we cannot do our jobs without trust. Just so.

* * *

In conclusion, the IACPs defense of qualified immunity is, at best, misleading, counterproductive, and shortsighted, and at worst, full of outright misrepresentations. Nevertheless, Icant help but pity whatever poor soul was charged with the task of actually writing thisstatement its hard to defend the indefensible.

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Rebutting the IACP's Spurious Defense of Qualified Immunity - Cato Institute

In accordance with an Idaho Supreme Court decision handed down last year, a charge of felony DUI has been dismissed for a Hailey man due to a violation of his Fourth Amendment protection against unlawful searches and seizures.

Jeremy Sean Matthews, 32, was charged with felony DUI on Dec. 29 after a Sun Valley police officer approached his parked vehicle in the Sun Valley Figure Skating Club parking lot. According to a probable-cause affidavit, the officer was responding to a report of an intoxicated driver on Sun Valley Road around 12:30 a.m.

According to the affidavit, Matthews was detained and transported to the Sun Valley Police Department to give a breathalyzer test. Prior to that, the affidavit says, the officer informed Matthews that he was under arrest for misdemeanor DUI.

Matthews public defender, Justin McCarthy, filed a motion on April 7 to suppress evidence of the breathalyzer test.

The Idaho Supreme Court ruled last year in the case Clark v. Idaho that officers cannot make misdemeanor arrests without a warrant or without witnessing the offense. According to court documents, the Sun Valley officer was not informed of Matthews prior DUI convictions, which raised the alleged offense to a felony, until after the breathalyzer test was conducted.

Because the vehicle was parked and off at the time of the detainment and because the officer did not witness Matthews driving, the misdemeanor arrest was illegal, according to McCarthys argument in his motion to suppress.

Court records indicate that the Blaine County Prosecutors Office filed a motion to dismiss the case on May 20.

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Felony DUI charge dismissed due to illegal breath test - Idaho Mountain Express and Guide