Does New Law Take Time to Become "Clearly Established"?

A fascinating question about qualified immunity law.

|The Volokh Conspiracy |

I realize that qualified immunity is a pretty unpopular doctrine, especially here at the Volokh Conspiracy. But for readers willing to accept existing Supreme Court law as a given, the Third Circuit's new decision in Bryan v. United States asks a really cool question: Are officers expected to know instantaneously of new legal rulings that clearly establish the law? Or is there some kind of allowed time delay before an officer is held liable for not conforming his conduct to a new decision? Bryan takes the latter path, and I thought readers might be interested in knowing more about it.

I. The Facts

Here's how the issue arose. On August 31, 2008, a group of travelers went on an eight-day Caribbean cruise. They started in Puerto Rico, went to some foreign ports such as Antigua and Barbados, then went to St. Thomas in the U.S. Virgin Islands. They returned to Puerto Rico on September 7, 2008.

But the trip wasn't uneventful. Customs officers suspected that the travelers were smuggling drugs. On September 5th, a customs officer in Puerto Rico, Officer Ogg, decided that the travelers' cabins should be searched. The next day, September 6th, another group of customs officers searched the cabins when the cruise ship was docked at St. Thomas. No evidence was found.

Here's the interesting part. The travelers sued in the federal district court in the Virgin Islands, arguing that the search of their cabins in St. Thomas violated the Fourth Amendment. They based their lawsuit on a Third Circuit ruling handed down September 4th, 2008, just two days before the search occurred. The new ruling, United States v. Whitted, 541 F.3d 480 (3d Cir. 2008), involved nearly identitical facts as the plaintiffs' case. A prior search of cabins had occurred on the exact same cruise ship, also while docked in St. Thomas, also for evidence of drugs. Whitted held that searches of cruise-ship cabins docked in the Virgin Islands after a trip to foreign ports requires reasonable suspicion under the Fourth Amendment. This was the first ruling of its kind in any federal circuit court.

Under qualified immunity doctrine, officers are bound by "clearly established" law. So here's the question. How long after a decision is handed down does law become "clearly established"? Was the September 4th ruling "clearly established" in Puerto Rico on September 5th, when the officer in Puerto Rico concluded that the cabins should be searched? Was it "clearly established" in St. Thomas on September 6th, when the officers boarded the ship and searched the cabins?

II. The Ruling

In an opinion by Judge Roth, the Third Circuit ruled that the Whitted decision was not yet clearly establlshed and that therefore the officers were entitled to qualified immunity:

Until September 4, 2008, there had been no ruling in the Third Circuit as to what constituted a "routine search" [for which no cause is needed under the Fourth Amendment] As for Officer Ogg, he was located in San Juan, Puerto Rico, in the First Circuit. There had not been any such ruling in the First Circuit, and the First Circuit courts would not be bound by Whitted, a Third Circuit case.

When such a ruling is made, a ruling which affects the procedures used in border searches, it is beyond belief that within two days the government could determine what was "reasonable suspicion" and what new policy was required to conform to the ruling, much less communicate that new policy to the CBP officers. We can only conclude that as of September 5, 2008, it was not clearly established in either the Third Circuit or the First Circuit that a search of a cruise ship cabin at the border had to be supported by reasonable suspicion. Accordingly, under the circumstances that Officer Ogg confronted, he did not violate clearly established law by entering lookouts for the three passengers the day after we issued our decision in Whitted. He is entitled to qualified immunity.

We conclude that the same situation applies to the St. Thomas officers. On September 6, the Whitted standard was no more clearly established than it had been the day before. Moreover, if the St. Thomas officers had been aware of Whitted, they would have known that Whitted held that unsubstantiated information from TECS can establish reasonable suspicion.

For these reasons, we conclude that the Whitted standard was not clearly established in the Third Circuit, or the First Circuit, on September 5 or 6. Within one or two days, neither Officer Ogg nor the St. Thomas officers could reasonably be expected to have learned of this development in our Fourth Amendment jurisprudence. At that time, it would not have been beyond debate that, absent reasonable suspicion, the Fourth Amendment prohibited the search of the travelers' cabins. For purposes of qualified immunity, a legal principle does not become "clearly established" the day we announce a decision, or even one or two days later.

This holding is informed by the overarching aim of the qualified immunity doctrine to insulate from civil liability "all but the plainly incompetent or those who knowingly violate the law," and the need to ensure that the relevant legal principle is framed with particularity and settled "beyond debate." We are, however, deciding only this case. For that reason, we decline to draw a bright line demarcating when a legal principle becomes "clearly established." We leave that exercise for another day.

III. A Few Thoughts

This is a fascinating case, and I'm not sure where I come out on it. Here are a few tentative thoughts.

1. Let's start with the general principle. The idea that a decision doesn't become "clearly established" the instant it is handed down strikes me as quite plausible, although not obviously correct. Qualified immunity is largely about personal culpability in either failing to know or ignoring the law. If it was very difficult to know the law at the time the search occured, a person isn't culpable for not knowing it. This was easier to see in the pre-Internet era. If you were a law nerd who wanted to know the very latest decisions, it would take you a week or so to get summaries in U.S. Law Week or to get copies of the latest slip opinions sent your way. In that environment, even a hyper-vigilant lawyer might not know about a decision that came down yesterday or two days ago.

Even today, it takes a hyper-vigilant legal nerd at least some non-zero amount of time to digest new rules. Say a circuit usually posts new opinions in the afternoon between 2pm and 3pm. Imagine that it posts a particularly important new decision one day at 2:07pm. We wouldn't expect everyone to know the new rule of the new decision at exactly 2:07pm. Imagine two officers are out in the field about to conduct a search. Officer Bob searches at 2:06pm, and Officer Stan searches at 2:08pm. A culpability-focused approach would plausibly treat those two searches the same way, even though Bob technically searched before the opinion was posted and Stan technically searched after it was posted.

2. In terms of precedent, I would think that Messerchmidt v. Millender provides at least some support for the idea that an officer isn't instantaneously reponsible for knowing new legal decisions. Messserschmidt involved a lawsuit against officers for executing a warrant that the plaintiffs claimed lacked probable cause. The Ninth Circuit agreed with the plaintiffs and ruled that qualified immunity did not apply. The Supreme Court reversed, ruling that qualified immunity attached in part because the officers had asked their bosses and some prosecutors to review the warrant application and they has said it was fine. From the opinion:

[T]he fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate provides further support for the conclusion that an officer could reasonably have believed that the scope of the warrant was supported by probable cause. . . . Messerschmidt . . . submitted the warrant application for review by Lawrence, another superior officer, and a deputy district attorney, all of whom approved the application without any apparent misgivings. Only after this did Messerschmidt seek the approval of a neutral magistrate, who issued the requested warrant. The officers thus "took every step that could reasonably be expected of them." Massachusetts v. Sheppard, 468 U.S. 981, 989, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). In light of the foregoing, it cannot be said that "no officer of reasonable competence would have requested the warrant." Malley, 475 U.S., at 346, n. 9, 106 S.Ct. 1092. Indeed, a contrary conclusion would mean not only that Messerschmidt and Lawrence were "plainly incompetent," id., at 341, 106 S.Ct. 1092, but that their supervisor, the deputy district attorney, and the magistrate were as well.

The Court of Appeals, however, gave no weight to the fact that the warrant had been reviewed and approved by the officers' superiors, a deputy district attorney, and a neutral magistrate. . . .But by holding in Malley that a magistrate's approval does not automatically render an officer's conduct reasonable, we did not suggest that approval by a magistrate or review by others is irrelevant to the objective reasonableness of the officers' determination that the warrant was valid. Indeed, we expressly noted that we were not deciding "whether [the officer's] conduct in [that] case was in fact objectively reasonable." Id., at 345, n. 8, 106 S.Ct. 1092. The fact that the officers secured these approvals is certainly pertinent in assessing whether they could have held a reasonable belief that the warrant was supported by probable cause.

I find this passage from Messerschmidt pretty troubling, as it can let an agent rely on others enough that no one is accountable for even pretty clear legal violations. But whether I like it or not, the case seems to say that it's not the officer's fault if he gets bad legal advice from higher-ups. And if getting bad legal advice is relevant to whether he gets immunity, then I would think it's also relevant if an officer, through no fault of his own, isn't aware of a brand-new decision. We expect officers in the field to find out about new legal decisions from higher-ups and prosecutors. If that's right, not yet knowing of a new legal decision seems something like being given bad legal advice from higher-ups and prosecutors in Messerschmidt.

3. Of course, if you say that it takes time for an opinion to become "clearly established," you then need a framework for figuring out how much time that is. This is tricky. The Third Circuit seems to have something like a "reasonable amount of time to be trained" approach, which seems to look at how long you might expect before an officer was told of the law. Another possibility would be an "actually was told of the new ruling" standard, Cf. Messerschmidt. Or maybe you combine them. Maybe you say that an officer is charged with knowing the law if either he was told about the ruling or he failed to take reasonable steps to become aware of the law that would have otherwise informed him of the new ruling.

Another approach might consider whether the new ruling was final. The day after a new circuit decision is handed down, you don't yet know if it will stay on the books. Maybe the circuit will vacate the ruling and rehear the case en banc. Maybe the panel will withdraw or amend the opinion. Maybe the Supreme Court will grant cert. One approach would be to say that new circuit court decisions aren't "clearly established" until the time for further review has passed.

On the other hand, maybe the difficulty of identifying an answer to "how long is long enough" suggests that courts shouldn't try to answer that question at all. Maybe a bright-line rule that holds officers immediately responsible for new law is best. It would also have the benefit of encouraging law enforcement to alert officers to new rulings immediately. And although it might be unfair in a few cases in theory, it's fair to wonder how often this issue actually comes up.

4. There are also some neat issues raised in Bryan about the liability for the officer in the First Circuit for following a ruling in the Third Circuit. It makes sense to say that the law of another circuit ordinarily won't clearly establish the law governing him. But I wonder if that approach makes sense in the rare situation when an officer is engaged in the planning of a search that the officer does or should know will occur in the other circuit. Does it matter if the officer is someone who usually conducts searches in his own circuit, or if he often participates in searches in many circuits? The Third Circuit didn't have to get into that level of detail in Bryan, of course. But I think there are some interesting issues raised by cross-circuit searches that may come up in other cases.

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133 responses to “Does New Law Take Time to Become "Clearly Established"?

  1. The law is clearly established the moment the opinion is published. Whether it is widely known about is a different question than whether it has been clearly established. Inventing a grace period for how long a ruling can be law (only for law enforcement – not the general public) is nothing more than digging a deeper hole because of the Qualified Immunity problem.

    What grace period is the public offered before being required to conform to new laws once the law has been implemented?

    None.

    To a regular citizen, it doesn’t even matter if they know about a law’s existence or otherwise. Violate it, and you could be charged for doing so, and potentially face fines or even subsequent imprisonment.

    If we are expected to face criminal punishment the moment a law goes into effect whether we know of its existence or not, then it is unreasonable to give a grace period to police officers to not know what has been ruled to be a violation of our civil rights and/or the Constitution.

    1. Exactly. New Jersey turned any gun owner with a 15 round magazine into felons overnight. How many of them knew about the law?

      1. “New Jersey turned any gun owner with a 15 round magazine into felons overnight.”

        Ahem. Into uncharged, accused felons. Felons have convictions.

    2. So in your opinion, 15 seconds after the Supreme Court announced the opinion in Miranda v Arizona in 1966, every police officer in the United States should have known that they were now required to do this new thing. Any suspects arrested that day had to be released, since they weren’t read their rights. That makes sense to you?

      1. At the moment the Supreme Court accepted the Miranda case, every police officer should be on notice to watch intently for the result.

      2. Pardon me? Are we talking about 1966 here, or are we playing with strawmen?

      3. “Any suspects arrested that day had to be released, since they weren’t read their rights.”

        Arrests and reading of rights are not linked. Not being read your rights when you’re arrested has exactly zero effect. Not being read your rights when you are arrested does not mean that you are magically not arrested, or that the arrest is somehow invalidated.

        Miranda requires the reading of rights prior to custodial interrogation, IF the results of the interrogation are to be used in court.

      4. It’s only fair. Ordinary people are certainly at risk 15 seconds after SCOTUS expands liability for some offense.

        I’d even argue that ordinary people can be at risk *before* a court announces a test under our common law system.

      5. For the same violation on the same ship under the same circumstances by the same Federal department? Or course they should have known!

        1. “Or course they should have known!”

          Hold up. Didn’t you learn from the opening speech on Law & Order that the law enforcement and prosecutors are separate? The cop does the search and (maybe) makes an arrest, and a year later (maybe) appears in court to testify about it. But why would the cop know what the legal rulings in the case were? The prosecutor knows, but the cops aren’t even in the room when the ruling comes along.

      6. Sure.

        Just like 15 seconds after the DEA puts a substance on the Schedule everyone is supposed to know about it and have gotten rid of any of it they have on hand.

        15 seconds after a ‘high capacity’ magazine ban goes into effect everyone who is caught with one will be arrested – because its incumbent on all ‘civilians’ to know the law in detail, but for some reason law enforcement gets full protection of their ignorance?

    3. “What grace period is the public offered before being required to conform to new laws once the law has been implemented?

      None.”

      Hold on. If a city decides to change the speed limit on a piece of road, it is a defense that the new signs haven’t been posted yet. You can get similar effects with regard to hunting on private property… if the ownership of the property changes, it isn’t effective as soon as the county recorder records the change in ownership.

    4. “If we are expected to face criminal punishment the moment a law goes into effect whether we know of its existence or not?”

      And we are:

      The Chicago Tribune had an article about two men who were arrested in Chicago for carrying a firearm. The arrests were mere minutes apart. One man was charged with a misdemeanor and made bail, the other was charged with a felony and held without bail.

      Why the different outcomes for the same offense? The first man was arrested several minutes before midnight on December 31st, the second man several minutes later on January 1st. A new law in Illinois took affect in 1996 changing the penalty for carrying a firearm from a misdemeanor to a felony.

      1. You don’t seriously think the governor and legislature were working on the 31st .. that law was passed, signed and published months in advance.

        1. The law was passed several months earlier but it didn’t take effect until January 1, 1996.

          That’s how state laws often work, they don’t become law when they’re passed, they become law at the start of the next year.

          How can you not know this?

  2. Reason #45321 why Qualified Immunity is a bad policy.

  3. So under Messerschmidt if a police officer asks a prosecutor if something is legal and the prosecutor says it is, it qualifies, and the prosecutor has absolute immunity…isn’t this basically carte blanche?

    1. He was only following orders – – – – –

    2. No, that’s not what Messerchmidt held. Most of the focus in Messerchmidt is on the magistrate who approved the warrant, not just a supervisor responding to a question, and Messerchmidt does not give officers cart blanche if the magistrate’s opinion is objectively unreasonable. In Messerschmidt, a known gang member fired a sawed-off shot gun at his ex-girlfriend five times as she drove off in her car. The police sought a search warrant for the house where his ex-girlfriend believed he was staying looking for all firearms and evidence of gang paraphernalia. The magistrate approved the warrant, which the gang member and the owner challenged as overbroad. (While the validity of the warrant isn’t at issue, based on the discussion in the opinion I suspect that the Court would have upheld it had it been before them) As the Court puts it, the question is “whether the magistrate so obviously erred that any reasonable officer would have recognized the error.”

      So if the police officer asks a question that a reasonable officer should know the answer to, the prosecutor’s response doesn’t provide cover.

  4. ” Say a circuit usually posts new opinions in the afternoon between 2pm and 3pm. Imagine that it posts a particularly important new decision one day at 2:07pm.”

    Serious question: How is this resolved in regards to people who AREN’T drawing a government paycheck? Because I can’t see any good reason why the rule shouldn’t be identical for police and the policed.

    1. Almost all criminal legislation has an effective date that is months in the future.

      1. What does that have to do with when court rulings come down?

  5. “Are officers expected to know instantaneously of new legal rulings that clearly establish the law?”

    That’s not a cool question. It’s ought to be an irrelevant question. It shouldn’t matter whether or not the officers are aware of the new legal rulings. After all, for those of us who aren’t LEOs, ignorance of the law is no excuse. There is no rational basis for courts excusing cops for not knowing the law when they won’t give the same to defendants who aren’t cops.

    1. But see MPC 2.04(3)(a) (excusing people from not knowing the criminal law when “the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged”)

      1. So, you get a pass for not knowing about the law if it was theoretically impossible for you to have known of it. That’s nice, I suppose.

        It still ignores that it’s humanly impossible as a practical matter to know of more than a fraction of the laws that might apply to you.

      2. I believe this is the passage you are referencing:

        2.04 Ignorance or Mistake.
        (3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

        (a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or

        (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

        Since an effort a few years ago, by legal experts, failed to identify all the laws of the land shouldn’t MPC 2.04(3)(a) be more common in practice than appears to be the case? Does the average citizen know how to find all the laws governing them? Does it even make sense to expect an average citizen to know and understand all the laws governing them considering the obfuscation and legal jargon used in many laws?

        1. 2.04(3)(a) really only provides a defense against secret criminal laws or regulations, but there are other mechanisms at work that have softened the common law rule in some situations. For example, tax law is particularly complex so the criminal tax statutes require “wilful” violation where

          Willfulness, as construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty.

          from Cheek v. US 498 U.S. 192 (1991) (though the complexity of tax law wasn’t the issue in Cheek, it was whether his jury could consider a defense that he lacked wilfulness because he believed that income taxes are unconstitutional)

      3. “But see MPC 2.04(3)(a) (excusing people from not knowing the criminal law when “the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged”

        Forgetting for a second that we’re just plunging further down the QI rabbit hole, presumably this decision would have been published on the third circuit’s website and available to the officers who conducted the illegal search.

      4. “But see MPC 2.04(3)(a) (excusing people from not knowing the criminal law when “the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged””

        Sounds like a reasonable solution. No QI for the offers after the decision comes down, but they can use this as a defense in any subsequent criminal trial.

      5. “statute or other enactment defining the offense”

        In this case the statute “defining the offense” – civilly anyway – is the federal statute allowing victims of constitutional violations to sue the violator. I don’t have the legislative history at my fingertips, but IIRC the statute (as far as state officials) was first passed in the 19th century, and the 4th Amendment on which this suit was based was passed in the 18th century and even then was merely declaratory of the law that already existed.

        How much time must we wait before expecting cops to know they can’t make unreasonable searches and seizures?

        1. If they’re not sure of their authority, the answer isn’t to make a warrantless seach and hope they can get away with it, the answer is to get a warrant.

          1. Really, isn’t that one of the good things about warrants from the cops’ perspective – it clarifies that, yes, they’re allowed to make the search they want to make.

            They can get permission in advance with a warrant or they can act without a warrant and hope the court and jury thinks it’s reasonable. That sounds fair.

      6. How many states have enacted the Model Penal Code unmodified? I would guess zero.

  6. and has not been published or otherwise reasonably made available prior to the conduct alleged

    This seems like a pretty important qualification though. As soon as the law is published, the excuse vanishes. Nothing like “and the actor has not yet had a reasonable opportunity to educate himself as to the details of the new enactment.”

  7. The law is what police departments are about.
    And a new law shall be read by prosecutors and police chiefs before that law reaches its statutory start date. Those individuals are responsible to develop appropriate training and communication to disseminate to the rank and file of the police force.
    So yes, all police are required to know the law the day it becomes operative. If they don’t, someone in the police department is responsible. The only thing that remains is to determine who gets punished, not if someone gets punished.

    1. But this isn’t a law that was published in advance. It was a Circuit Court decision that only “came out” a day before.

      By contrast, statutes are indeed published a bit in advance of becoming effective.

  8. Relying on “advice from higher ups” sounds a lot like the Nuremberg defense to me…

    1. The Nuremberg defense failed roughly on the basis that the defendants had to have known they were doing wrong anyway, regardless of being told by superiors that it was ok to run death camps and commit atrocities.

      “You knew it was wrong even if you didn’t know it was illegal” is a pretty long standing basis for ignorance of the law not being an excuse. The real problem is the legal system declaring that ignorance of the law isn’t an excuse even in the case of crimes that aren’t obviously wrong to have committed.

      1. IMO, people should know that breaking into someones private property without their consent in order to search for an unauthorized plant is wrong, regardless of being told by superiors that it’s okay to beat and imprison people for possessing unauthorized plants.

        1. Well, sure, a lot of the things the courts grant (un)qualified immunity for are obviously wrong, and no cop with an intact conscience or even the most basic grasp of the law would have thought otherwise.

          The practice of (un)qualified immunity is a long ways from the theory, and everybody knows it.

  9. Is there any practical reason that officers can’t be notified of new laws or rulings within a day? Many heavily regulated industries (like finance) work this way. The difference being that immediate compliance for police is necessary to prevent rights being infringed.

    1. “Is there any practical reason that officers can’t be notified of new laws or rulings within a day?”

      Sometimes people take vacations?
      Seriously, developing training materials takes time, and effort, and money. If a department is short of any of these, it will show up first in the training budget.

      Second, note that many of these new laws and rulings aren’t even fully understood by trained lawyers. So if the department’s lawyer makes a mistake in what they tell the training staff…

  10. I don’t like the “clearly established” qualified immunity exception as much as the next guy around here, but I think given the current jurisprudence this is correct. Some circuits have stated that law enforcement must have “fair notice” that they are violating settled law. I simply don’t see how a panel decision (no discussion on if the panel also released mandate on the day of decision or if it was held pending rehearing/cert petitions) could give front line law enforcement (who are generally non-lawyers) notice that actions which were regarded before as constitutional all the sudden were civil right violations.

    Now this begs the question of “who long is long enough?” I would think that would be up those who are claiming QI to develop a factual record that would support that an appeals court or Supreme Court decision became the law of the land too soon to make it into professional development classes, briefing notices, legal memorandum, etc. on which law enforcement rely upon to determine if their actions are legal.

    If you were to ask me for a “general rule of thumb” I would say anything beyond a month or so after mandate is issued should be questionable and viewed as per se unreasonable. The enforcement of the Constitution should not be held up by administrative lag unnecessarily, but how the courts handle QI it is reasonable that at least some time must be given to promulgate the information.

  11. I don’t like the “clearly established” qualified immunity exception as much as the next guy around here, but I think given the current jurisprudence this is correct. Some circuits have stated that law enforcement must have “fair notice” that they are violating settled law. I simply don’t see how a panel decision (no discussion on if the panel also released mandate on the day of decision or if it was held pending rehearing/cert petitions) could give front line law enforcement (who are generally non-lawyers) notice that actions which were regarded before as constitutional all the sudden were civil right violations.

    Now this begs the question of “who long is long enough?” I would think that would be up those who are claiming QI to develop a factual record that would support that an appeals court or Supreme Court decision became the law of the land too soon to make it into professional development classes, briefing notices, legal memorandum, etc. on which law enforcement rely upon to determine if their actions are legal. And it would be up to the district court and court of appeals to determine, if given those facts, whether the “lag” in educating front line officers was reasonable.

    If you were to ask me for a “general rule of thumb” I would say anything beyond a month or so after mandate is issued should be questionable and viewed as per se unreasonable.

    1. The job of the police is to enforce the law. It is absolutely necessary to that function that every officer have an individual and ongoing duty to educate themselves on what the law is, for how can they enforce the law if they don’t know what the law is.

      Not knowing the law should be LESS of an excuse for law enforcement than it is for the general public.

      1. Although I agree with the sentiment, as far as the law is concerned the police CAN legally use mistake of the law as a defense for such things as a search and seizure (so held the US Supreme Court a few years ago).

        In a practical sense though simply relying on an “individual and ongoing duty” is simply unworkable given the state of modern policing. Police are not lawyers nor are they legally trained through years of school. Most jurisdictions only require some college or no higher education to become an officer.

        Police rely upon legal education prepared by lawyers and regulators who review case law and then boil it down to “plain english” training materials. I think the fairer question is how quickly should this information be promulgated to front line law enforcement. It takes time for the wheels of bureaucracy and levels of review to churn. That said, this should not be an excuse for delaying relevant constitutional law education, but needs to at least be recognized. This is why I stated earlier I think it would be a fact specific argument that those seeking QI would have to build into a record, but as a general rule of thumb I don’t think it should take more then a month to incorporate some type of training/education into briefings, memos, etc.

        1. “Police are not lawyers nor are they legally trained through years of school.”

          Nor are private citizens.

          Slyfield’s point stands. “Not knowing the law should be LESS of an excuse for law enforcement than it is for the general public.”

          The reason that current law says that claiming ignorance of the law works for cops but not private citizens is that judges tend to be rather, well, partial to the cops.

          1. Methinks that both the layman and the policeman should be given a little slack, the former a little more, the latter a little less, as regards their personal culpability. Not so law enforcement as an institution. It’s a little unfortunate that, at least as my limited knowledge tells me, the institutions are largely protected by sovereign immunity. And in that vein, I find it inappropriate for the Court to refer to “clearly established law.” For a country that takes pride in its constitutional defense of the individual against an overbearing state, it’s a little strange that the state claims “sovereignty” and (largely) shields itself against civil suits for unlawful deeds of its agents. For the state, the law must be clearly established the moment it is set to take effect, in the case of jurisdiction the moment the court has spoken.

        2. “Most jurisdictions only require some college or no higher education to become an officer.”

          That’s their choice based on theoretical cost savings. I don’t see why it becomes my problem just because the city is choosing to cheap-out on their hiring standards. That’s certainly not an argument that works in any corporate setting.

          1. “That’s their choice based on theoretical cost savings.”

            Plus the desire to actually fill openings. It’s tough to get people to invest in an expensive degree that gets someone a job that doesn’t pay much. (Note: I worked in a vocational college that offered Criminal Justice degrees).

  12. I have a very strong dislike of qualified immunity. However, I can understand the lag time between the ruling and when it becomes clearly established. Before we worry about this timing issue I would prefer to attack the situations where qualified immunity is granted because it wasn’t clearly established that you can’t beat a suspect in the head repeatedly with your flashlight.

  13. “New” law? It seems to me we’re conflating when the law became effective with the first time a judge actually found someone in violation.

    The Third Circuit found that the officers in their case had violated the law, specifically the Fourth Amendment. The effective date of the Fourth Amendment was December 15, 1791. It already existed. Generously granting one month as suggested here for the word to get around gets us to January 15, 1791.

    Also, this isn’t some new ground like infrared imaging or a GPS tracker. Passenger ships and their cabins were arriving at borders well before the USA even existed. Unless this type of search was routine practice for 200 years, the officers should have known they were pushing the envelope.

    1. Or 1792. Still plenty of time…

    2. Wait, you mean police need to uphold the Constitution and not push the envelope? Since when?

      (sarcasm)

      Just remember, that noise in your ears is a flash bang. But you know, police are not a standing army with assault gear and automatic weapons or anything.

      1. I don’t get it — the 4A prohibits some things and allow others. It’s still ‘upholding’ the 4A for police to do all the latter things so long as they don’t do the former.

        1. Nonzenze: The cabin search was prohibited under the 4th Amendment. That was the court’s ruling. The officers did it. How is the 4th Amendment upheld here?

          That’s exactly what we’re complaining about: QI means the law doesn’t get enforced.

          1. Right. And if they have found any contraband it would have been suppressed as the fruit of an unlawful search. That upholds the core requirement of the 4A protection.

            The secondary question of liability is not “was the search unlawful” it is “was the search unlawful and should the officers have known that”.

            1. “if they have found any contraband it would have been suppressed as the fruit of an unlawful search. That upholds the core requirement of the 4A protection.”

              Look again. The core requirement of 4A protection is that unreasonable searches not take place, and persons be secure in the person, papers, and personal effects. Suppression of evidence is a lever that tends to encourage that the prosecutors correctly instruct the police on what they may do and what they may not do… but it doesn’t provide any motivation to police officers to get it right.

              The question that QI answers is, is a violation of Constitutional rights strict liability, or does it require a mens rea component on the part of the violator? The answer is, both… the government/law enforcement agency has strict liability, but to sue the individual officer, you have to prove mens rea… that they INTENDED to violate your civil rights. To prove that, you have to prove that the officer knew they were violating your rights, when they did it.

    3. You’re hung up on the language so bad that you’re missing the idea. The fact that the fourth amendment has existed for a couple of hundred years doesn’t change the fact that courts are constantly finding new ways that it might apply (or not apply).

      As analogy, consider a road that passes near a mountain. The mountain has been there for a couple of million years. But if a landslide happened yesterday, and it has buried or washed out part of the roadway, you expect the department of transportation to respond to the change in geography specifically as it applies to the roadway. The mountain was there a million years ago, and it is there today, but the landslide is recent.

      So, the Fourth amendment has been around for a long time, but whether it applies to rented accommodations on a moving vessel of the sea probably hasn’t been clearly defined for that whole time. The specific application of the fourth amendment to cruise-ship cabins is like a landslide on the side of a mountain. The totality of the mountain hasn’t changed, but the exact outline has changed just a tiny little bit, and it happened to be a tiny little bit that applied to one specific case.

      1. Oh, I get it. I just don’t like it, and I think having recourse when rights are violated is more important than supporting officers who want to propose and test drive new exceptions to the Fourth Amendment with no risk.

        To take your landslide analogy: I can acknowledge that things like cell phone records, GPS, etc are “landslides” required the roadway engineers to make some additions to the map. I don’t agree that there is any meaningful new issue differentiating a cabin on a schooner arriving in Boston Harbor in 1792 vs a cabin on a Carnival cruise ship in 2016. Customs officers have been inspecting ships for 200-+ years and if they’d allowed this to go to trial, the trial court could have taken testimony on established practices over that time to determine whether (a) the officers were doing something that has been routine during that time, and has only recently been determined to be a violation, vs (b) the officers knew they were claiming new ground.

        1. But there is recourse — suppression of the evidence.

          Liability is above-and-beyond recourse.

          1. Legal purists don’t like suppressing evidence… it deprives the jury of information they might need to reach an accurate verdict. (The primary purpose of trial is to reach an accurate conclusion, not the vindication of civil rights unrelated to the defendant’s alleged offense.) The “right” solution to a violation of rights is a civil-rights lawsuit. The problem there is that juries tend not to want to hear about it. The criminal is the bad guy and the policeman is the good guy and they don’t like it when circumstances make them consider un-pigeonholing their preconceptions. It’s hard enough to win a civil-rights case when the cops bust into the wrong house and shoot the wrong people because the cop didn’t write down the right address the informant gave them.

    4. That’s not what CE means. At all.

  14. If I can make up doctrine, I can also make up the rules for applying said doctrine. This question is like asking whether a forger should be allowed to use his own ink.

  15. Personally, I see two completely separate issues, both pointing the same way.

    First, the fact that a ruling has been handed down doesn’t necessarily mean that it’s “stable”, because it can go to appeal and get a different ruling. So, if a behavior is found to be unlawful, it MAY require changing the behavior, and it may require waiting for the appeal to reverse.

    Second, once a ruling is handed down, it takes time for it to be integrated into the training of the police officers. A change might be made to the training manual immediately… but when do the officers in the field get trained on what the change means? As an analogy, look what happens between seasons when the national football league changes what it means to make a “catch”, or changes how and when players may contact each others without incurring a penalty.

    (Of course, issue #2 does suggest employer liability if they aren’t training the officers in field on changes to the law that affect their performance.

  16. If the reasoning was sound when made, why wouldn’t it apply to subsequent acts?

  17. First, a bit of waggery: is Officer Ogg the GEICO caveman, who had to seek a new career when they stopped the “So Easy a Caveman Can Do It” ads?

    More seriously: if there’s a “time-lag” or “ignorance of the law” principle, why can’t criminal defendants discuss at trial the underlying statutory law, including the sentencing provisions? Just to keep jurors up to date on the laws they’re also subject to and which they presumably know. So you’re discussing (and arguing) things that all citizens are presumed to know?

    This “time-lag” argument seems to be another instance of judges forgetting that, once they get that sweet slot on the federal bench they no longer have to worry about some pol checking whether they support the police enough, that they have lifetime tenure now.

  18. I agree that this is an interesting case but I come to very different conclusions.

    1. While I agree that it’s plausible that a decision doesn’t become “clearly established” the instant it’s handed down, I think we should also look to the liability that non-police are subject to for new laws or decisions. In that scenario, police and prosecutors have repeatedly argued that we peons are subject to the new rules immediately.

    2. Again comparing the case to the standards for non-police, getting bad advice from supervisors, lawyers or even from other police officers is no defense at all.

    Prof Kerr is right that qualified immunity is a deeply unpopular doctrine and the double-standards necessary to decide this latest case are a perfect example why.

    1. “2. Again comparing the case to the standards for non-police, getting bad advice from supervisors, lawyers or even from other police officers is no defense at all.”

      Except for when it is.

      “Prof Kerr is right that qualified immunity is a deeply unpopular doctrine”

      That’s a mischaracterization. QI is a very broad subject with a great variety of applications. There is widespread criticism of various aspects, but people totally opposed to the entire concept of QI are far fewer, though occasionally louder.
      Analogy: Lots of people criticize sports officials, often with good reason, but nobody seriously expects the games to be played without them, even when mistakes change outcomes.

  19. The foundation of the law is clear rules.

    Is there any inherent reason why filing an appeal 29 days after a decision is an inherently good thing and after 31 days it is wrong?

    The only valid solution to this problem is that a law is “clearly established” the moment the opinion in question is released. Anything else results in an absurdity.

    Under this opinion, a rule announced in a SC opinion released 30 years ago can be considered not clearly established and qualified immunity for this would exist because it was not clearly established that waiting 30 years to follow the rule is wrong.

    Lets assume that a court issues an injunction requiring me to preserve certain documents and it is signed at 2 pm. If I destroy the documents at 2:01pm did I violate the court’s order? What about 3 pm? What about the next week?

  20. The law is intended to protect the people from violations of their rights. In cases of fuzzy lines and unclear precedents, the benefit must always lean towards the people and away from the authority.

    It doesn’t matter that the officers did not know of the ruling. That there was a ruling makes is clear that rights violated in the past means rights were violated in the present case. Maybe it means the officers don’t get punished, but at the minimum the plaintiff’s rights were still violated and they are entitled to redress.

    In short, a violation is still a violation even if the violator did not know it was a violation.

    If ignorance of the law is no excuse for the private citizen, then it’s no excuse for the agent of the state.

  21. “The only valid solution to this problem is that a law is “clearly established” the moment the opinion in question is released. Anything else results in an absurdity.”

    All you’ve done is move the question slightly to the side. “Clearly established” to whom? Miranda was handed down over 50 years ago, and there’s still a substantial portion of the population who doesn’t understand it. The courts do, and the cops pretty much do, but a lot of people directly affected by Miranda don’t understand what it does… what it protects, and what it does NOT protect.

    Discovery and spoliation of evidence have been around for a really, really long time. Do you think that every IT worker in the U.S. knows all the rules of evidence?

    1. What every IT worker knows is that you don’t destroy the last copy of a record if you’re uncertain about what rules apply. Why not require similar rules for police? If you don’t know whether your conduct is legal, err on the side of caution.

      1. “What every IT worker knows is that you don’t destroy the last copy of a record if you’re uncertain about what rules apply”

        They don’t know this. They don’t even all know not to set up the users with authority to delete things that need to not be deleted. Microsoft had to build an entire technology to save the IT staff’s bacon when users delete the things they need to do their jobs, much less deleting things that are covered by document-retention policy.

    2. But those examples are not paid by the state specifically to know the law.

      Sure, most people do not understand Miranda, but they don’t have to. The police who are paid by the state are required to know the law.

      I don’t have to know how to perform a CABG (heart-bypass), but the surgeon who is being paid to do the operation is expected to know how to do it.

      “Clearly established” does not apply to the general population, but to law enforcement.

      1. “But those examples are not paid by the state specifically to know the law.”

        The ones who work for the state are.

        “Sure, most people do not understand Miranda, but they don’t have to. The police who are paid by the state are required to know the law.”

        Duh. That’s the point. “Clearly established” is meaningless unless you specify to what audience it is “clearly established”. To lawyers, it’s “clearly established” as soon as Westlaw has it indexed. To police officers, it’s “clearly established” when it’s been inserted into the training manual and covered by mandatory training. To the public, it’s “clearly established” when it’s been on Law & Order.

        1. Do you see the obvious loophole?

          County Sheriff, “You mean that if we don’t put anything about Miranda in our training manuals we are not bound by it? If we don’t tell them it is illegal to arrest people on a hunch we can’t get in trouble for it? Well, then lets get rid of all of our training! Burn those manuals!” Under your theory, this would give the entire county immunity since it would meet the qualified immunity standard.

          It provides a powerful – I would say irresistible – incentive for law enforcement to simply stop all training, because if it isn’t in the “training manual” they cannot be held accountable for not knowing it. On the other hand, if you say that LEO need to know decisions in real time, that provides an incredible incentive for a well trained police force.

          I see no problem with requiring every police officer to spend an hour each morning – on their own time before duty begins – reviewing every relevant published decision from the previous day. The leadership of the department can select what is relevant after work each evening.

          A well trained police force is a good thing. An untrained police force is a bad thing. Simple.

          1. “County Sheriff, “You mean that if we don’t put anything about Miranda in our training manuals we are not bound by it?”
            ” Under your theory, this would give the entire county immunity since it would meet the qualified immunity standard.”

            You didn’t understand the question, so your answer is nonsensical.
            QI has nothing to do with whether or not the county is still bound. The question about it is, can you sue the deputy, personally, for doing it wrong, or just the county, for having its agent the deputy do it wrong.

            “I see no problem with requiring every police officer to spend an hour each morning – on their own time before duty begins – reviewing every relevant published decision from the previous day.”

            It’s a fairly obvious violation of employment law, and the cops have unions who pay lawyers to review their employment contracts, but other than that, sure… what a GREAT idea. And since you want them practicing law as part of their job now, you’re going to have to pay every cop in the country to go get a JD. Can’t see any downside to that…

  22. Sounds like a great hardline approach to clearly established law and QI to just say “from the moment the court rules” but that is just not within the current QI framework or even a workable rule given QI jurisprudence. Without flipping everything on its head such a stance is akin to a general without an army rattling his saber.

    Police are generally entitled to “fair notice” that their actions violate the civil rights. It is almost impossible to say that given this reality that the government does not have some sort of “lead time” or “lag” in boiling down a court ruling into non-technical “plain english” which an officer can use in the field. Also it ignores the fact that (at least here) this is a panel decision. Mandate is not usually issued by the COA until at least rehearing petitions have been resolved. Then, although extremely rare, there is always to opportunity cert is granted. I don’t even see how one can make the argument that a decision, which has not been finalized by issuing mandate, can be clearly established law even at :01 minutes after its release.

    A workable rule would be if the government is asserting QI and a portion of that is a court decision was too “new” then it should be required to build a factual record demonstrating that given training/educational policies and practices there was no reasonable way to delineate the affects of that ruling to front line law enforcement within the time frame of the decision and incident seeking relief.

  23. This blog post buys way too far into the fiction that police officers generally know the Fourth Amendment precedents under which they are supposedly constrained. This blog post buys way too far into the legal fiction that police officers could understand, remember and/or apply the 4A precedents even if they received extensive, regular training on that. This blog post buys way to far into the extra-legal fiction that individual police officers pay civil judgments.

    1. “This blog post buys way too far into the fiction that police officers generally know the Fourth Amendment precedents under which they are supposedly constrained.”

      They get taught the way to do things. The way they get taught depends largely on how well the training cadre understands the law, and how well the organization conducts training for the officers once they’ve cleared their probationary-hire period. They get taught when to go for a warrant, and they get taught when they don’t have to go for a warrant, and they apply what they’ve been taught to varying degrees of independent judgment.

  24. In another post earlier, I said probably a month (30 days) is per se reasonable, but again I would leave the burden up to the government to present a factual record as part of seeking QI that the decision being relied upon was too “new” to count as being clearly established.

    This would be consistent with educational training I know mid-size and smaller PD’s use. Most require officers to read training bulletins and sign off on them once a week and more seismic rulings are usually discussed at length during briefings by superior officers or a visiting ADA. Some cops have told me this might even occur if the decision is being appealed further, but that review is discretionary. In those cases they are usually given “interim guidance” that “errs on the side of caution”.

    For those that think law should become clearly established the moment it is released or finalized, I just don’t see how that is even remotely workable other then forcing the government to pay up before it has had a chance to train law enforcement is an incentive not to rely on bureaucratic excuses to shield it from liability.

    1. As someone else pointed out, if we do this, a few years from now we’ll be hearing the following:

      (a) “We had no reasonable way to know when the 30 days started”
      (b) “The court said the illegal beatings must stop, and we got the notice the day after, but we’re allowed to keep doing it anyway within the 30 days grace period”
      (c) “We get to run out the clock on all the appeal periods until we get a final no from the Supreme Court, so our grace period is really 123 months. Plus the 30 days.”

      Dr. Kerr will find these to be “interesting questions” and some people here will defend the arguments.

      1. (a) “We had no reasonable way to know when the 30 days started”

        Sure there are lots of different ways. It could be from when mandate is issued, all avenues of review right/discretionary are exhausted., mandate issued, etc. That is just to name a few.

        (b) “The court said the illegal beatings must stop, and we got the notice the day after, but we’re allowed to keep doing it anyway within the 30 days grace period”

        Come on is this the best you can come up with? As I stated I think given the prevailing QI rules it would be a fact specific inquiry based upon reasonableness and the burden would be on the government to show why it needed some “time lapse” period and why that expectation is reasonable.

        (c) “We get to run out the clock on all the appeal periods until we get a final no from the Supreme Court, so our grace period is really 123 months. Plus the 30 days.”

        Again the point any decision becomes “clearly established” would have to be defined by a court created rule, but yeah could that be end of all discretionary review. Sure. I would say it should probably start ticking though when a precedential decision is issued along with mandate. If a higher court sees it fit to do so, it can always stay mandate.

        1. Sure, you’ve proposed somewhat reasonable rules, but the point is they aren’t clearly established.

          I’m talking about the arguments an abusive cop’s lawyer is going to make to try and get him off the hook. When some cop makes bogus argument along the lines of (b), the judge could do one of three things:

          – dismiss it as the nonsense it is
          – accept it with a straight face
          – try to have it both ways and say the continued beatings were not protected by the 30 day rule, but the cop couldn’t have known for sure how the 30 day rule applied.

          I have no confidence that judges will not take the third option.

        2. “I think given the prevailing QI rules it would be a fact specific inquiry based upon reasonableness and the burden would be on the government”

          The dead horse beating will continue.

          The government has no burden in a QI argument, because the government isn’t involved in any. It’s the individuals working for the government, when named personally in a lawsuit, that try to invoke QI.

          Let’s say you think you got roughed up by the cops in violation of your rights. So, you sue the police agency that did the beatings, and the officers who did the beating. The officers will invoke (or attempt to invoke) qualified immunity, but the government (and the government’s lawyers) will take no position on the question. The QI inquiry goes like this “I followed the department policy the way I was trained, and was acting in my role as a police officer” If that’s true, AND the department policy comports with the law as law as it was understood at the time of the event, the cops get dropped from the suit and you proceed against the government agency that employs the guys what beat you up (according to their department policy).
          Now, if the department policy is actually “no beatings”, then the cop wasn’t following it when you got your beating, and they are not entitled to QI, and your suit continues against the cop(s) for beating you, and against the department for not training the cop adequately not to beat you.

    2. ” I would leave the burden up to the government to present a factual record as part of seeking QI”

      The government isn’t going to bother, because the government has absolute immunity, not qualified immunity. QI is for the officers when named personally in lawsuits.

  25. “Maybe a bright-line rule that holds officers immediately responsible for new law is best. It would also have the benefit of encouraging law enforcement to alert officers to new rulings immediately. And although it might be unfair in a few cases in theory, it’s fair to wonder how often this issue actually comes up.”

    At first glance, this is my position. Qualified immunity is a judicial creation that can be used to keep people from being compensated for having their rights violated. When it comes to fairness, I don’t have a problem saying that the balance of equities pretty clearly favors the person whose rights were violated against the person who was violating those rights.

    1. I think this bright line rule is one that is more workable then others which have been presented. It reminds me of the judicial reasoning behind suppression of evidence though to which the courts will readily concede letting the criminal go because the constable bungled up is a high societal cost. Such a rule would probably end up being a judicial red headed step child of suppression when it goes to QI though.

      The whole theory behind QI is that front line government needs to be able to actually engage in governing without having to worry about every decision it makes literally ending up being made into a federal case. I know most here don’t (can’t) ever put themselves in the boots of a government employee, but imagine trying to do your job as say even the local code enforcement officer if every time you do an apartment inspection the landlord’s attorney threatens legal action essentially making your decisions subject to the review of the federal courts playing Monday Morning Quarterback?

      Not a fan of current QI law, but in the end Article III courts do not exist to review every single administrative action of the government and if found to violate the constitution impose hefty damages and legal fees.

      1. “but imagine trying to do your job as say even the local code enforcement officer if every time you do an apartment inspection the landlord’s attorney threatens legal action essentially making your decisions subject to the review of the federal courts playing Monday Morning Quarterback?”

        I have more sympathy for the average businessperson who has to worry about every decision they make violating a host of federal, state, and local laws. Somehow we manage to find plenty of people with the fortitude to make those decisions. In contrast, it’s fairly easy to establish when a local code enforcement officer can enter an apartment.

        “Not a fan of current QI law, but in the end Article III courts do not exist to review every single administrative action of the government and if found to violate the constitution impose hefty damages and legal fees.”

        No, they exist to resolve disputes, including to provide a means of redress for people who believe their rights have been violated by administrative actions of the government. Nobody has suggested a free-floating review of all actions.

    2. “Qualified immunity is a judicial creation that can be used to keep people from being compensated for having their rights violated.”

      A bright-line rule that holds officers in the field liable for rulings as soon as they are made gets you more problems, not fewer. It means the training cadre of every law enforcement agency has to rush to get new information to the officers in the field. You know what happens when you rush complicated things? They get done poorly.

      1. “A bright-line rule that holds officers in the field liable for rulings as soon as they are made gets you more problems, not fewer.”

        No.

        “It means the training cadre of every law enforcement agency has to rush to get new information to the officers in the field.”

        No it doesn’t. There’s no reason to assume that every law enforcement agency uses unconstitutional tactics just because some do. Many law enforcement agencies don’t try to push the envelope of what they can get away with. Nor is there any reason to believe that every law enforcement agency will ever transmit this information to its officers, regardless of how long they have.

        “You know what happens when you rush complicated things? They get done poorly.”

        Things were already being done poorly. I mean, I consider the government to be doing a poor job when it violates the rights of the people it is supposed to be serving. Why should members of the public be denied compensation for having their rights violated because the government wants to have more time developing training materials? You’re concerned for the abusers, I’m concerned for the abused.

        1. “‘A bright-line rule that holds officers in the field liable for rulings as soon as they are made gets you more problems, not fewer.’

          No.”

          Yes.

            1. Don’t forget to put your fingers in your ears.

              1. We’re typing, not talking. You really aren’t any good at this.

                1. I have voice-to-type, loser.

                  1. That’s still typing. Try again. Maybe ask for help this time.

                    1. “That’s still typing. ”

                      Not typing is still typing? I yield to your determination to reject reality.

                    2. ” voice-to-type”

                      Seriously, this is just getting embarrassing.

                    3. I’ll come back when (if) you grow up.

                    4. I will so miss your witty repartee. I’ll just have to content myself with your greatest hits.

                    5. As you wish, Mr. Pan. Say hi to Tink for me.

                    6. I’m confused. You weren’t going to come back until I grew up. But you came back, then said I hadn’t grown up. It’s like I can’t even trust you anymore. Have you no shame?

                    7. “I’m confused.”

                      Yah. Stop there.

                    8. There’s that trademark James Pollock wit we’ve all come to know and love. The members of the Algonquin Round Table have nothing on you. “Stop there.” What a zinger.

                    9. “What a zinger.”

                      Indeed.

                    10. Indeed what?

  26. So here’s the question. How long after a decision is handed down does law become “clearly established”?

    How about this – how long after a new law comes into effect can you be arrested and sentenced for violating it?

    That’s how much leeway law enforcement should have for qualified immunity.

    1. That’s not really a great analogy. Very few laws go into effect immediately upon enactment, and most specify when they will become effective (which is usually months out). Newspapers frequently publish updates when a batch of new laws are about to go into effect explaining the changes.

      1. I think the question of “how long” is lot like the question “what is pornography”

        I can’t tell you what it is, but I know it when I see it

        1. Which makes it very hard to administrate. Which is one of the reasons I favor deeming it “clearly established” immediately.

          1. So you prefer a different set of problems making it hard to administrate.

            Which is fine, except that you insist on denying reality to make yours “better”.

            1. Disagreeing with James Pollock about the practicalities of implementing legal rules does not require one to deny reality.

              1. No, you made it a choice, not by requirement.

  27. This is a bad judiciary decision.

    Law becomes law as soon as it’s signed (and of course with any qualifiers like this law shall become effective on [date]).

    The ONLY question that court should have decided is whether the cops’ actions were legal at the time OR NOT.

    “Clearly established” is so malleable that it simply cannot be taken into account when making any judicial decisions.

    1. “Law becomes law as soon as it’s signed”

      But it doesn’t become enforceable as soon as it’s signed, so that’s not helpful.

      1. Yes, it does. There is no legal bar for a President or Governor to sign a criminal law that becomes effective immediately. In fact, many do become effective immediately.

        1. “Yes, it does.”

          No, it doesn’t.
          Regulations don’t become enforceable until they get published in the CFR. Statutes don’t become enforceable until published, and sometimes not even then.

          Try applying some common sense. If a law became enforceable the moment it was signed, there’d have to be a place on it to write down the exact second it was signed, and they don’t have that. Nobody who wasn’t in the room would know when the law came into effect, therefore no mens rea for anyone, therefore acquittals for everyone.

      2. That’s why I added the qualifier statement.

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  29. The officers may not have been aware of the ruling, but what about the magistrate who signed off on the warrant? It’s hir JOB to be aware of such things!

    1. You’re absolutely right, but also off on a tangent.

      I claim I was wrongfully harassed by a law enforcement agency, and my Constitutional rights were violated. So I want to sue the state, the specific agency, and the specific agents who violated my rights, Officers Wrong and Wronger.

      The officers have a legal representative provided by their union, who argues that the officers followed procedure as set out in their training manual and didn’t conduct any search until they obtained a warrant, and then they followed the restrictions of the warrant when they searched my person, papers, and personal effects. They believed they were in strict adherence to the law at all times, and therefore could not possibly have intended to violate my civil rights. They’re objectively right about this. Now… the warrant should not have issued, and the judge who authorized it should not have done so. How does that affect the specific cases of Officers Wrong and Wronger? Are they supposed to know the law even better than the judge? Are they supposed to know that the warrant should not have issued, when the judge who issued it didn’t?

  30. Fascinating question, and excellent article.

    I’m neither an attorney nor a legal nerd. I have one VERY basic (like Vince Lombardi “This is a football” type of basic) observation:

    Police Departments have SOME administrative structures to help them keep abreast of new rulings & evolving court interpretations of existing law. Clearly the level and sophistication of those admin structures varies widely by the size of the city / county / state whose police department we’re talking about. But still WAY more such resources than John / Jane Doe, ordinary citizen, has available for that purpose.

    Since ignorance of the law is no excuse / defense for John / Jane Doe, ordinary citizen, why should it be for John / Jane LEO (Law Enforcement Officer), who has considerably more resources available to keep them abreast of evolving legal matters? How is it reasonable, or conscionable, to hold LEOs to a LESSER standard of knowledge of the law than ordinary citizens are held to?

    1. “Since ignorance of the law is no excuse / defense for John / Jane Doe, ordinary citizen, why should it be for John / Jane LEO (Law Enforcement Officer), who has considerably more resources available to keep them abreast of evolving legal matters?”

      The police officer is trained how to do things the right way. Or at least, is supposed to be. If the cop does things the way the agency directs, then the proper defendant is not the individual officer, but the agency that failed to train him properly. If the officer is trained in how to do it correctly, but chooses to do it improperly, then the proper defendant is the individual officer.

      Suppose you have a car repairman, who repairs the brakes on a car that is subsequently involved in an accident caused by failed brakes. So… who gets sued, the shop that employs him, or the repairman as an individual? You’d look to see if he was acting as an agent of the employer when the bad work was done. If he did it in accordance with the directions given to him, you sue the shop. If he ignored the right way to do it because he wanted to duck out of work a couple of hours early, you sue him as an individual.

      1. OK, here’s two more hypotheticals:

        1) Joe Copp sees his ex-wife driving, and pulls her over to complain about the divorce. Should the cop or the PD get sued for that?

        2) Chief O’Police puts out a BOLO for his ex-wife’s car, claiming it’s stolen by checking a box on the computer screen. Joe Copp sees it and pulls it over. Should Joe Cop or the PD get sued for that?

        OK? No question that someone’s rights were violated… the question is over who should get sued over it. What makes it complicated is a case like

        3) Chief O’Police tells morning roll-call, including Joe Cop, to pull over the former Mrs. O’Police if they see her. Joe Copp does so.

        For that last one, you have to make an inquiry in the exact circumstances, to figure out if Officer Copp should have known that the stop was not for a legitimate police purpose, and therefore a violation of Mrs. O’Police’s civil rights. Courts tend to take Officer Copp’s side, even in cases that seem obvious to non-judges, which is why most of the people opposed to QI are opposed to QI.

  31. If the point of qualified immunity is what a reasonable officer would know, then it doesn’t make much sense to require immediate knowledge of the new ruling. On the other hand, the “reasonable time to train” standard strikes me as unadministrable and probably disincentivizes departments from training their officers promptly.

    I’d suggest a bright-line rule that a rule is effective for QI purposes at the earlier of when the officer is actually trained *or* when the decision is published in a widely distributed reporter — in practice, the Federal Reporter for circuit courts and the U.S. Reports on Supreme Court Reporter for the Supreme Court. The paper publication process would give departments enough time to train on slip opinions, while setting down a bright-line rule for administration. This rule also ties in to the concept in most or all circuits that published opinions are precedent and unpublished opinions are not.

    By contrast, for AEDPA purposes, I *would* require or deem a state court to be aware of new Supreme Court precedent instantaneously.

    1. ” disincentivizes departments from training their officers promptly.”

      Why would it? Qualified immunity for the officers means the department is solely liable.
      Meanwhile, when the officers act wildly outside their authority, the department is STILL on the hook for negligent training.

      I think you’re confusing qualified immunity for the officers for immunity for the department.

      Your proposed rule leaves officers employed by departments with lazy or ineffective training cadres on the hook, and out to dry, when they have no way to fix the problem. When Officer Newguy asks for more training, and the training staff says “yeah, sure, we’ll get right on it” and tosses the request directly into the round file, what is he supposed to do about it? He isn’t harmed by this until he gets personally sued for doing his job the way he’s been trained, and when that happens, he’s already got unanticipated legal expenses, so it isn’t the best time for him to be suing his own employer…

      1. Or are the cops supposed to be getting a Westlaw subscription, so they can read new opinions as soon as they hit the slips?

      2. No, I’m not confused. One generally can’t sue departments or governments unless there’s an unconstitutional pattern or practice. Mere negligence in the training of an officer is not typically a constitutional cause of action. (Seriously, go try to find a “negligent training” case against the federal government under Bivens. I’ll wait.) The run-of-the-mill constitutional suit is brought solely against the officer; if a department or government is named in such a suit, that cause of action is swiftly and uncontroversially dismissed (as happened here).

        The department’s training comes into play because, in practice, every government indemnifies its officers for Bivens/1983 suits. If a police officer gets unreasonably deficient training and loses a law suit, the department is ultimately the one that pays.

        1. “Mere negligence in the training of an officer is not typically a constitutional cause of action.”

          No, it’s statutory. Details depend on the little tort claim act passed by the state.

          “One generally can’t sue departments or governments unless there’s an unconstitutional pattern or practice.”

          If they’re trained that searching without a warrant is OK, in circumstances where it isn’t, that’s a pattern or practice.

  32. So, I have a basic disagreement with one of Kerr’s foundational points:

    “Qualified immunity is largely about personal culpability…”

    I disagree. How often do government officials actually pay ANYTHING out of their own pocket and how often are they indemnified by the agency they work for? It is my impression that it is the government employer rather than the government employee who pays these judgments in practice.

    So, qualified immunity is about something else. It is about whether a government agency (not an individual) will have to pay for constitutional violations AND about whether there was a constitutional violation or not will even be decided at all.

    I am OK with government agencies paying for constitutional violations that were not “clearly established.” I would call that a cost of doing business.

  33. I am one of the Plaintiffs in the Bryan case. We are considering filing a petition for rehearing en banc. We will be arguing that this is an exceptional case calling for rehearing en banc. We will also argue that the govt did not produce any evidence that they lacked time to inform these officers of the Whitted decision. Any other arguments you might suggest?

    We will also seek panel rehearing. A second issue in the case was that the officers entered the cabins immediately after knocking and announcing, but without giving us an opportunity to answer, in violation of the knock-and-announce rule. We were short-changed by the Court not ruling on this second part of our Complaint.

    Anyone with a real interest in these issues, especially anyone interested in reading and commenting on the petition for rehearing and rehearing en banc, is welcome to contact me at OilGenie@yahoo.com. Thank you for your interest.

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