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Did Judge Reeves Reach the Correct Result in Jamison v. McClendon?

A blistering criticism, but I'm not sure this was the right case for it.

|The Volokh Conspiracy |

As many readers know, District Judge Carlton Reeves recently published a blistering opinion about the injustice of qualified immunity law in Jamison v. McClendon.  In the case, Judge Reeves argues that its facts—involving a Black driver allegedly badgered, lied to, and searched by a white police officer—shine a light on why justice demands that qualified immunity must be overturned.  The officer violated the Constitution, Judge Reeves concludes, but he cannot be held liable thanks to the "unsustainable" doctrine of qualified immunity that in "real life . . . operates like absolute immunity."  Judge Reeves writes: "Just as the Supreme Court swept away the mistaken doctrine of separate but equal, so too should it eliminate the doctrine of qualified immunity."  He concludes: "Let us waste no time in righting this wrong."

There's a lot going on in the Jamison case, and there are many aspects of the case that are very interesting and very much worth reading.  As most readers know, there's an ongoing national conversation about whether qualified immunity should be abolished. I gather Jamison was designed to be (and already is) part of that public conversation. That's a hugely important debate that has often been discussed here at the blog, in particular with respect to Will Baude's important scholarship.

As a Fourth Amendment nerd, though, I wanted to focus on a doctrinal part of the case that has not been discussed: Was Judge Reeves correct that the officer was entitled to qualified immunity under current law?

I'm skeptical.  It seems to me that that Judge Reeves likely was wrong, and that the officer was not entitled to qualified immunity.  In particular, I worry that Judge Reeves may have misunderstood the relevant Fourth Amendment doctrine.  That misunderstanding may have led Judge Reeves to treat the constitutional violation as a close call that required ruling in favor of the officer on qualified immunity grounds.  It seems to me, though, that the officer's constitutional violation was obvious.  It therefore violated clearly established law, and the officer should not be entitled to qualified immunity.

Let me be the first to add:  Yes, I realize that, if it turns out I'm right, it doesn't  undermine the case against qualified immunity.  Most of Judge Reeves's opinion is addressed to a public debate about whether the Supreme Court should overturn its qualified immunity cases.  My post is on a really small-scale issue. I'm only talking about how current law should apply to this one case.  And to the extent it's relevant to some readers, I oppose qualified immunity, too,  I would like to see it overturned. (At least as long as that change wouldn't lead to eliminating the exclusionary rule or create other systematic changes in Fourth Amendment law, which is entirely possible. But that's a complicated question for another day. )

Nonetheless, given that this opinion is already getting a lot of attention, I thought it might be interesting to explain why I think the result in this particular case was likely incorrect.  It shouldn't change the national debate, but it does lead me to wonder if Judge Reeves picked the wrong case to demonstrate qualified immunity's problems.  It's a small point, I concede, but perhaps of interest to the fellow Fourth Amendment nerds reading.

I'll start with the facts; turn to the Fourth Amendment analysis; next turn to the qualified immunity question; and conclude with my own take.

I.  The Basic Facts

The plaintiff, Jamison, was stopped for a license plate tag violation.  The defendant, Officer McClendon, pulled him over.  Jamison is Black. McClendon is white. McClendon became suspicious that Jamison had something illegal in the car.  However, McClendon had zero actual legal suspicion to think Jamison had anything illegal in the car.  It was purely a hunch—and one, we can assume, was based in part on Jamison's race.

Eventually, Jamison expressed consent to search the car .  An extremely thorough search of the car followed.  After almost two hours, absolutely zero evidence was found.  McClendon then allowed Jamison to leave, although Jamison's car was damaged as a result of the search.

Jamison later sued McClendon.  The Jamison opinion is focused on the first of Jamison's claims, brought under the Fourth Amendment. In particular, the new decision focuses on a specific part of the traffic stop.   In their depositions, Jamison and McClendon gave starkly different recollections of what happened in this part of the stop.  But because Jamison involves a motion for summary judgment filed by McClendon, we have to accept Jamison's version of the facts as true.

According to Jamison's deposition,  McClendon repeatedly badgered him into consenting.  McClendon pleaded with Jamison to consent five times before Jamison finally gave up and permitted the search. To pressure Jamison to consent, McClenson lied multiple times to him about a report that there were massive amounts of cocaine in the car.

And this next part is particularly important.  According to Jamison, while McClendon was trying to get Jamison's consent, McClendon "placed his hand into the car, and patted the inside of the passenger door," and then "moved his arm further into the car .  . while patting it with his hand."

For what it's worth, McClendon denies all of this happened.  His story is just that he asked Jamison for consent and Jamison simply consented.  But McClendon's conflicting version of events is not relevant at this stage because McClendon is the moving party. Where the facts conflict, we have to accept Jamison's version of events as true.

II.  The Intrusion Into the Car

Now let's turn to the Fourth Amendment claim.  Just to make this super-long post more manageable, I want to focus specifically on Jamison's claim that McClendon violated the Fourth Amendment by placing his hands inside the car and patting the inside of the passenger door.

Was that an unconstitutional search?   Judge Reeves reasons that it was.   First, it was obviously a search.  McClendon's body physically intruded into the car.  The next question is whether it was an unreasonable search.

And here Judge Reeves makes a critical assumption.  Judge Reeves assumes that whether an officer's physical intrusion into a car is reasonable is governed by a Fifth Circuit case, United States v. Pierre, 958 F.2d 1304, 1309 (5th Cir. 1992), that involved a border check point.

In Pierre, a border patrol agent stuck his head inside a car at a border check point to speak with a passenger about his citizenship.  Upon poking his head in the car, he smelled marijuana.  The Fifth Circuit analyzed the constitutionality of the officer sticking his head into the car using a totality of the circumstances analysis that looked to the extent of the privacy right, how much the border agent needed to see the passenger, and officer safety concerns.

Pierre in turn relied on New York v. Class, 475 U.S. 106 (1986), a case in which an officer, during a traffic stop, reached into the passenger compartment of the car to move papers that had obscured the car's VIN. The Court subjected that search to a general reasonableness analysis, holding that the search "was sufficiently unintrusive to be constitutionally permissible in light of the lack of a reasonable expectation of privacy in the VIN and the fact that the officers observed respondent commit two traffic violations."

In Jamison, Judge Reeves applies the totality of the circumstances inquiry from Pierre and Class to McClendon's search into the car.  Applying the Pierre factors, Judge Reeves concludes that Officer McClendon's search of the car was on balance unreasonable and therefore unconstitutional.

III.  The Qualified Immunity Analysis

Judge Reeves then concludes that McClendon is nonetheless entitled to qualified immunity.  Because the reasonableness of searching the car is based on a totality of the circumstances, he reasons, we need factually similar caselaw telling us how the totality of the circumstances test should apply before the violation is clear.  Here's how Judge Reeves frames the question:

The question in this case is whether it was clearly established that an officer who has made five sequential requests for consent to search a car, lied, promised leniency, and placed his arm inside of a person's car during a traffic stop while awaiting background check results has violated the Fourth Amendment. It is not.

It was not clearly established, Judge Reeves reasons, because there was no factually similar caselaw that could establish how the totality of the circumstances test applied.  In particular, neither Pierre nor Class clearly established that the search here was unreasonable:

While it has been clearly established since at least 1986 that an officer may be held liable for an unreasonable "intrusion into the interior of a car," this is merely a "general statement of the law." Clearly established law must be particularized to the facts of the case.

In Pierre, the officer could not see into the suspect's back seat and had to put his head inside to speak to the suspect. In Class, the suspect had been removed from his car and the officer put his hand inside to move papers so that he could see the car's VIN. Neither case considered a police officer putting his arm inside a car while trying to get the driver to consent to a search. Both cases also found the officer's conduct to be reasonable, thus not providing "fair and clear warning" of what constitutes an unreasonable intrusion into a car.

"Given the lack of precedent that places the Constitutional question beyond debate," Judge Reeves concludes,  "Jamison's claim cannot proceed."  Officer McClendon is entitled to qualified immunity.

IV.  Why I Think Judge Reeves Likely Was Mistaken

That brings me, finally, to why I think Judge Reeves was likely wrong.  By focusing on Pierre (the check point case), and Class (the VIN case), Judge Reeves concluded that the constitutionality of an officer reaching into a car must be analyzed in the Jamison case using a totality-of-the-circumstances test.  That created lots of room for qualified immunity because vague standards can't provide the clear notice to the police of a bright-line rule. You need similar cases before the vague standard becomes clear.

But I think that framing was problematic.  Pierre and Class were specific kinds of Fourth Amendment cases that fit into a specific doctrinal box.  Pierre was a border check point case.  Class was a case about finding a VIN to check for traffic violations.  Both are examples of non-law-enforcement so-called "special needs"-type searches.  In that doctrinal box of Fourth Amendment law, the doctrine relaxes the usual probable cause requirement and instead applies a more relaxed reasonableness test given the non-law-enforcement interests (such as border inspections or traffic safety) advanced by the search.

But Jamison is not a special needs case. McClendon does not claim that he physically intruded into the car and patted the inside of the door for reasons of officer safety.  He doesn't claim he did that to inspect Jamison's car for safety violations.  There was no border checkpoint. McClendon's claim, as I understand it, is just that it didn't happen at all.  Once we accept Jamison's claim that it did happen, as I believe we must at this stage of the case, we have a clear search (McClendon placing his hands in the car and patting down the inside of the door) that has absolutely zero legal justification and that is not subject to a general reasonableness test.

Outside the special-needs context, the Fourth Amendment law of searching a car is a clearly established bright-line rule. Because it's a bright-line rule, the violation becomes obvious even if there is no factually identical or closely similar case.

Consider how the Fifth Circuit stated the rule, citing cases, in Emesowum v. Cruz, 756 Fed.Appx. 374 (5th Cir. 2018): "It has long been clearly established that police may not search a car for evidence absent probable cause or consent."  There's considerable Fifth Circuit caselaw not just establishing that rule, but also saying the rule is clearly established.  See, e.g., Mack v. City of Abilene,  461 F.3d 547 (5th Cir. 2006) ("Appellees' search of a car in an open parking lot without a search warrant, without probable cause, without a concern for officer safety, and without consent violates clearly established law. A reasonable officer would not think the Constitution allows a random search of a vehicle where none of the above justifications apply.").

To be sure, qualified immunity can still apply if there are fair questions about how that clearly-established rule applies. For example, imagine an officer searched a car but was just slightly short of probable cause.  Qualified immunity will apply because how the clearly established doctrine applies is tricky: the officer might reasonably believe that there was probable cause even if a court later disagrees.  But when it's clear that the clearly established rule was violated, then qualified immunity can't apply.

My sense, then, is that McClendon did violate clearly established law. Sticking his arm inside the car and patting down the inside of the door was obviously a search. It was governed by the rule, long recognized in the Fifth Circuit as clearly-established law, that the officer needed some justification for that search—probable cause, or a warrant, or a safety concern, or a special needs concern.  But there's no plausible argument I am aware of that any of those justifications could apply.  To use the Fifth Circuit's language in Mack, this was "a random search of a vehicle where none of the above justifications apply."

V. Conclusion

For these reasons, I tend to think Judge Reeves was mistaken to confer qualified immunity on McClendon as to that particular part of the case.

As always, I have posted my best sense of things, but I may be wrong.  If you think I'm mistaken, I'd appreciate it if you could explain why so I can consider the argument and post a correction if I've erred.  And there are lots of other fascinating doctrinal parts of the opinion to talk about, as well as of course the underlying policy debate over whether the Supreme Court should overturn qualified immunity.

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78 responses to “Did Judge Reeves Reach the Correct Result in Jamison v. McClendon?

  1. Part of the problem with unqualified immunity is that if a judge feels like handing it out, they can pretty much always find SOME way of distinguishing the present case from existing precedent. In this case you disagree with that finding, and I probably would, too.

    But this just focuses on the real problem with the way unqualified immunity operates, which is that we’re pretending that the cops have encyclopedic knowledge of precedent, and aren’t liable unless there’s precisely on point precedent. When we can only reasonably expect them to operate on general principles, because they generally would NOT be aware of the on point precedent even if it exists.

    1. For once, Brett got something right. The QI analysis is based on the idiotic legal fiction that state actors finely parse legal decisions — dozens of them, starting with SCOTUS, then controlling decisions from their Circuit, then persuasive ones from other circuits, and then maybe district court decisions — to decide whether they are exactly on point before acting.

      1. I agree. I would also add that on the other side of the ledger, the other problem with qualified immunity is that it allows state actors to get away with stuff that anyone who’s had a high school civics course should know is unconstitutional, so long as there isn’t a case that’s directly on point. Including issues that have never been litigated precisely because anyone with a high school civics background would have known that it’s unconstitutional.

    2. Mr. Bellmore, that is a lucid, intelligent, well though-out objection.

  2. As long as we’re dispensing with qualified immunity, let’s allow police to also sue those who cause injury to them. Goose meet gander.

    And no, police should not have to assume the risk of an intentional injury or death.

    1. Seems like a reasonable compromise. Returns us towards the original theory of “policing”, which is just the government hiring people to do full time what every citizen is entitled to do.

      ” To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence. “

      1. That theory is nonsense.

        It gets you things like the Arbery killing, because there too many assholes out there.

        Do you really want to get pulled over by some random guy who claims you ran a stop sign, or were going 33mph in a 30mph zone?

        We already have a big problem with police accountability. Let’s not make it worse.

        1. I suspected you’d get that backwards. Here I am suggesting scaling back the powers of police to just what a normal citizen could justify exercising, and you think I’m proposing to convert every Tom, Dick and Harry into Tom, Dick, and Dirty Harry.

          If you’ve got laws that a normal person couldn’t be justified in stopping you from violating, maybe you’ve got laws that cops can’t be justified in stopping you from violating?

          1. So your choices are either anybody can do a traffic stop or nobody can?

            How about, identifiable, uniformed, police, employed by the government, and subject to a number of restrictions, can make traffic stops?

            Do some cops abuse that power? Sure. Lots of them do. But the answer is to make them accountable, not do away with enforcement of traffic laws or let unaccountable private citizens enforce them.

            And yeah, they would be unaccountable. What you are proposing is libertarian madness.

        2. If you really want to carry it that far, then continue carrying it further, so that people stopped unfairly can sue for that.

          Or more simply, turn every police action into a bet — let the jury resolve the entire dispute, let them assign blame to any or all parties, instead of only finding the defendant guilty or not.

        3. Massachusetts has “private criminal complaints” — and you can do exactly that here. You gotta convince a clerk magistrate of the legitimacy of your complaint, and good luck with the 33 in a 30, but you can do that here.

          1. Massachusetts, where I used to live, also has a provision that private citizens can introduce bills in the legislature. I once introduced a bill that said as follows:

            Whereas Massachusetts has an official state tree, state flower, state bird and state motto, but no official state joke,

            It is therefore enacted that Massachusetts General Laws Chapter 272, Crimes Against Chastity, Morality, Decency and Good Order, shall be declared the Official State Joke.

            Regrettably, my bill did not make it out of committee.

            1. “Section 16: Open and gross lewdness and lascivious behavior”

              Do you have any idea how many members of the legislature get arrested for that?

      2. “Do you really want to get pulled over by some random guy who claims you ran a stop sign, or were going 33mph in a 30mph zone?”

        Kinda. He’d better drive pretty carefully as he was leaving the scene of the stop.

    2. As long as we’re dispensing with qualified immunity, let’s allow police to also sue those who cause injury to them. Goose meet gander.

      Reasonable, provided it’s under the same conditions that a normal person would have for a tort. i.e. nothing special for the police.

    3. You can’t get blood from a stone.

      Cops are relatively well paid, and they are generally indemnified by their employer.

      Criminals are generally poor and have no general liability insurance or source of indemnification. Civil judgements against them would be less than useless.

    4. What makes you think that police officers can’t sue people who wrongfully injure them?

    5. “let’s allow police to also sue those who cause injury to them”

      Isn’t that right already essentially subrogated?

      The (small “s”) state pays disability and survivor pensions (as well as worker’s comp) and the state attempts to recover that from the perp who injured the cop. Officers probably do better under this system than they would under individual suits because they aren’t giving a third to a lawyer and most perps aren’t going to have enough to make it worthwhile in the first place.

      1. And you better believe that municipalities would want to subrogate any significant judgement that an officer did get on the grounds that they are already paying for those injuries. Just like health insurance companies and auto accident injury expenses.

    6. In which alternate universe are the police not allowed to sue people who injure them? They usually don’t bother because such people tend to be judgment proof, but that’s not the same thing as saying they wouldn’t have a cause of action if they chose to.

    7. … do you exist in a world where bleeding on a cop isn’t “assaulting an officer”? The goose and the gander aren’t even close.

  3. “and one, we can assume, was based in part on Jamison’s race.”

    This is where you lost me. You just assume a racial component (because why not) without absolutely any supporting evidence. That is some sloppy logical reasoning right there that does nothing but playing into The Narrative.

    1. First, I’m not sure why you’re saying “you,” since that’s a quote from the judge’s opinion, not Orin’s claim.

      Second, “without any supporting evidence” is exactly the reason to assume that. There was no basis whatsoever for the cop’s conduct.

      1. “There was no basis whatsoever for the cop’s conduct.”

        None?

        “Clarence Jamison was on his way home to Neeses, South Carolina after vacationing in Phoenix, Arizona. Jamison was driving on Interstate 20 in a 2001 Mercedes-Benz CLK-Class convertible. He had purchased the vehicle 13 days before from a car dealer in Pennsylvania”

        Dude from SC bought a used car in another state and immediately went to a state bordering on Mexico and was returning.

        Innocent certainly but also something a drug dealer would do.

        Not probable cause but not “no basis” either.

        You just hate cops.

        1. Oh, come on. I don’t know, the traffic cop *might* be able to know that the car had been bought in another state, but how the heck would he know that the guy was returning from Phoenix? For all he knew the guy had been toddling around locally the whole time.

          You can’t retroactively make a stop reasonable based on stuff you’re only going to find out after the fact.

          1. The stop was because of the temp tag.

            ” how the heck would he know that the guy was returning from Phoenix?”

            He asked the driver when they were talking.

            1. “He asked the driver when they were talking”

              I can’t see the cop not asking what he did for a living, and being told that he was a wielder, asking where. Mississippi is not *that* big a state, and cops tend to know who the good paying blue-collar employers are. My guess is the guy works on an oil rig — the 30 days on/30 days off practice would also explain why he had a temp plate from a state to the east but was returning from the west.

              The other thing is that — at least in New England — town cops aren’t allowed on the interstate except for pursuit, and even then they have to request the assistance of the State Police. It’s a carefully guarded turf.

            2. “Innocent certainly but also something a drug dealer would do.”

              You should stick to handling small-scale real estate closings in Lesser Backwater, Ohio.

            3. “The stop was because of the temp tag.”

              That was the officer’s story, anyway.

              Enough for you, though, Bob. Especially when a black guy was driving a nice car where he “didn’t belong.”

            4. Having an out-of-state temp tag is now basis for a stop?

              Yeah, that sounds reasonable.

              /s

        2. Well, drug dealers also stop at gas stations, eat at restaurants, stay in motels and use cell phones, all of which I also do when I travel. I don’t think the fact that drug dealers do something necessarily translates into justification for a traffic stop.

          1. He was stopped for an unreadable temp tag.

            1. Allegedly. And assuming that’s actually true, it’s irrelevant to the issue of prolonging the stop to search for drugs, without any basis of any sort.

              Once he (a) checked that there was a tag and that it was legit, and (b) either wrote a ticket or gave a warning or whatever, that was it. Except that he saw the driver was black and so assumed that drugs were there.

              1. “Except that he saw the driver was black”

                Again with the mind reading. You do not know this, cannot possible know this.

                1. Well, I feel pretty confident that he did in fact see the driver. And it seems to be undisputed that the driver was (and still is) black. So I think I’m on pretty safe ground in saying that he saw the driver was black.

                  Now, it’s true that he did not proceed to say, “Because you’re black, I’m doing this.” But of course the standard for assessing the motive of a particular actor is not that said actor came out and said it. If so, the bulk of civil and criminal cases in court would fail, as the plaintiff/prosecutor would be unable to prove that the defendant had a particular intent or motive. Instead, finders of fact infer mental state from the available evidence.

                  Here, there’s no other conceivable explanation for spending hours searching for drugs in the car of someone whose only purported offense was having an obscured tag.

      2. I have a problem with the way the judge starts his opinion.
        Even Eric Holder admitted that the Ferguson shooting was legitimate…

        1. Even Eric Holder admitted that the Ferguson shooting was legitimate…

          That’s not an accurate summary of the DOJ’s findings.

    2. Conversely, a White driver treated as badly wouldn’t be entitled to redress? On what basis?

      The three things that bother me here are (a) the cop spending two hours on this — cops have incredibly short attention spans and I think he genuinely thought he’d find something. I’d like to know why.

      Knuckle-dragging racist doesn’t quite cut it as a complete answer here.

      Second, there are “Black” drugs and “White” drugs — courts have actually recognized that Fentanal is “Black” while LSD is “White”, and this may be on distribution rather than usage. When one thinks of powdered Cocaine, one thinks of a “White” drug while one thinks of Crack as a “Black” drug. Maybe that’s a racist presumption, but a racist cop would make a racist presumption.

      So why was the officer looking for Cocaine and not the more common opiates?

      Third, after he’d been there a half hour (or an hour, etc.) why didn’t he call for a supervisor to assist? Conversely, how does two hours elapse without the supervisor going “Car 54, where are you?”

      BECAUSE an officer has no idea what he/she/it is going to stumble into in a M/V stop, most departments try to have someone else fairly close for backup.

    3. Yup. I’ve been treated as badly by police with less reasonable suspicion.

  4. “and one, we can assume, was based in part on Jamison’s race.”

    Seems legit.

    No white man has ever been pulled over by a cop.

    1. You didn’t read the opinion. It wasn’t saying that the stop was because of race — though it probably was, given the pettiness of the reason for the stop — but that the “hunch” that there was something illegal that justified the search was because of race — because there was nothing legitimate to support that hunch.

      1. I read it. But thanks for always including an insult [see your comment to Brett above] in your comments.

        No white man has ever had his car searched for drugs.

        Better?

        1. Evicenceless hunches that lead nowhere except police hassling a black guy and breaking his stuff are something I’m pretty comfortable looking at with a jaundiced eye.

          Bob, though, requires individualized evidence before an inference of of racial motivation is allowed.
          Which is 1) a standard that will rarely turn up racism, and 2) is maybe something he should require from the police he’s defending.

          1. ” a standard that will rarely turn up racism”

            I understand why you dislike this standard. Finding racism when it doesn’t exist serves your political goals.

            1. Bob from OHIO, I understand why you like this standard. Ignoring racism when it exists serves your political goals.

              You should hold the police to that same standard Bob.

              1. It’s not just Bob’s right-wing political goals that are served by ignoring racism . . . his bigotry is served, too.

          2. Seems to be we also shouldn’t base bald accusation of racism on hunches…

            1. It’s not a hunch; it’s a differential diagnosis. Nothing else explains it.

              1. Assume a same or similar case except the driver and cop are both white. Since racism is removed as a possible cause and the rest of the story unfolds the same way anyhow… we are left with the question of “why?”. There MUST be a reason else the event, by definition, would not happen… but in this hypothetical it does. As such, a reason not based on race must exist. If it does then it is possible that such a reason can also be used by a white officer against a black motorist. Since that is now established as a possibility, we can not assume racism sans other evidence. That racism is hard to prove is not the same as denying it exists. The tenants of justice and logic don’t always make it easy to address all issues but we can’t throw them out the window simply so we can become champions of some nobel cause.

            2. Jimmy, when this cop or you or I make a guess based on experience, its a hunch and per se racist, when David does it, its a “differential diagnosis”

              Its science.

              1. Do you know what a differential diagnosis is? It’s not a hunch. It’s when you exclude all other possible explanations.

                Could this cop have excluded all other possible explanations for the driver traveling through his state besides drug trafficking? No.

                Can you come up with any other possible explanation for why he’d search a car for drugs for two hours without any basis at all?

                1. A desire to be a heroic drug warrior? Cast a wide net and hope for the best?

        2. No white man has ever had his car searched for drugs.

          What does that have to do with anything? No one is saying that only Blacks are ever subject to baseless searches or stops, just that they often are, and that race is a likely motivator when they are.

          I mean, you’re not serious about the “He just bought a used car!” crap, are you?

          More likely it’s case of “A Black guy in a Mercedes must be a drug dealer.”

          1. “race is a likely motivator when they are”

            No reason to automatically assume that.

            You see racism everywhere because it serves your political goals.

      2. “because there was nothing legitimate to support that hunch”

        The car was purchased in Pennsylvania, a state about a thousand miles to the east. The driver reported coming from either Arizona or Nevada, states which are about a thousand miles to the west. (NB: I may be wrong on the distance, but they *are* in different directions.)

        That’s an inconsistency that cops (and lawyers) are trained to look for.

        1. “The car was purchased in Pennsylvania, a state about a thousand miles to the east. The driver reported coming from either Arizona or Nevada, states which are about a thousand miles to the west. (NB: I may be wrong on the distance, but they *are* in different directions.)

          That’s an inconsistency that cops (and lawyers) are trained to look for.”

          You are really reaching here.

          There is no inconsistency here. Did Jamison buy the car on the same day he was stopped?

          The cop doesn’t know which if any states Jamison visited and where he was going. There is nothing inherently suspicious about driving across country.

        2. That’s an inconsistency that cops (and lawyers) are trained to look for.

          That’s not an inconsistency at all. You’re not any better at this than you were when you were Dr. Ed #1.

  5. Capitalizing Black and white differently just looks craven,

    1. The funny thing about the current race row we are seeing is the media is treating black (err… Black?) people just like the “magic negro” stereotype that we were all told previously was just racist.

  6. I’m no fan of absolute/qualified immunity, but I struggle with this: “First, it was obviously a search. McClendon’s body physically intruded into the car.” Obviously a search? He patted the door panel. Pat as in “c’mon man, if you don’t have anything illegal, let me take a quick look through this thing *pat pat*”? I can envision a circumstance where an officer might actually search by patting a vehicle component, a door panel even, if he suspects a false compartment or contraband hidden behind a panel. But those facts ought at least be alleged.

    I can’t think of a single judge in my relatively large (state, not federal) court system that would find the patting of an interior door panel of a vehicle during an attempt to secure consent to be a search. There’s a long line of cases that support the notion in the burglary context that a person sufficiently intrudes if “some part of his or her body, or some object under his or her control, penetrates the area inside the outer boundary.” I’m not aware of a line of search cases that holds anything similar in this context.

    Again, it’s a pat of a door panel, not a pat down of a pants pocket or jacket. Reprehensible and sanctionable conduct by the officer?
    Of course. But not a search IMO.

    1. That’s an interesting point, although I can imagine someone in my state disagreeing. You can find plenty of cases involving patting and touching things. Besides- as Orin didn’t note, under Jones, a simple trespass violates the 4th, so you’d have that here.

      I was thinking the issue is that once you start carving out exceptions to the no search rule like the two the judge named, you create a situation where people can disagree.

      And given that you and I and Orin disagree as to whether this was even a search, we have established that this was not clearly established under SCOTUS’s current regime.

  7. “It seems to me that that Judge Reeves likely was wrong, and that the officer was not entitled to qualified immunity. In particular, I worry that Judge Reeves may have misunderstood the relevant Fourth Amendment doctrine.”

    In my mind he ruled this way to highlight the fact that QI is highly discretionary and there is no real objective standard for when QI should be granted and when not. As a commenter stated above a judge could easily find some minor nuance that differentiates any precedent if they are looking to protect the police.

    If it’s close (which it sounds like it is) , it’s probably better to have an appeals court overturn and set a more binding precedent to chip away at QI.

    If it’s upheld, then his scathing dissent is in fact very justified.

    I believe this is a tactic to force higher courts to start drawing brighter lines.

  8. “I believe this is a tactic to force higher courts to start drawing brighter lines.”

    I concur.

  9. “—involving a Black driver allegedly badgered, lied to, and searched by a white police officer—”

    Since when are racial adjectives capitalized except by illiterates?

    1. Its the new thing.

      AP recently changed to capitalize black and brown but not white. WaPo includes white in its new capitalization standard.

      1. And why should anyone care? I’ve often found that the truly revealing thing is not the position one takes on an issue, but what one thinks is an issue.

        1. “And why should anyone care? ”

          Why did AP and WaPo care?

          1. They run a publication. Most publications value consistent style, so they have a stylebook. It’s what publications do. They have an institutional reason to care what is capitalized and what isn’t. Unless we work for AP or the WaPo, it is literally none of our business which way they choose, and it says something about outsiders that they get their undies in a twist over it.

            1. Based on your argument the AP et al had no reason to change since they already has uniform standards to address the issue of consistency.

              1. Publications can do what they damn please with their stylebooks, and don’t have to account to outsiders to “justify” any changes they feel like making. The AP and WaPo didn’t need a “reason” to change their stylebooks other than that they wanted to. Is the concept of something not being your business that foreign to you? Is there a “reason” that you, or anyone outside of the AP or WaPo, should care?

              2. “Uniform standards” change over time, whether it’s adding new words to the lexicon (is it email, e-mail, E-mail, or electronic mail?) or removing words now recognized to have different meanings (e.g., homosexual being replaced with gay).

    2. For a decade now, the APA style manual has mandated “Black” be capitalized.

  10. Issues such as this are more of a “consent” issue than qualified immunity.
    Any person can walk up and ask for your driver’s license, or to search your vehicle, and the person being asked this would tell the person to get lost, but when law enforcement does so, it comes with the implicit threat of retaliation. Am I going to be detained longer because I don’t allow the search or provide my ID.
    Even when the penal code is clear, and case precedent is clear, law enforcement will often exceed authority and demand ID, over and over, when the person can legally decline.
    Asking to search a vehicle five times is unacceptable, but many in law enforcement understand they such “consent” can be obtained simply by asking over and over, which is why this activity exists.
    Court rulings that limit the actions of law enforcement should be used to limit law enforcement actions, not be the opportunity to simply change the approach to “legally” engage in the same activity, via another route.
    If the officer in this case was forbidden to ask for a search, outside an articulate reasonable suspicion that a crime had occurred, we wouldn’t have to argue over whether qualified immunity applies in this case.

    Anyone who is even remotely familiar with First Amendment Audits will understand that far too many in Law Enforcement are very unfamiliar with actual clear cut laws, so expecting LE to be familiar with case law is ridiculous, and qualified immunity is built around the idea that all law enforcement is going to be familiar with case law.

    1. I believe that’s why the ACLU and others recommend following up the “No” with “Am I free to go?” or “Am I being detained?” It won’t end the encounter if the officer really wants to keep you, but it will eliminate the legal fiction the officer wants to maintain that you were completely free to avoid the search.

      Side note: why “articulate reasonable suspicion” ? I know there’s a strategy out their to slowly “probable cause” as the default requirement, simply by saying “reasonable suspicion” over and over. I don’t think we should play along.

      1. slowly -> slowly kill.

        I’d donate to the Reason Foundation in return for an edit function.

  11. What is interesting is that the Plaintiff did not bring any state law claims. Arguably, the police officer committed a trespass on chattel during the search as well as false imprisonment of the Plaintiff himself. The question then becomes whether the police officer enjoys any immunity under state law. It would seem that if he does enjoy state immunity, then he is acting under color of law and a federal remedy would be appropriate. If there is no state immunity, then the common law relies should suffice.

  12. It seems to me, though, that the officer’s constitutional violation was obvious. It therefore violated clearly established law, and the officer should not be entitled to qualified immunity.

    You can say that about probably 95% of QI cases. And yet, they persist.

    Outside the special-needs context, the Fourth Amendment law of searching a car is a clearly established bright-line rule.

    Were you able to type that with a straight face?

    This is the same judicial system that decided “I want a lawyer, dawg” was not a suspect invoking their right to an attorney. Re-calibrate to that nonsense, and the rest makes a lot more sense.

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