Yesterday, a divided panel of the Sixth Circuit decided a Fourth Amendment case on civil liability for police officers who respond to 911 calls to provide medical assistance. The case, McKenna v. Edgell, was written by Judge Karen Nelson Moore, with Judge Rogers dissenting. It seems to me that the majority opinion is based on several critical errors and misunderstandings. In this post, I wanted to explain why I think that.
I. The Facts and Trial
Following a 911 call, police officers were dispatched to a home to help a man who was alleged to have trouble breathing. The officers arrived at the home and found the man on his bed. The officers tried without success to get him out of bed, and in the course of getting him out of bed the officers ended up putting the man in handcuffs. (The man says the officers cuffed him, and then he became upset; the police say the man first became violent and then they cuffed him.) While the police were there, they looked around the house.
The man, McKenna, later sued the police officers for handcuffing him and searching his house in violation of the Fourth Amendment. According to McKenna, the handcuffing was an unconstitutional seizure in violation of the Fourth Amendment, and looking through the home was an unconstitutional search. The police had a very different version of the facts. Given the sharply disputed facts, though, the trial court denied qualified immunity. The defendants appealed the denial of qualified immunity, and the Sixth Circuit agreed (back in 2006) that the officers were not entitled to qualified immunity because of the factual disputes. The case was thus set for trial.
Before the trial actually occurred, the Sixth Circuit handed down a decision involving somewhat similar facts, Peete v. Metropolitan Government of Tennesssee, 486 F.3d 217 (6th Cir. 2007). Peete involved paramedics who restrained a man who was having a seizure; the case ruled that the paramedics were entitled to qualified immunity because there were no cases like it so no clearly established law was violated.
After Peete was handed down, the McKenna case went to trial. At the end of the trial, the district court judge read the jury instructions. The jury instructions included the following statements about Fourth Amendment law, drawn, apparently, from an effort to state the holding of Peete :
“If you find that the police were not conducting a search for criminal purposes, then the Fourth Amendment does not apply and Plaintiff cannot recover on his claim of unreasonable search.” Jury Instructions at 27 (Doc. 86). “Where the purposes [sic] to render aid in an emergency, rather than to enforce the law, the Fourth Amendment does not apply.”
The jury then returned a verdict in which it agreed to the following:
[D]efendants Honsowetz and Edgell intentionally committed acts that violated the plaintiff Scott McKenna’s federal constitutional rights not to be subjected to an unreasonable search or to excessive or unreasonable force during an arrest.
The defendant police officers then appealed, arguing that they did not violate the Fourth Amendment and in any event were entitled to qualified immunity.
II. The Sixth Circuit Decision
On appeal, the Sixth Circuit affirms. The court reasons that liability in the case hinges on whether the officers were acting in a law enforcement capacity or a medical-response capacity. If the officers were acting in a medical-response capacity, then under the holding of Peete, they are entitled to qualified immunity. If the officers were acting in a law enforcement capacity, however, then the officers are liable because it is clearly established that (1) “police violate the Fourth Amendment when they handcuff people whom they neither suspect of criminal wrongdoing nor believe to be a danger to themselves or others” and (2) that a person has a right “to be free from unreasonable searches, including a warrantless search in the absence of exigent circumstances or some other warrant exception.”
The court then concludes that whether the officers were acting in a law enforcement capacity or a medical-response capacity is a question for the jury, not the court. According to the court, the trial judge’s jury instructions effectively gave the jury the correct legal issue: The jury was instructed that it could only award liability if the purpose of the police conduct was criminal-enforcement rather than medical. By awarding a judgment to the plaintiff, the jury had therefore already implicitly answered the legal question by voting that the purpose was criminal-enforcement. The Sixth Circuit concluded that this implicit jury answer was binding as a matter of law:
The objective question in this case involves a highly factual characterization, not a legal concept at the center of Fourth Amendment law like reasonableness in the use of force, exigent circumstances, or probable cause. The law enforcement/medical-emergency responder distinction matters only in the narrow class of cases in which Peete might bar suit. And while this question involves more than determining what acts took place, juries are often asked to go beyond the finding of historical facts and to make objective characterizations in their role as factfinders.
Moreover, it is not a determination with which we have any unique experience or expertise, and not one for which we can turn to our case law for guiding principles. Like the jury, we would rely on the evidence about medical-responder conduct adduced at trial. Were we to determine this issue, we would simply be substituting our judgment about the overall character of a set of facts for that of the jury. And while leaving the issue to the jury may lead to varied results, this is true of other objective characterizations left to the jury, as well. As in those cases, we retain the authority to make the determination as a matter of law when a reasonable jury could come to but one conclusion.
The court then concludes that the evidence at trial was sufficiently mixed that the jury could reasonably conclude that the police had a law enforcement purpose. Thus the jury’s implicit legal conclusion is binding on the Sixth Circuit. The court does note that it could adopt a rule that “Peete protection” is available every time the police respond to a paramedic call, but they conclude that such a rule is undesirable and dangerous so the court rejects it. The court then turns to whether there was a constitutional violation at all, and concludes that McKenna was in fact seized. Because a seizure for criminal law purposes requires probable cause, the police violated the Fourth Amendment. Thus the court affirms.
Judge Rogers dissents, reasoning that the determination of whether the officers were acting in a law enforcement capacity or medical-responder capacity is a question of law. He then concludes, reviewing the evidence from the trial, judged in the light most favorable to McKenna, that the officers were acting in a medical-responder capacity.
III. My Analysis
I find the Court’s opinion rather odd for several reasons:
1) Qualified immunity requires the court to answer, as a matter of law, whether a reasonable officer would know his conduct was constitutional. This inquiry requires courts to look to cases with similar facts, or at least clearly announced principles from cases with less similar facts, to ask whether the officer violated a clearly established right. The panel in this case does something different: It sets up an artificial distinction between two possibilities: “Peete protection” if the officers acted as medical responders, and a clear violation of the law if the officers acted as officers.
But it’s unclear where they are getting the idea that these are the only two choices. That’s not how qualified immunity works: There are no artificial categories like “Peete protection” that get triggered as a matter of stare decisis based on dicta from a qualified immunity ruling in an earlier case. More generally, Courts can’t replace the general standard of qualified immunity, which considers all the facts, with a new rule that liability hinges on whether the officers were acting in a “law enforcement” or “medical responder” capacity (whatever that precisely means). They have to apply the general standard, and they didn’t do that here.
2) The Court’s incorrect framing of the issue — that qualified immunity hinges on whether the officers were acting in a “law enforcement” or “medical responder” capacity — then forces the court to confront the puzzling question of who gets to classify the “capacity.” At this point we’re veering off into constitutional metaphysics: The panel has invented a non-existent test, and it then confronts the puzzle of who gets to apply the non-existent test it has just imagined.
The court’s subsequent effort to explain and apply the test strikes me as extremely muddled. The court says that this a jury question because the court has no special expertise and the judges would just try to do the same thing the jury did. But this begs the question: What kind of test is it? What was the test that the jury was supposed to apply, and that a court should apply? We only get a few hints here and there in the opinion. For example, the court tells us, the test isn’t only that the officers were officers. But exactly what the test means is unclear.
Further unclear is how we know the jury applied it. The jury instructions were a pretty terrible summary of Fourth Amendment law: It’s just wrong to say that a non-law-enforcement means the Fourth Amendment doesn’t apply. Why should a trial judge’s failed effort to give the jury guidance on how the Fourth Amendment works, which then led to a jury verdict, be entitled to deference as a matter of law? It doesn’t make sense to me.
3) Part of the problem is that the court’s two asserted rules — – that qualified immunity hinges on whether the officers were acting in a “law enforcement” or “medical responder” capacity — themselves misstate the law. For example, the court explains its conclusion that the officers clearly violated the law if they acted in a law enforcement capacity with the following claim: “[I]t is certainly clearly established that police violate the Fourth Amendment when they handcuff people whom they neither suspect of criminal wrongdoing nor believe to be a danger to themselves or others.” But that’s not actually an accurate statement of the law (and not one reflected in the sources cited by the court). And even if it were accurate, whether the officers were there in a law enforcement capacity doesn’t answer how that test applies.
Similarly, the court’s statement that a person has a clearly established right “to be free from unreasonable searches” commits the cardinal sin of qualified immunity law of stating the right only at the most general level. The Supreme Court has repeatedly emphasized that this isn’t the way to do qualified immunity: The right has to be specific to the facts, not generic. As a result, the court never answers the question that it was supposed to answer: Whether, construing the facts in the light most favorable to the plaintiff, the officers violated the plaintiff’s clearly established specific constitutional rights.