The Volokh Conspiracy
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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.
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.
