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Posts Tagged ‘qualified immunity’

The Supreme Court today unanimously overturned a Fourth Circuit decision that affirmed the denial of attorneys’ fees in a civil rights case. The Court in Lefemine v. Wideman vacated a Fourth Circuit decision that affirmed the denial of “prevailing party” attorney’s fees to a plaintiff who had secured declaratory and injunctive relief but no money damages.

Unanimous summary decisions like this one are a problem for any inferior court. Yet some courts deciding some issues seem more likely to result in such decisions (such as the Sixth Circuit operating under AEDPA or the Ninth Circuit examining qualified immunity). The Fourth Circuit has generally steered clear of this kind of unanimous overturning. What happened here?

It looks like the Fourth Circuit panel simply misapplied Supreme Court precedent, in large part because of an earlier circuit precedent (from 1993) that also (but without correction) misapplied Supreme Court precedent.

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The Fourth Circuit held yesterday that bail bondsmen are not entitled to qualified immunity. Judge Diaz wrote the opinion for the court in Gregg v. Ham, in which Judge Niemeyer and Judge Motz joined.

The appeal came from a jury verdict in favor of a disabled woman whose home was invaded by bail bondsmen in search of a fugitive who had passed through her property a couple days earlier (when fleeing a chase). Given the facts of the case, it may be that the bail bondsman would not have been entitled to qualified immunity even if eligible for it, but the appeals court held categorically that bail bondsmen are not entitled to qualified immunity.

(Although it makes no difference to the outcome here, a cautionary note is in order with respect to the opinion’s description of qualified immunity analysis. Relying on the Fourth Circuit’s en banc decision last year in Henry v. Purnell, the opinion states that “[t]he defense of qualified immunity involves a two-step procedure “that asks first whether a constitutional violation occurred and second whether the right violated was clearly established.” This formulation leaves out the Supreme Court’s holding in Pearson v. Callahan that courts are not bound to apply these two steps sequentially.)

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Judge Wilkinson authored an opinion for a three-judge panel of the Fourth Circuit (Wilkinson, Shedd, Norton by designation) affirming the grant of qualified immunity to Maryland prison employees in Braun v. Maynard. The court holds that strip searches following the positive alert of “a portable ion scanning machine capable of detecting minute amounts of controlled substances” do not violate clearly established federal law implementing the Fourth Amendment.

One interesting tidbit is Judge Wilkinson’s citation of the Supreme Court’s decision in City of Ontario v. Quon, which the opinion invokes as support for the proposition that “[i]t is often difficult for judges, let alone prison officials, to apply Fourth Amendment concepts to cases involving novel technology.” Justice Kennedy’s opinion for the Court in Quon does have a lengthy discussion of Fourth Amendment problems raised by new technology. This discussion drew the ire of Justice Scalia, who thought the majority’s “excursus on the complexity and consequences” of answering a question about the correct application of the Fourth Amendment to new technology not only “unnecessary” but also “exaggerated.” Justice Scalia wrote: “Applying the Fourth Amendment to new technology may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)–or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions–is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse of disregard of duty.”

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