Police

A Promising Qualified Immunity Decision From a Potential Biden SCOTUS Nominee

Judge Ketanji Brown Jackson denied qualified immunity to the officers involved in Patterson v. United States.

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President Joe Biden is reportedly considering naming federal Judge Ketanji Brown Jackson to fill the vacancy on the U.S. Court of Appeals for the District of Columbia Circuit that will soon be left when Judge Merrick Garland leaves that court to assume the role of attorney general. Sometimes known as the "second-highest court in the land," the D.C. Circuit is frequently a stepping stone to a spot on the U.S. Supreme Court. In other words, if Biden names Jackson to the D.C. Circuit, it is a good sign that she is on Biden's SCOTUS shortlist.

So what does Jackson's judicial record tell us about her?

Criminal justice reform advocates will likely be heartened by Jackson's decision in the 2013 case Patterson v. United States. At issue was the arrest of an Occupy D.C. protester named Anthony Michael Patterson for using profanity in a public park. According to one of the arresting officers, Patterson yelled "fuck white people" when he saw several Tea Party activists on the scene at an Occupy D.C. protest in Washington's McPherson Square park. After another officer told Patterson to stop cursing, Patterson allegedly yelled "fuck" a few more times. Patterson was ultimately arrested for disorderly conduct. That charge was dropped a month later.

Patterson sued the officers over the bogus arrest. Here's how Jackson described the suit in her opinion for the U.S. District Court for the District of Columbia: Patterson "alleges that Sergeant [Todd] Reid violated Patterson's First Amendment rights when he ordered Officers [Jennifer] Lemke and [Matthew] Cooney to arrest Patterson solely based on the content of protected speech in the absence of probable cause to arrest him for disorderly conduct and that Officers Lemke and Cooney violated Patterson's First Amendment rights when they complied with that order and actually arrested him."

The officers moved to have the lawsuit dismissed. Among other arguments, they maintained that their actions were shielded from civil litigation under the doctrine of qualified immunity. According to the Supreme Court's 1982 ruling in Harlow v. Fitzgerald, state actors are entitled to immunity from civil suits arising from their official conduct so long as the conduct that they're being sued over "does not violate clearly established statutory or constitutional rights." In effect, the officers took the position that it was not "clearly established" that the First Amendment prevents somebody like Anthony Michael Patterson from being arrested for using certain four-letter words in public.

Jackson not only denied the officers qualified immunity, but she practically laughed them out of her courtroom. "The right to be free from a retaliatory arrest in the absence of probable cause is clearly established in this jurisdiction," she wrote. Indeed, "a police officer is unquestionably on notice that arresting a speaker solely based on the content of his speech and without probable cause to believe that he has committed a crime is a violation of the First Amendment."

The case easily could have turned out differently in the hands of a different judge, one who was perhaps more deferential toward the police or was simply more amenable to pushing qualified immunity doctrine to the hilt. After all, other federal judges have awarded qualified immunity in cases of truly egregious police misconduct.

Jackson took a different approach. "Because no reasonable officer could conclude that there was probable cause to believe that Patterson was committing disorderly conduct on the facts as alleged in the complaint," she concluded, "the complaint ably supports the claim that Patterson was arrested in retaliation for his protected speech and that the individual officers therefore violated Patterson's clearly established First and Fourth Amendment rights."

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  1. She dismissed it because he yelled “Fuck White People” and your framing isn’t fooling anyone.

    Had he yelled “Fuck Niggers” we’d be seeing an entirely different outcome.

    1. Indeed.

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      2. Well she should have a 1st amendment track record in general that could be checked. I’m too lazy to do it myself, that’s why Root makes the big bucks. But having at least one decision against QI is a positive.

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    2. I wouldn’t be surprised at either outcome. What really needs to be known is more than just one case from 2013. It’s one thing to not defer to the government; it’s another thing entirely to not defer to social justice ethics. I suspect that if she’s on Biden’s short list, she’s a social justice warrior more than she’s anti-government.

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    3. There’s absolutely no question.

    4. Some of you guys will always find a reason to lick boots.

      1. that doesn’t even make sense

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      2. Cynicism is state worship now?

        1. I believe he’s the dude that says Andrew Cuomo is a hero because of his coronavirus performance, so weight his words appropriately.

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    7. Sad but probably true. And Reason would be cool with that.

  2. Nice job. Now if we could get maybe more of these rulings when the case is about an unarmed mom shot in the face.

    1. Do you guys have any idea how simultaneously pathetic, traitorous, and dumb you look when you try to make Ashli Babbitt into a martyr?

      1. solid argument

      2. Yup. Good shoot. Totality of the circumstances. Smooches.

        Did I get that right?

      3. Do you have any idea how pathetic, traitorous, and dumb you look when you repeatedly defend a cop shooting a woman in the face for trespassing?

      4. Geez, the excuses you find to keep licking boots.

      5. I think de oppressor libtard manages to simultaneously pathetic despite being only one individual. Wasn’t about Babbitt, libwit. Click Paul’s link. He chose this example because he outsmarts you before you even post your drivel.

        1. Edit: I think de oppressor libtard manages to look simultaneously pathetic despite being only one individual.

          Fuck I’m skipping more words than Franz Kafka these days.

      6. Is it anything like as pathetic, traitorous, and dumb as you look praising Andrew Cuomo for his handling of COVID or defending rioters who murdered 3 dozen people and caused 2 billion dollars worth of property damage over a 6 months period while simultaneously histrionically shrieking about treason and sedition because of a broken window?

    2. Here we go. The far right equivelent of “I can’t breathe” will never go away. Michael Brown was a criminal, he caused his own death. Babbitt is no different.
      If she wasn’t breaking the law and threatening law enforcement by entering through the window, she would be alive today. Her actions, not the government’s, caused her death. Babbitt should have thought about the welfare of her kids before she decided to to advance toward an armed, scared man with a firearm and the legal right to use that firearm. Don’t stoop to the level of Michael Brown’s family and BLM. It is not a good look. Be better than them. Her kids should not be used as a cudgel to justify her moronic actions.

      1. Man, whole lot of projection going on when I wasn’t referring to anything that happened on Jan 6 2021.

        1. Lol i like how you picked the example of Lilian Alonzo before posting your comment to outsmart the libwits before they even read it.

      2. The fuck? PoliceOne is that way.

        You don’t get to use deadly force unless you can articulate an imminent threat of death or serious bodily injury. An unarmed protester climbing through a window, when there are other armed police officers right next to you, doesn’t meet that standard. Conversely, some guy wrestling with you, and trying to take your pistol from you? That does meet the standard.

        Let’s speak plainly. That DC police officer was told to kill anyone who crossed past that door. We’ll never hear who gave him that order, and he’ll never admit it until his deathbed a bunch of years later, when one of his friends or relatives admits it to some historian or biographer, but that’s what likely happened. The fact that’s an illegal order, more suitable for some banana republic’s palace guard than an law enforcement officer in the United States, doesn’t matter.

      3. What if I think neither death was justified use of force? Does that make me far right?

        1. Makes you kind of an idiot since Michael Brown tried to steal a cop’s gun and was shot during the ensuing struggle while Ashli Babbitt was shot in the face at point blank range for climbing through a broken window, unarmed.

      4. “Here we go”

        Fuck off jeff

      5. Michael Brown was a criminal, he caused his own death. Babbitt is no different.

        Yeah you’re right. Someone who devoted a dozen years of their life to service and then makes dumb moves in a moment of righteous anger is no different from a street criminal.

        1. A man who was 6’4″ and and nearly 300 lbs is no different from an average-sized woman. They clearly represent the exact same level of threat.

      6. Michael Brown committed strong arm robbery on video and then tried to jump a cop and steal his gun. Ashli Babbitt tried to step through a window that someone else had broken while there was a four man SWAT team 10 feet behind her with with M4 rifles trained on her back. But other than that, yeah, it’s almost exactly the same.

        1. Convenience store owner said the Michael Brown was NOT the one that strong arm robbed him.

          1. Oh, and if he was the robber, where were all the cigarellos he allegedly stole? None found at the scene.

            1. That was a fake video and fake 911 call requesting police? Don’t believe your lying eyes. He really did have his hands up when he was shot but the witnesses just didn’t see them.

  3. Wait, who’s the bigger threat to Freedom of Speech again?

    Online marketplace eBay Inc. EBAY -1.65% said it is working to prevent the resale of six Dr. Seuss books that were pulled earlier this week by the company in charge of the late author’s works because they contain offensive imagery.

    “EBay is currently sweeping our marketplace to remove these items,” a spokeswoman for the company said in an email. New copies of the six books were no longer for sale online at major retailers such as Barnes & Noble on Thursday afternoon, which put eBay among the most prominent platforms for the books to be sold.

    Hundreds of listings for the six books could be found on the platform as of Thursday morning, though the number appeared to be lower than it was on Wednesday evening. The eBay spokeswoman said that it would take some time to review seller listings and that the company was monitoring newly published listings.

    1. Can we officially add book burnings to the not-so-failed January coup checklist?

      1. We’re 2 months in and I’ve already got enough material for the 12 Days of Reason, 2021 edition.

    2. pRiVATe coMpANiES!!!!!!!!

  4. “A Promising Qualified Immunity Decision From a Potential Biden SCOTUS Nominee”

    While Damon Root (or Reason editors) teased readers with this headline, the article never mentioned which justice(s) might be likely to resign or die in the next four years.

    Thankfully for America, it is doubtful that Biden or Harris will have an opportunity to nominate anyone to the SCOTUS.

    1. Why can’t they make an opportunity?

      1. They did with Scalia.

    2. While Damon Root (or Reason editors) teased readers with this headline, the article never mentioned which justice(s) might be likely to resign or die in the next four years.

      They were probably thinking more of the 6 new justices President Harris will be appointing in the next year after they increase the size of the supreme court.

  5. There is a prolific paid troll here in the Reason comments who uses the moniker “White Knight”.

    This troll’s purpose is to try and deflect criticism of the Democratic Party, and, to a lesser extent, Reason Magazine articles and writers who advance the agenda of the Democratic Party.

    In order to halt conversation, the trolls here use disruption techniques.

    White Knight’s favorite disruption technique is to demand a citation even for the most ordinary or obvious statements. Keep in mind that these requests aren’t just reserved for controversial statements but often for matters of common knowledge (e.g. the formula for water is H2O). The purpose of this is twofold:

    In the first, a commenter will waste time and energy hunting down a citation.
    When such a citation is posted White Knight will then redefine the criteria and claim that the citation is worthless; or, if unequivocal, White Knight will ignore the response, and move elsewhere. Either way the purpose of disruption was served.

    In the second, if the commenter ignores White Knight or refuses to play along, White Knight will then follow the commenter along, claiming at every post that they are dishonest and can’t back up their statements. Here too, harassment and disruption are the purpose.

    It is important for us all not to enable White Knight.
    If you see White Knight making an inane citation request over an uncontroversial claim, please respond by posting “Fuck off, White Knight”, or by pasting this warning.

    1. I simply respond with HO2.

    2. Indeed.

    3. There is a purpose to those dashed vertical lines by the comments.
      You read the handle, and then can quickly scroll past the troll.

    4. Again, flattered you think about me so much you felt compelled to post this on a page where I had not even visited, and I do not plan to revisit.

      1. “I do not plan to revisit ….”

        That’s a lie.

  6. How about an article criticizing all of the left wing propagandists (who call themselves journalist or reporters) who repeated Pelosi’s most recent lie (i.e. that there would be an insurrection by right wing extremists at the DC Capitol yesterday) as if it were factual?
    https://thefederalist.com/2021/03/05/corporate-media-capitol-police-rumors-of-another-capitol-attack-again-prove-to-be-a-dud/

  7. OT: “President Biden’s use of an old stereotype is hurtful to modern Europeans, Asians & Americans who inherit about 2% of their genes from Neanderthal ancestors,” wrote [Marco] Rubio

    While this is funny as shit, it also gives credence to this kind of woke bullshit. Not sure how I should feel about it. Any thoughts?

    1. Mocking it defeats it.

      1. 100% true, just not sure if a Senator is the right person for the job. It’s like Trumps tweets, funny as hell but at the end of the day they were counterproductive.

  8. I don’t know about her being a Biden pick. On the plus side, she’s a black woman and she’s a graduate of Harvard Law School, on the negative side, she’s married to a man who self-identifies as a man and she (as far as I can tell) self-identifies as a woman, she was born in the United States and (again, as far as I can tell) has no prison record nor is she a member of some pagan cult, nor is she handicapped, so she sounds kind of marginal at best.

    1. lol

  9. Oh good anti cop and sides with the guy who yells fuck white people.

    Great pick dementia Joe.

    1. Are you sure you’re a libertarian? You seem to be viewing politics and law through some kind of team sports lens.

      1. When people are pushed into “war” (culture war in this example, I guess), they tend to form units. That’s normal. The left is masterful at that and has been hiving up hard, now everyone else is forced to do the same. Oppressor libby thinks that makes society and politics an ugly place? Then I might agree with oppressor.

      2. Also, buckleup doesn’t even have much tribalism in their post. Again, check the lefty hivemind and comment again. I’m sorry, but life is gonna be horrible in the coming years for oh so enlightened “independents” like you, the amazingly effective voice of reason that’s sitting somewhere in the corner commenting oh so maturely and intelligently, trying to impress everyone with their little pocket ivory tower, while people in the center of the room fight over real issues in reality. But you are sooooo much better, and sooooo much more ideologically consistent, my mouth gets all watery thinking about your beautiful mind.

      3. The irony of this comment is astonishing.

        1. Not when you realize that cytotoxic is a piece of shit lying fatass who lies.

    2. Explain why someone who yells “fuck white people” should be arrested?

      1. Wait until they come to your neighborhood.

      2. Because someone who yells “fuck niggers” certainly would be, and unequal treatment before the law is bad.

  10. You’re grasping Root (and you’re one of the better ones at this shithole rag).

    According to the Supreme Court’s 1982 ruling in Harlow v. Fitzgerald, state actors are entitled to immunity from civil suits arising from their official conduct so long as the conduct that they’re being sued over “does not violate clearly established statutory or constitutional rights.”

    The Lady Judge ruled on what the law is. Your hypothetical grizzled old white “Blue Lives Matter” judge wearing Klan robes and a MAGA hat would have ruled the same way. She didn’t break any new ground in setting a precedent or opening up further challenges to qualified immunity.

    1. It’s hard to say. It’s possible we have an example of an easy case with clearly define case law.

      I still remain critical of Qualified Immunity rulings where some unarmed person who was clearly not a threat is shot and the judge determines that there’s “no prior case law establishing you have a right to not be shot”. Having said that, the whole Qualified Immunity argument has become so muddy and so rife with opinions that don’t understand legal issues, that I find myself repeatedly not so much defending Qualified Immunity (although there is a valid defense of it in limited circumstances) but pointing out the flaws in the arguments of people wanting it eliminated.

    2. I don’t think you’ve been paying attention to QI jurisprudence, nor did you even follow the link in the article.

  11. You’re really stretching for that “promising”.

    1. It’s like cheering a hit in slow-pitch softball.

      1. That isn’t fair. I struck out in slow pitch once. Too many drinky.

  12. Surely what he yelled is sexual assault. So yeah, probable cause.
    The F-word should be like the N-word; unspeakable at all times, and questionable even as “the F-word”.

    1. Agreed. I think 1984 has a bunch of inspirational ideas on how to regulate speech the right way.

  13. Can Reason please stop pretending that Marxists are principled? Just because Hitler agrees that 2+2=4 doesn’t mean he’s your ally.

    Also, why not report on the facts of the encounter? Why just assume that her conclusion is correct? That’s pretty harsh to go from “I disagree that his conduct was disorderly” to “this was a retaliatory arrest based on content.”

    I read the facts of the case and based on the evidence, while I don’t think there were enough facts provided to determine if an arrest should or should not have been made, this definitely was not a retaliatory arrest. The officers were professional and very calm throughout the entire process. There were cases brought against them for filing false statements in their reports and those cases were dropped. The description by the judge doesn’t paint a clear picture of what happened. There’s no mention of tone, gestures, or even a full transcript of the conversation.

    Is this normal for legal opinions to not summarize the facts appropriately? I don’t see the point of publishing an opinion if you had to be in the courtroom start to finish to understand it.

    1. Can Reason please stop pretending that Marxists are principled? Just because Hitler agrees that 2+2=4 doesn’t mean he’s your ally.

      They can easily see this when it comes to, say, Ron Paul Republicans whom they despise with a hatred hotter than a thousand suns. Gee, you’d almost think Reason was populated by Marxists whose only guiding principle is advancing Marxism.

  14. Now tell us how she feels about legislating from the bench.

    1. Probably feels just as good as the Supreme Court that decided Harlow v Fitzgerald did when they legislated from the bench.

  15. Isn’t she just parroting words recently spoken in a SCOTUS decision? I don’t know that following precedent
    makes you a warrior for “truth justice and the American way”.

    1. Parroting precedent making one a warrior for the American way Marx the sad end of freedom and a transition into a really Kafkaesque renaissance of suppression. Ohr-well, there could be worse, right? Actually, no. In fact, I Kant even stop Randing about it. I’m gonna overton my window and smoke a cigarette now.

  16. This is ridiculous. The man was attempting to start violence with uncivil behavior and the police removed him after a warning. Isn’t keeping the peace part of a police officers job discription?
    One minute a leftist judge will say the 1st Amendment is restricted such as screaming fire in a crowded movie theater and then like this implies it is unlimited. I think this judge makes decisions based on race and color not law and common sense. If not arrested and this man would have received a well deserved beat down she would have blamed the police for not stopping it before the violence started and blamed them for the injuries. If they used the 1st Amendment for defense she would have sternly admonished them that the 1st Amendment is limited and they should have known the man’s words would provoke violence.

  17. Parroting precedent making one a warrior for the American way Marx the sad end of freedom and a transition into a really Kafkaesque renaissance of suppression. Ohr-well, there could be worse, right? Actually, no. In fact, I Kant even stop Randing about it. I’m gonna overton my window and smoke a cigarette now.
    مسلسل زهرة الثالوث الحلقة 62 facebook قصة عشق مترجمة

  18. Can Reason please stop pretending that Marxists are principled? Just because Hitler agrees that 2+2=4 doesn’t mean he’s your ally.

    They can easily see this when it comes to, say, Ron Paul Republicans whom they despise with a hatred hotter than a thousand suns. Gee, you’d almost think Reason was populated by Marxists whose only guiding principle is advancing Marxism.
    مسلسل زهرة الثالوث الحلقة 62 facebook قصة عشق مترجمة

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