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The novel coronavirus is giving rise to novel surveillance tools. While they can help contain the sweep of COVID-19, the monitoring and categorization of citizens could survive the pandemic with undue invasions of privacy. Legal safeguards are necessary to make sure that doesnt happen.

Innovative hardware and software, rushed into production by profiteers, are aimed at recording and storing peoples physiological functions, locations, and immunity levels. As with any new technology, error rates are high, and the consequences of mistakes will be magnified if used to exclude non-immune people from jobs, housing, courthouses, and public transportation. And unless information is automatically erased or sequestered, medical records could be compiled into databases of personal files that are accessible to law enforcement and immigration authorities.

The virtue of monitoring is self-evident during the crisis; less obvious are the longer-term dangers of doing so. With no treatment or vaccine, self-quarantine, and social distance are primary means of curtailing the spread. If people dont know theyre sickand neither do their fellow workers, diners, shoppers, passengers, theatergoers, sunbathers, gym users, and the likethe disease cannot be contained as public spaces reopen.

This is a matter of security. As seen after 9/11, public acceptance of extraordinary measures soars in the moment, then persists long after the need abates. The Patriot Act, which Congress passed hastily in 2001, created exceptions to legal protections that had been enacted in the 1970s. Government agencies had been violating the Fourth Amendment by spying on antiwar campaigners, civil rights leaders, and other political activists. But its been nearly two decades since the 9/11 attacks, and Congress has applied only minor patches to the holes the Patriot Act tore in the fabric of civil liberties.

The same thing could happen now. The COVID-19 pandemic has spurred particular interest in three areas of data collection: temperature-taking before admitting people to certain places, testing them for the virus, and tracing their contacts and testing them for antibodies to issue immunity passports, a prospect raised by officials in the U.S., Germany, and the U.K.

There are pluses and minuses in each of these areas, according to a series of carefully drawn white papers by the American Civil Liberties Union. They are sensibly balanced and worth summarizing. (Full disclosure: I donate to the ACLU.)

One,temperature checks as a price of admission might pick up infected individuals, but also generate false positives and false negatives. Many with the virus dont have a fever, and many who do, dont have the virus. As Jay Stanley of the ACLU observes, skin temperature can be elevated by sunburn, exercise, menopause, cancer, and other non-COVID conditions. And readings from the skin are less accurate than core body temperature taken by oral, anal, or ear thermometers.

Furthermore, heat emanating from skin cant be reliably determined unless the measuring device is repeatedly calibrated and held close to a person who stays still. Stand-off sensors and drones, which are being advertised as unobtrusive means of checking heart and breathing rates as well as temperature, do not work well when surveying groups of moving individuals, Stanley says. He notes that the Transportation Security Administration (TSA) considered, then suspended, a plan called Project Hostile Intent designed to identify potential terrorists by checking temperatures, heart rates, eye movement, and facial movements. Something of the kind could be revived under the guise of COVID screening, which risks being what Stanley calls public health theater.

Two, contact tracing by real human beings can work, but automated systems use cell phone locations that are imprecise. They also threaten privacy if their location logs are kept in a central database, according to Neema Singh Guliani, the ACLUs senior legislative counsel. She urges that any such tools be voluntary and their use transparent. The information, already collected by some companies, can reveal where a person goes to church, shops, works, attends meetings, visits medical facilities, or has late-night visits with someone outside the home. The results can be so extensive that the Supreme Court ruled in 2018 that under the Fourth Amendment, police need a warrant first. But the Fourth Amendment generally applies only to government, not private, companies.

Since the CDC recommends at least six-foot distances from someone who might be infected, most phone data are inadequate. Connections with cell towers can determine an area or a direction of movement, but not a precise location. A phones GPS receiver can fix a position within six feet only with strong signals from multiple satellites; a more common margin of error is fifteen to fifty feet. Nor can signals usually be picked up inside, so its no good for contact tracing if youre in a store, office, or theater.

China has begun using QR codes that citizens must scan with their phones to get into buses, taxis, subways and some buildings. That tells authorities when someone enters but not who is close by unless combined with Wi-Fi and Bluetooth connections.

The most promising method so far appears to be the Exposure Notification API (application programming interface) developed by Apple and Google to allow state health authorities to offer people an app that would tell them if they came close to an infected person. Use is purely voluntary, according to Jason Cross, writing in Macworld. You would request the states app and could disable it at will. People testing positive would take the initiative to register through the app, but with no identifying information.

If youre not ill and you sign up, and you get close to a virus carrier whos also in the system, your Bluetooth connections will trigger a text giving the date and length of your encounter, but not its location. Cross reports that the information is anonymizedonly a phones Bluetooth code, which changes every several minutes, would be uploaded to a database, with no personal identification. Once a person tests positive, she could authorize the disclosure of her proximity information from the previous fourteen days. Again, no names and no locations. Cross writes that three states so farAlabama, South Carolina, and North Dakotahave decided to try the system. Others might prefer one that identifies participants so health authorities can follow up.

One flaw, the ACLU notes, is that safe contact might be flagged. Guliani reports that in Israel, where security services have used location data to enforce quarantines, a woman who merely waved at her infected boyfriend from the street was told to stay home. If Bluetooth penetrated walls, neighbors in an apartment building might be falsely alerted. So might drivers near pedestrians, although the Apple-Google system would report the durations brevity.

This would work only with widespread enrollment. Yet about 40 percent of Americans over 65 and 30 percent of those earning under $30,000 a year do not have smartphones, Guliani says. And reliance on voluntary cooperation is both bad and good: bad because most people probably wont participate, good because coercive health tactics often backfire, she notes. Individualistic, anti-government impulses run strongly through American society. Witness those protesting stay-at-home orders.

Nevertheless, what seems voluntary can easily become required if landlords, employers, or government officials demand testing or enrollment before renting, hiring, or granting benefits. Current laws probably dont prevent such compulsion.

Three, immunity passports would also be highly problematic for similar reasons. Esha Bhandari, an ACLU senior staff attorney, argues that since antibodies true level of protection from COVID-19 is not yet known, relying on positive tests could produce complacency, endangering both individuals and institutions.

Requiring an immunity certification for work might divide populations between the haves and have-notsthose with antibodies and those without. It could exacerbate racial disparities, Bhandari says, since low-wage employees in jobs that cant be done at home are disproportionately black and Latino. The non-immune might never be eligible for a given job short of contracting and surviving COVID-19 if an immune worker is available to take the slot.

Therefore, immunity passports could also create perverse incentives to contract COVID-19 for people who are the most economically insecure, Bhandari argues. This is not as fanciful as it sounds. It happened in New Orleans during a yellow fever epidemic in 1847. Without immunity to yellow fever, newcomers would have difficulty finding a place to live, a job, a bank loan, and a wife, writes Sarah Zhang in theAtlantic, Employers were loath to train an employee who might succumb to an outbreak. Fathers were hesitant to marry their daughters to husbands who might die. Slaves who had acquired immunity were worth 25 percent more, she says.

Finally, the ACLU worriesas it always doesthat personal information collected in a good cause will be aggregated by corporations and government, in this case forming what Bhandari calls a health surveillance infrastructure that endangers privacy rights. Existing laws probably dont prevent data sharing by private firms, so opportunities are legion for intense discrimination in work, housing, travel, immigration applications, and other areas.

A good deal of legislation is needed to channel data and set limits. Otherwise, once the pandemic passes, Jay Stanley argues, routine and suspicionless collection could make physiological surveillance the norm. We dont want to wake up to a post-COVID world where companies and government agencies think they can gather temperature or other health data about people whenever they want.

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Protecting Public Health and Civil Liberties During a Pandemic - Washington Monthly

(The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.)

Seth W. Stoughton, University of South Carolina

(THE CONVERSATION) The killing of an unarmed black jogger by white residents who assumed he was up to no good is shocking, but it should come as no surprise.

If anything, Ahmaud Arberys death in Georgia on Feb. 23 was predictable: the latest tragic example of the fatal consequences that can occur when private citizens seek to take the law into their own hands.

As a law professor and former police officer, what concerns me is not just that the men who killed Arbery may have thought that their attempted apprehension was legally sanctioned, but that they they would have had good reason to believe that. Most states still retain outdated laws that protect would-be vigilantes.

Vigilant snorers

So-called citizens arrest laws, which allow private individuals to apprehend an alleged wrongdoer, have been around for centuries. Such laws protect people from civil or criminal liability in the event they arrest someone.

In theory, that makes sense. Public safety is everyones responsibility, after all. In practice, however, citizens arrest doctrines have set the stage for tragic, unnecessary and avoidable confrontations and deaths.

Modern citizens arrest rules can be traced back to 1285, when Englands Statute of Winchester directed that citizens not spare any nor conceal any felonies and commanded that citizens bring fresh suit prosecute whenever they see robberies and felonies committed.

Back then, there was no law enforcement as we understand it today no cops, no prosecutors. It was largely left to private citizens to apprehend and prosecute felons.

Prior to the development of professionalized police agencies in the mid- to late-1800s, there was no particular legal distinction between arrests made by private citizens and those made by public officials.

In English cities and larger towns, able-bodied men were expected to take generally unpaid shifts patrolling as night watchmen. Watchmen were often conscripted, and citizens of means could hire someone to serve on their behalf, resulting in a dubious dedication to duty.

This practice extended beyond England to its colonies. An account published in the New York Gazette in the mid-18th century described night watchmen as a parcel of idle, drinking, vigilant Snorers, who never quelled any nocturnal Tumult in their Lives.

In the mid-1600s, the slave codes of the colonial American South declared that controlling the enslaved population was a matter of public responsibility the public here being exclusively white men. Paid and volunteer militiamen were tasked with, as the author Kristian Williams has noted, making regular patrols to catch runaways, prevent slave gatherings, search slave quarters and generally intimidate the black population.

These militiamen did little or nothing to address crime by whites, especially crimes against enslaved or free blacks.

Shopkeepers and security

Today more than 18,000 local, state and federal agencies provide police services in the U.S. But citizens arrest lives on in the form of a patchwork of statutes and common law doctrines.

Most states have shopkeepers privilege laws that provide a defense for business owners and employees who arrest someone for theft so long as they have probable cause. Resisting such an arrest is a crime in some states. Private security guards, similarly, may be authorized to make arrests, at least on the property they are hired to protect. And when bounty hunters capture someone who has jumped bail, the Supreme Court has said the arrest is likened to the rearrest by the sheriff of an escaping prisoner.

Those who are not a shopkeeper, security guard or bounty hunter may still be able to effect an arrest under more generic citizens arrest rules.

In many states, for example, an officer can make arrests for offenses classified as misdemeanors minor crimes typically punishable by up to a year in jail but a private citizen cannot. In other states, including Georgia, a private citizen may make an arrest only if they witness or have firsthand knowledge of an offense. And in some states, an individual may only be able to invoke citizens arrest as a defense to civil or criminal liability if the person they arrested actually committed an offense, while officers are protected if they had probable cause.

But in some ways, private actors have even more leeway to make arrests and use force than law officers because the constitutional rules that regulate searches, seizures, and interrogations do not apply when a private party commits the offending act.

Citizens may have more authority to use force than law officers, too, depending on state law.

In South Carolina, a citizen can use deadly force to effect the nighttime arrest of someone who has US$1 of stolen property in their possession or who flees when he is hailed if the circumstances raise just suspicion of his design to steal.

If an officer in South Carolina did the same, he would likely run afoul of state law or the Fourth Amendment, which the Supreme Court has held requires probable cause that the suspect poses a significant threat of death or serious physical injury.

Race and status

No one knows how many citizens arrests occur in the U.S. every year because the police are usually called and an officer processes the arrest, leaving little evidence of private involvement.

We do know, however, that private arrest authority is too often badly misused by those who believe their higher social status gives them authority over someone they perceive as having lower status. Frequently, this falls along racial lines, as seen in the detention of immigrants by militias at the U.S. border, the attitude of nightwatchmen in gated communities, and in situations like the Ahmaud Arbery case.

Gregory and Travis McMichael say they chased Arbery because they believed he was behind neighborhood burglaries. Arbery, of course, had committed no crime. He was just jogging.

And even if he had committed a burglary, the death would have still been the result of an unjustified act of vigilantism. As the Supreme Court has said, It is not better that all felony suspects die than that they escape. Remembering that as the U.S. considers reforming citizens arrest statutes may go a long way in preventing any further unnecessary deaths.

[Youre smart and curious about the world. So are The Conversations authors and editors. You can get our highlights each weekend.]

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/ahmaud-arberys-killing-puts-a-spotlight-on-the-blurred-blue-line-of-citizens-arrest-laws-139275.

Excerpt from:
Ahmaud Arbery's killing puts a spotlight on the blurred blue line of citizen's arrest laws - Huron Daily Tribune

FORT WAYNE, Ind. (WANE) A lawsuit filed against the Allen County sheriff for pushing a 15-year-old boy will now be heard in federal court.

Allen County Sheriff David Gladieux was charged with misdemeanor battery after an investigation into an altercation involving Gladieux and a teenage boy that took place at the Three Rivers Festival.

The parents of the 15-year-old filed a tort claim notice in August, asking for $300,000 in damages for medical costs, emotional distress, and other damages, according to court documents.

The lawsuit had been pending in Allen Superior Court, but Gladieuxs attorneys filed a notice of removal to U.S. District Court last week. The lawsuit claims that the sheriff violated the teens 4th rights under the Fourth Amendment, which protects citizens from unlawful searches and seizures.

As of this story being published, no hearings or court dates have been set.

Back in September, Gladieux reached a pretrial agreement and was enrolled in the Allen County Prosecutors Office Pretrial Diversion Program. With the agreement, Gladieux was required to pay a $334 fee, complete alcohol and anger management programs, and make a public apology.

According to documents obtained by WANE 15, Gladieux completed 12 hours of a risk management program for alcohol use as recommended. He also completed all requirements of the National Association for Alcoholism and Drug Abuse Counselors, as well as 10 hours of Conflict Resolution for Recovery and Relapse Prevention.

With the completion of the programs, the battery charge will be dismissed. According to Gladieuxs attorney, as long as the sheriff does not get arrested between now and Oct. 18, the charges will be dismissed.

Originally posted here:
Lawsuit filed against Allen County sheriff for injuring teen moved to federal court - WANE

Confirmed Judges, Confirmed Fears is a blog series documenting the harmful impact of President Trumps judges on Americans rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge Eric Murphy cast the deciding vote to allow the use of evidence taken from a man who was asleep when police began to search him without his consent. The April 2020 case is United States v. Wilson.

Very early one morning in Lansing, Michigan, police officers received a call about a man apparently asleep or passed out and sitting alone in a car in what police had labeled a high-crime area. The officers claimed that when they could not rouse him using a flashlight, they became concerned he could be having a medical problem; they then opened the door and shook his right arm until he responded. They said that when they moved his arm, he suspiciously moved it near his waistband, prompting concern over whether he had a weapon. They asked him to stand with his hands raised. He did so and identified himself as Duke Lantrel Wilson and said he had been visiting a friend in the area. An officer saw an open bottle of what appeared to be alcohol in the car, saw Wilson stumble and sway back and forth, and thought he was intoxicated.

When Wilson got out of the car, an officer asked if he could pat him down in order to make sure our safety is fine. The officer claimed that Wilson nodded yes, and then put his hands behind his back as requested. The pat down revealed a pistol, and Wilson was handcuffed and arrested. The officers learned that he had previously been convicted of a felony and was on supervised release. He was charged in federal court with improper possession of a weapon as well as possession of illegal drugs, which they later found in his pocket.

Wilson moved to suppress the evidence against him, contending that he did not consent to the search and that the officers did not have reasonable suspicion to pat him down. The trial judge rejected Wilsons motion, claiming that the totality of the circumstances indicated that he had consented and that in any event, the officers had reasonable suspicion enough to justify their pat down. In a 2-1 decision with Murphy providing the deciding vote, the Sixth Circuit affirmed.

Judge Karen Nelson Moore vigorously dissented, relying in large measure on revealing body camera footage of the polices conduct that the majority did not dispute. As Moore explained, the footage directly contradicts the officers version of the facts concerning consent. The footage unmistakably reveals, Moore went on, that Wilsons nod occurred before the request to pat him down, and that he did not voluntarily put his hands behind his back, but instead that one of the officers grabs Wilsons left wrist and moves it behind his back, before Wilson has an opportunity to act. The claim that Wilson voluntarily consented, Moore concluded, was utterly discredited by the record, and the court should not rely on such visible fiction.

Moore explained that the video footage also contradicted the assertion that the police officers had reasonable suspicion to think Wilson had a weapon after they first roused him. The footage plainly reveals, she noted, and one of the officers admitted on the stand, that when he shook Wilsons arm, Wilson simply returned the arm to its initial, resting position on his lap, and did not suspiciously relocate to his waistband. The facts revealed that the officers did not have reasonable suspicion to search Wilson, Moore concluded, and at the very least, the case should have been sent back to the lower court.

Finally, Moore explained what was wrong with the backup argument of the district court and the majority that Wilsons firearm would have inevitably been discovered even if the arguably unlawful search had not occurred. The case law makes clear, Moore went on, that in order to invoke the inevitable discovery doctrine, it must be proven that an arrest and later search of Wilson would have happened if the initial search did not. The facts made clear, Moore elaborated, that there was uncertainty as to whether the police would have arrested Wilson in the absence of the initial search, since the police were not investigating a crime, but instead claimed to be concerned about his welfare. The bodycam footage showed that the officers repeatedly assured him that he was not in trouble or under arrest or anything like that. At the very least, she concluded, the Fourth Amendment demands a more robust inquiry than simply accepting one officers later testimony that he would have arrested Wilson anyway.

As a result of Murphys deciding vote, however, the polices apparent violation of Wilsons Fourth Amendment rights was upheld, creating a decision that perpetuates a lack of accountability for law enforcement unwarranted search and seizures practices. Such practices disproportionately harm people of color, and could harm others in the Sixth Circuit.

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Trump Judge's Vote Excuses Police Violation of Fourth Amendment in Unlawful Search and Seizure Case: Confirmed Judges, Confirmed Fears - People For...

Credit: Reuters

In the United States, police violence frequently dominates the news cycle. People who believe that police officers have subjected them to excessive force can bring civil suits for violation of their Fourth Amendment rights. But these lawsuits often run up against the legal doctrine of qualified immunity, which excuses officers from liability for official actions that do not violate clearly established law.

On May 8, Reuters published a special report, For cops who kill, special Supreme Court protection, that explains how the Supreme Courts application of the qualified immunity doctrine has decreased the number of cases in which police officers have been held accountable for using excessive force. Lawrence Hurley, Andrew Chung and Andrea Januta, members of the Reuters reporting team, kindly agreed to answer a few questions about this report. Welcome, Lawrence, Andrew and Andrea, and thank you for doing this.

***

Question: When did your investigation into qualified immunity begin? Is there anything behind the timing of the release?

Reuters team: When the Supreme Court declined to hear an excessive force case in April 2017, a line in Justice Sonia Sotomayors dissent from denial caught our eye. In that case, Salazar-Limon v. Houston, she accused the court of handling appeals brought by plaintiffs less favorably than appeals brought by defendants. Justice Samuel Alito wrote his own opinion questioning Sotomayors conclusion, saying she had not shown any data to back it up. We thought it would be interesting if we could get a sense of who was right. With several qualified immunity appeals now pending at the Supreme Court, we worked to get the story out this term so that people better understand what is at stake.

Question: Your report spans multiple pieces and uses various mediums to showcase your data. Could you briefly summarize the key findings of your investigation?

Reuters team: Well, first were not done yet! The story is just the first in a series. In terms of the data findings, there are three key takeaways:

Appeals courts are granting qualified immunity to police much more than they used to. We analyzed hundreds of appeals court rulings in Westlaws database from 2005 to 2019 and found a noticeable spike in grants in the last few years, in light of frequent Supreme Court interventions that favor defendants. In the first three years we looked at, appeals courts granted qualified immunity in 44 percent of cases, but by the last three years we looked at, that number had jumped to 57 percent.

We also discovered that the courts have changed how they are navigating the two-part qualified immunity test. We found that since 2009, when the Supreme Court ruled that judges do not have to answer the question of whether there was a constitutional violation but can instead focus solely on the clearly established prong, courts are indeed increasingly following that route, which is contributing to the overall increase in the rate at which qualified immunity is granted.

Finally, we answered the question that set us out on this journey: Did the Supreme Court grant more cert petitions brought by defendants? Our work built on what Professor William Baude has written about the courts special solicitude for defendants in qualified immunity cases. We identified 121 cases in which cert was sought in an excessive force case involving claims against police in which qualified immunity was the key issue. Defendants and police file at roughly the same rate but the court is 3.5 times more likely to grant cert in a case filed by defendants. So yes, Sotomayor was right.

Question: As you note, your research showed that of the 121 Supreme Court petitions involving qualified immunity defenses from 2005 to 2018 (excluding pro se litigants), cases appealed by officers were 3.5 times more likely to be granted than were cases appealed by civilians. Did you look at any other factors in the content of the petitions that could explain this disparity?

Reuters team: We did look at other factors, as it was crucial that our analysis accounted for differences in the petitions. We performed a great deal of statistical analysis to study the effects of various circumstances of a case such as whether plaintiffs were armed or resisted arrest, or which circuit decided the case and when, as examples. Our findings hold up when we control for these factors. We did similar analysis for our appellate court findings, as well. Also, we spent quite a bit of time ensuring that the question presented directly addressed qualified immunity and officer excessive force. We did not include cases that were not directly on point.

Question: Your team analyzed 529 federal circuit court opinions published from 2005 to 2019 in cases in which police officers accused of excessive force raised a qualified immunity defense. Why did you limit your data to published opinions? Do you have a sense of the general trends in the unpublished opinions?

Reuters team: To gather the data we needed to report this project, we used Westlaw extensively, both in terms of the databases content and its search tools. We limited our data to published opinions for several reasons. First, published opinions set precedent for the circuits and thus carry more weight in shaping the law. Second, many unpublished decisions, in contrast to published ones, have little if any of the legal analysis we needed to properly perform our own analysis, which required a close reading of each opinion. On the other hand, we came across many unpublished opinions in the reporting of the story, including those with dramatic fact patterns or other details that made them indistinguishable from the many published cases we analyzed. We would be surprised if the qualified immunity trends among unpublished opinions did not track those of their published counterparts.

Question: To grant an officer qualified immunity from an excessive force lawsuit, judges apply a two-part test laid out in Saucier v. Katz, in 2001: 1) whether an officer used excessive force in violation of the Fourth Amendment and 2) whether the officer should have known that their actions constituted excessive force based on clearly established court precedent. In 2009, in Pearson v. Callahan, the Supreme Court ruled that lower courts can make a finding on part two of the test without addressing part one. In your report, you address the consequences of this decision:

In the decade since then, the Reuters analysis found, appeals courts have increasingly ignored the question of excessive force. In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence. In effect, the same conduct can repeatedly go unpunished.

Do you think that the unanimous court in Pearson realized that they were creating this closed loop?

Reuters team: Its not clear what the Pearson court thought the real-world implications would be. But the justices certainly believed that freeing lower courts from the rigid order of battle imposed by Saucierjust eight years earlier was necessary. As Alitos reasoning in Pearson makes clear, criticism of Saucier had come from within the court and without. They believed it was costing precious judicial resources, among other problems. And though they explicitly recognized that jettisoning the Saucier framework risked constitutional stagnation, they were willing to take that route. Pearson similarly cannot be viewed in isolation from the courts repeated reminders that qualified immunity is immunity from suit, not just a defense to liability, and its more recent, active policing of the doctrine, perhaps best explained by Alitos footnote in the San Francisco v. Sheehan case from 2015, which emphasized qualified immunitys importance to society as a whole.

Question: Sotomayor has called for the court to reconsider its qualified immunity doctrine. In a 2018 dissent in Kisela v. Hughes, Sotomayor said that the court has created an absolute shield for police officers accused of excessive force. Do the numbers in your report back up her statement?

Reuters team: The overall uptick in appeals courts granting immunity in the last couple of years appears to show that recent Supreme Court rulings in favor of defendants have had an impact. Although, while its certainly harder for plaintiffs to overcome immunity than it used to be, many still do.

Question: In 2017, Justice Clarence Thomas wrote in his concurrence in Ziglar v. Abbasi that in the decisions following Pierson [v. Ray], we have completely reformulated qualified immunity along principles not at all embodied in the common law. Thomas has suggested that the court should find an appropriate case to reconsider the doctrine. Do Thomas and Sotomayor have the same vision for the future of qualified immunity?

Reuters team: The fascinating thing about criticism heaped upon qualified immunity by Thomas and Sotomayor, in many ways ideological opposites, is that it reflects the breadth of a growing number of scholars, lawyers and jurists who also denounce the doctrine. Thomas approach is different from Sotomayors in that his concern in Ziglar seemsto be that the court has gone off the rails of common law in shaping the contours of the defense, while hers is that the courts current approach to qualified immunity is tantamount to an absolute shield that can tell police officers to shoot first and think later. Where they end up, however, might indeed be the same, as both might be open to revisiting the doctrine itself, a question that some of the pending cert petitions, like Baxter v. Bracey and Corbitt v. Vickers, present. Other cases might lend an opportunity to refine the doctrine in either direction, such as Kelsay v. Ernst, which is asking specifically about nonthreatening, nonresisting subjects.

Question: Decisions by the Supreme Court have far-reaching consequences that are sometimes hard to quantify. Do you have your eye on another project like this?

Reuters team: As we mentioned above, were not done with qualified immunity yet!

Posted in Featured, Academic Round-up

Recommended Citation: Katie Bart, Ask the author: Reuters on the consequences of qualified immunity for police officers, SCOTUSblog (May. 15, 2020, 1:11 PM), https://www.scotusblog.com/2020/05/ask-the-author-reuters-on-the-consequences-of-qualified-immunity-for-police-officers/

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Ask the author: Reuters on the consequences of qualified immunity for police officers - SCOTUSblog