Apr 19

Swallowing the Fourth Amendment?

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The Fourth Amendment of the U.S. Constitution is meant to protect citizens from unlawful searches and arrests conducted by police officers. 

However, when citizens sue police officers for violating their Fourth Amendment rights, police officers will often ask courts to dismiss the case on the basis that they had qualified immunity for their actions. The qualified immunity rule, which is a court created rule, basically says that even when an officer violates someone’s Fourth Amendment rights in a particular case, if prior court decisions have not clearly established that the officer’s specific conduct was unconstitutional, that officer cannot be sued for his or her conduct.

Lawmakers and courts have set forth both sensible and obvious reasons for this rule:  the principal reason being to make it more difficult for individuals to successfully sue law enforcement officers, out of fear that lawsuit exposure will make officers reluctant to perform their jobs effectively. However, what courts and lawmakers have failed to acknowledge is the accompanying danger of this rule: which is that it creates an incentive for officers to continue to violate the constitutional rights of citizens without fear of being held accountable.

I was reminded once again of the perverse incentive that this rule creates in reading a recent federal court decision.  In the case of De La Rosa v. Mark White, an officer stopped the plaintiff’s car for a routine traffic stop and after completing the stop, called drug dogs to the scene to search the plaintiff’s car even though the plaintiff did not consent to the search, and even though the officer did not have a reasonable belief that the plaintiff was transporting drugs in his car.  For this reason, the plaintiff sued the officer for violating his Fourth Amendment rights. The court, while acknowledging that it was questionable whether the officer’s conduct complied with the Fourth Amendment, nevertheless ruled that the officer was entitled to qualified immunity for his actions essentially because there did not exist a large enough number of prior court decisions condemning the officer’s specific conduct.  As I finished reading this decision, the one conclusion that remained etched in my mind was that the decision would only serve to embolden future police officers to engage in the same constitutionally suspect behavior

To prevent the qualified immunity rule from completely swallowing the Fourth Amendment, I believe Courts must shift their focus in determining whether the rule applies. The critical question must not be whether prior courts have found the officer’s specific conduct to be unconstitutional, but rather, in analyzing the officer’s conduct, whether the facts and law of the case combine to show a clear Fourth Amendment violation. If the violation is clear, the qualified immunity rule should be held not to apply.  If the violation is not clear, the rule should be held to apply.   Using a Fourth Amendment excessive force case as an example, a clear violation would be an officer using unnecessary force to arrest someone that was not resisting arrest, was not suspected of committing a serious crime, and presented no safety risk to officers at the scene. The U.S. Supreme Court, in Tennessee v.. Garner, has established that such officer conduct likely violates the Fourth Amendment.

We as citizens should not be comfortable with our courts interpreting the Constitution to shield police officers from suit who clearly violate a citizen’s Fourth Amendment rights. We would do well to remember that if officers are given free rein to violate the Fourth Amendment rights of criminal suspects, they are equally capable of violating your Fourth Amendment rights as a law-abiding citizen.   By shielding police officers from liability under these circumstances, we actually encourage officers continue to trample on these rights.

The qualified immunity rule serves a sensible and needed purpose. We should not, however, allow this rule to swallow the Fourth Amendment whole.

 Oliver Nelson III is a trial attorney who specializes in the areas of Civil Rights and Personal Injury

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