A Substantial Threat to Civil Rights Claims and a Potentially Fatal Blow to Eighth Amendment Claims

The author discusses “ultra-particularity” – a clever tool used to invoke qualified immunity and shield officers and jailers from liability. The article explores Supreme Court and circuit court opinions, and what it takes to prevail on a claim outside of the more commonplace excessive force claims.

Brief of Amici Curiae National Association of Criminal Defense Lawyers, American Civil Liberties Union of Northern California, and American Civil Liberties Union of Southern California in Support of the Petition for Rehearing En Banc.

Argument: The panel decision failed to recognize that the Fourth Amendment plainly prohibits police officers from stealing private property for personal gain. The Fourth Amendment was designed in part to prohibit the Colonial Era practice of officers stealing private property. Case law confirms that the Fourth Amendment prohibits officers from stealing private property while executing a warrant. Rehearing is necessary to prevent immunizing serious law enforcement abuses.

Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: Qualified immunity regularly denies justice to those deprived of federally guaranteed rights. Official misconduct is a pressing public concern, and Section 1983 liability is often the law’s only mechanism for remedying it. Qualified immunity regularly excuses public officials for unconstitutional misconduct. Qualified immunity imposes prohibitive and unjustified costs on civil-rights litigants. Qualified immunity harms public officials by eroding public trust and undermining the rule of law.

Brief for Amici Curiae the National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, American Civil Liberties Union Foundation, and New York Civil Liberties Union Foundation in Support of Plaintiff-Appellant Alexina Simon.

Argument: It was clearly established that defendants were required to comply with the warrant’s express terms and could not continue to detain a person arrested pursuant to the warrant by mistake. This Court should reject the lower court's dangerous holding that law enforcement officials who engage in an obviously unlawful practice should enjoy immunity from suit because such violations are 'common.'

Amicus curiae brief of the National Association of Criminal Defense Lawyers, the CATO Institute, and the American Civil Liberties Union in support of respondents.

Argument: As a matter of policy as well as precedent, absolute immunity should not be extended to shield from civil liability prosecutors who function side by side with police detectives during the investigation of a crime to frame a ‘suspect’ by fabricating ‘evidence’ and then give that ‘evidence’ its intended use by introducing it at a criminal trial. Petitioners do not enjoy qualified immunity for fabricating evidence during the investigative stage merely because they, instead of another prosecutor, presented that evidence at trial.

Amicus Curiae Brief of the National Association of Criminal Defense Lawyers Supporting Respondent.

Argument: If the Court of Appeals failed to determine whether petitioners’ conduct violated Rickard’s clearly established constitutional rights, this Court should remand the case to the Court of Appeals with instructions to do so. If the Court remands the qualified immunity issues, it should not reach the constitutional questions. A number of proffered justifications are inconsistent with clearly established law in 2004. A number of the justifications proffered by petitioners rest on disputed facts. The government does not advance a sound basis for concluding that the defendants are entitled to qualified immunity.

Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: Qualified immunity regularly denies justice to those deprived of federally guaranteed rights. Official misconduct is a pressing public concern, and Section 1983 liability is often the law’s only mechanism for remedying it. Qualified immunity regularly excuses public officials for unconstitutional misconduct. Qualified immunity imposes prohibitive and unjustified costs on civil-rights litigants. Qualified immunity harms public officials by eroding public trust and undermining the rule of law.

Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Plaintiff-Appellee.

Argument: Misconduct by prosecutors and law enforcement officers is far too common. Prosecutors and law enforcement officers face few consequences for their misconduct. Civil rights lawsuits – and the threat of personal liability – play a critical role in deterring misconduct by prosecutors and law enforcement officers.

Brief of Cross-Ideological Group Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari), including Cato, NACDL, and numerous others listed in the appendix.

Argument: Qualified immunity regularly denies justice to those deprived of federally guaranteed rights. Official misconduct is a pressing public concern, and Section 1983 liability is often the law’s only mechanism for remedying it. Qualified immunity regularly excuses law enforcement for unconstitutional misconduct. Qualified immunity imposes prohibitive and unjustified costs on civil-rights litigants. Qualified immunity harms law enforcement officials by eroding public trust and undermining the rule of law.