Legal Update – Qualified Immunity and Miranda

The following are from The Informer, a publication of the Federal Law Enforcement Training Center (FLETC):

Qualified Immunity – The Contract between Law Enforcement and the Courts

Tim Miller
Attorney Advisor and Senior Instructor
Office of Chief Counsel / Legal Division
Federal Law Enforcement Training Centers
Glynco, Georgia

There is an implied contract between law enforcement and the federal courts that goes like this:

We, the officers, promise to use constitutional force. And we, the courts, promise to put officers on notice about what is not. Absent a use of force that was clearly established as unconstitutional at the time the officer used it, the court will dismiss the case against the officer.1

Whether that contract was broken, and by whom, is one of the issues the Supreme Court will answer this year in San Francisco v. Sheehan.2

Teresa Sheehan lived in a group home for people suffering from mental illness. Sheehan was not taking her medications and her mental health had deteriorated to the point where she was a threat. “Get out of here!” Sheehan shouted after a social worker entered her room, “You don’t have a warrant! I have a knife and I’ll kill you if I have to.” The social worker relayed the threat to the police, and two officers were dispatched to the home to take Sheehan into custody for 72-hours of observation and treatment. When the officers arrived, they knocked on the door to Sheehan’s room, announced themselves as police, and entered, but received the same greeting as the social worker: “Get out!” Sheehan was not kidding, either. Sheehan indeed had a knife. Sheehan grabbed the knife, raised it over her head, and came forward repeating: “I’ll kill you!” The officers backed out and closed the door behind them. With Sheehan inside her room, alone, and the officers outside in the relative safety of the hallway, they had options. One was to wait. Maybe back-up could safely talk her out of the room. The other was to go back inside and take Sheehan into custody themselves. The officers chose the second option. When the officers opened the door to Sheehan’s room, she predictably charged at the officers with the knife. When pepper spray did not stop the threat, the officers shot Sheehan. Sheehan survived, miraculously, and this lawsuit ensued.

Sheehan sued the officers for violating her Fourth Amendment right to be free from an unreasonable search and seizure. Sheehan claimed the entry into her room, or search was unreasonable because the officers did not have a warrant, but even if the officers’ entry was reasonable, the force used to seize her was not. The officers requested qualified immunity – the implied contract that the court will dismiss the case, absent a violation of a clearly established constitutional right.

As far as the search was concerned, the Ninth Circuit Court of Appeals held the officers lived up to their end of the bargain. Specifically, the court concluded exigent circumstances excused the requirement to first obtain a warrant before entering Sheehan’s room. In addition, the court held the use of deadly force to seize Ms. Sheehan – – viewed [at least] from the standpoint of the moment of the shooting – – was also reasonable. However, the Court still refused to grant the officers qualified immunity and dismiss the case because of the “provocation” doctrine. In the Ninth Circuit, officers may be liable for an otherwise reasonable use of deadly force if the officers intentionally or recklessly provoked the deadly confrontation. Finding that the officers may have done exactly that, the Ninth Circuit would have sent the case to trial3 – – had the officers not appealed, and the Supreme Court granted certiorari.

The Supreme Court will decide whether it was clearly established law that even where an exception to the warrant requirement applied, an entry into a residence could still be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within.4 Clearly established law – – what does that mean? Sheehan’s right not to be seized by gunfire must be sufficiently definite so that any reasonable officer would know, that shooting Sheehan under the circumstances violates the Constitution! Existing precedent must have placed the question beyond debate.
Qualified immunity is designed to protect all but the plainly incompetent or those who knowingly violate the law, which is not exactly a noble standard to live up to, but has a purpose in situations where police officers are likely to face public ridicule for not acting, and personal liability when they do – – especially where the suspect is predictably, unpredictable.

Obviously, the Ninth Circuit believed the law was clear. The court stated, “If there is no pressing need to rush in, and every reason to expect that doing so would result in Sheehan’s death or serious injury, then any reasonable officer would have known [that violates the Constitution].” As existing precedent, the court cited its 1994 decision Alexander v. City and County of San Francisco.5 In Alexander, officers encountered a mentally disabled man who had barricaded himself inside his house after local health officials obtained a forcible-entry warrant to inspect his home for a sewage leak. After negotiations failed, officers ended a one hour standoff by storming the house. When the man fired a gun at the officers, the officers returned fire, killing him. In the subsequent lawsuit, the officers were denied qualified immunity. After comparing the facts in Alexander to the facts in Sheehan, the court believed the facts in Sheehan were more troubling. In Alexander, the court noted that before attempting entry, the officers waited for back-up and attempted negotiations with the man inside the house.

But when … can the officers go in? After two-hours, three hours? Is the law really clear? Making it less so is a circuit-split of opinion about when deadly force is not constitutionally excessive. Some circuits conduct the same two-part inquiry as the Ninth Circuit does.6 Other circuits simply ask whether the force was reasonable at the moment the officer used it – making attempts to negotiate, irrelevant.7 Had Sheehan and Alexander occurred in a reasonable-at-the-moment circuit, their cases likely would have been dismissed.

The Supreme Court will hear oral arguments on March 23, 2015. Predictions? Two are certain to come true. First, cases like Sheehan will happen again. Research on mental health epidemiology shows that mental disorders are common throughout the United States, affecting tens of millions of people each year, and that, overall, only about half of those affected receive treatment.8 Second, there will be no winners in Sheehan. There never are in a case where a concerned citizen calls the police for help, and the police are forced to shoot the person needing it. The Supreme Court will simply decide whether to dismiss the case. Winning will be left for training – – training that develops the file in the brain that recognizes when to act, and when to wait.

Footnotes:

1 This is qualified immunity, the officer’s defense to standing trial. An officer can get qualified immunity two ways. First, considering the facts in a light most favorable to the party suing the officer, do the facts alleged show the officer’s conduct violated a constitutional right? If there is no constitutional violation, the case is dismissed. Assuming there was a violation of a constitutional right, the court must proceed to the second element. Was the right clearly established by law? If not, the case is dismissed. The court is not required to decide the elements in any particular order. The court may simply find the law was not clearly established, and save the potentially more difficult constitutional question for another day. For an officer to be denied qualified immunity, the court must find the force was not constitutional and the law was clearly established; in short, that the officer violated a clearly established constitutional right.
2 The Supreme Court will answer two questions in San Francisco v. Sheehan, 743 F.3d 1211, cert. granted, 135 S.Ct. 702 (2014). However, only one is discussed here: Whether the officers were properly denied qualified immunity. The other is whether Ms. Sheehan can sue the City of San Francisco under the Americans with Disabilities Act.
3 There is a caveat that goes along with qualified immunity, a defense, which if granted, would deny Sheehan her day in court. The court must accept Sheehan’s version of what happened. Considering the facts in the light most favorable to Sheehan, the Ninth Circuit believed the officers may have provoked the deadly encounter. Sheehan was in her room, alone; she did not pose an immediate threat to herself; the officers were outside in the safety of the hallway; and, the home had been evacuated so that Sheehan could not harm anyone else. The officers disagreed with some of those facts; however, the Ninth Circuit was required to accept them. A trial would require Sheehan to prove her allegations; however, by a preponderance of the evidence.
4 To be clear, the issue is not whether the officers could enter Sheehan’s room, or whether Sheehan posed an immediate threat of serious bodily harm when they did. It was how the officers carried out the search and seizure that caused the Ninth Circuit to deny the officers qualified immunity. “What did you think was going to happen after you forced entry into her room?” This would be the argument by Sheehan’s lawyer at trial. Regardless of whether an emergency existed, officers are still required to carry out the search and seizure in a reasonable manner, without the use of excessive force. Even still, is the law clear that an otherwise lawful entry is unlawful, if the person inside promises to attack?
5 29 F.3d 1355 (9th Cir. 1994).
6 See Young v. City of Providence, 404 F.3d 4, 22 (1st Cir. 2005) and Sevier v. City of Lawrence, 60 F.3d 695, 696 (10th Cir. 1995).
7 See Nimely v. City of New York, 414 F.3d 381, 390 (2nd Cir. 2005)(an officer’s decision to use deadly force depends on the officer’s knowledge of the circumstances immediately prior to and at the moment) and Elizondo v. Green, 671 F.3d 506 (5th Cir. 2012).
8 That National Institute of Mental Health: http://www.nimh.nih,gov

————————————

Fifth Circuit
United States v. Wright, 2015 U.S. App. LEXIS 1685 (5th Cir. Tex. Feb. 3, 2015)

Officers executed a search warrant at Wright’s home in connection with a child pornography investigation. When the officers located Wright, they allowed him to get dressed and then escorted him to an officer’s unmarked police car, which was located in the parking lot of a church approximately thirty feet from Wright’s home. While walking to the car, an officer told Wright that he was not under arrest, and that he was free to leave at any time. Wright sat in the front passenger seat of the car, and was not handcuffed or otherwise restrained. At the beginning of the interview, an officer advised Wright of his Miranda warnings and again told Wright that he was not under arrest, and that he was free to leave. During the interview, Wright made numerous incriminating statements to the officers.

Wright moved to suppress his incriminating statements, arguing that on three occasions during interview, he had unambiguously requested his right to counsel.
First, for an individual to have a Fifth Amendment right to counsel under Miranda, that individual must be subject to a custodial interrogation. Second, a suspect is “in custody” for Miranda purposes when he is placed under formal arrest or when a reasonable person in the suspect’s position would have understood the situation to constitute a “restraint on freedom of movement of the degree” associated with a formal arrest.

Here, the court never decided whether Wright ever unambiguously requested counsel under Miranda because the court held Wright was not in-custody for Miranda purposes when he made the incriminating statements to the officers. First, the interviewing officer on at least two occasions told Wright that he was not under arrest, and that he was free to leave. Second, there was no evidence that Wright was physically restrained during the interrogation, which took place near Wright’s home, in a car subject to public scrutiny. Finally, the transcript of the interview, and the cooperative tone throughout it, indicated the conversation was as much an opportunity taken by Wright to tell his story to the officer as it was an opportunity for the officer to obtain information from Wright. Consequently, as he was not in custody for Miranda purposes, the court held Wright’s statements to the interviewing officer were admissible against him.

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