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Why Did the White House Pass Over McConnell?:
Over at Balkinization, Marty Lederman has a very interesting post on a passage in Jan Crawford Greenberg's excellent book on why the White House passed over Judge Michael McConnell for a seat on the Supreme Court. The passage states:
With some, it took one bad opinion to knock them out. [F]ederal appeals court judge Michael McConnell was a favorite of some conservatives, but he'd written a decision earlier in the spring that would have subjected police officers to sweeping liability for actions while on the job. That was enough for [Deupty White House Counsel William] Kelley.
  The decision in question is Lawrence v. Reed, a case that involved a Wyoming Sherriff's decision to order the removal of about 70 unsightly derelict vehicles from a woman's property pursuant to a local ordinance. Under the local ordinance, the police could notify the owner of the vehicle of the city's plan to remove derelict vehicles, and then, after waiting a period, it could remove them. A city fair was coming, and the town council wanted these particular vehicles removed. The Sherriff met with the city attorney and the city manager to discuss how to enforce the ordinance, and they agreed on an arrangement. The Sheriff ended up taking away the 70 vehicles and bringing them to the dump. The owner of the vehciles then sued the government and the sherriff for an unlawful taking of her vehicles without a hearing required by the Due Process clause.

  In the Lawrence case, the Sheriff conceded that he had violated the owner's constitutional rights. With the benefit of hindsight, the ordinance was clearly unconstitional, as it allowed the Sheriff to take private property without a hearing required by the Due Process clause. The question in the case was whether the Sheriff was entitled to qualified immunity, on the theory that he reasonably could have believed that his conduct was constitutional. Judge McConnell concluded that the answer was "no," as a reasonable official should have realized that the ordinance was unconstitutional and that he could not take the vehicle without a hearing. He wrote:
What [the Sherriff] really wants us to conclude is that it is generally reasonable to rely on the city attorney's advice—that it is the attorney's job, not the police officer's, to point out when a statutorily authorized course of conduct violates the Constitution. But this is an argument that officers should not be held responsible for knowing the law in the first place, not that consultation with the city attorney somehow interfered with that knowledge. Given [the Sheriff's] concession that his conduct violated Mrs. Lawrence's clearly established rights, and given the Supreme Court's admonishment that "a reasonably competent public official should know the law governing his conduct," Harlow, 457 U.S. at 819, Mr. Reed must point to something in his consultation with the city attorney that prevented him from knowing the law. This he has not done.
  Judge Hartz dissented, arguing that a reasonable officer would think his actions were legal:
In the present case [the Sheriff] fully informed the City Attorney of the relevant surrounding circumstances and how he intended to proceed. The City Attorney gave his imprimatur. It would be contrary to [existing law] to tell officials like the sheriff that they cannot rely on their chief nonsubordinate government attorneys but must postpone action (to conduct their own research or call a professor at the nearest law school?) or risk being sued.
  Marty Lederman asks why the White House ruled out McConnell based on this opinion:
[T]he court's actual holding in Lawrence is exceedingly narrow and fairly uncontroversial, and has almost no precedential effect.

So the mystery, then, is why this decision might have been so troubling to the White House that it served to disqualify Judge McConnell from consideration. Here's one possibility, the only one I can think of that makes any sense at all (unless Greenberg's sources are simply wrong):

. . . [If] Lawrence is properly understood as a case not about the arcane question of when the law is "clearly established" for purposes of qualified immunity, but instead as a decision rejecting the idea that reliance on government counsel is necessarily a "reasonable" ground for engaging in conduct that would otherwise be understood as unlawful, the White House's unease with Judge McConnell becomes much more explicable. This is, after all, an Administration in which officials of the CIA, NSA and Defense Department often balked when requested to engage in conduct of dubious legality ("enhanced" interrogation techniques; warrantless electronic surveillance), only to be assured that they could reasonably rely upon very unorthodox legal advice from the Department of Justice — including, in the case of the August 2002 OLC torture opinion, advice about the Commander-in-Chief Clause that "never once discussed" much of the "applicable constitutional law" (such as the Steel Seizure decision and Little v. Barreme).

. . . [O]ne can easily imagine why Deputy Counsel Kelley might have been concerned by Judge McConnell's reasoning in Lawrence. If one or more Administration officers or employees later found themselves facing possible criminal sanction, and they were to invoke a reliance-on-OLC defense, it would be a bit disconcerting, to say the least, to be confronted with a recent decision of a Justice McConnell stressing that "reasonably competent public officials" should "know the law governing [their] conduct," and that discussion with counsel changes the equation only if the defendants can "point to something in his consultation with the [counsel] that prevented him from knowing the law."
  That's a possibility, but I don't think we know enough to tell. (And reasonably enough; it's hard to guess why someone you have never met did something he allegedly did.) Reading over the Lawrence opinion for the first time, though, I'm not sure which side is right. My instincts have me leaning towards Judge Hartz's dissent, but I'm not familiar enough with the cases -- especially the 10th Circuit precedents -- to read any sort of conclusion. However, Judge Hartz's dissent uses pretty strong language, and it could be that Kelley misread the (in)significance of the decision in light of the dissent. And of course this assumes that Greenberg's sources have it right; it's quite possible that they presented a misleading picture of why McConnell was ruled out.
Anderson (mail):
My instincts have me leaning towards Judge Hartz's dissent

Why? If the officer knows due process is required, and the city att'y says, "nah, you don't need due process," then can the officer really rely on the city attorney?

That would be SUCH a bad result. The att'y, presumably, will be immune; the officer is thus immune; and it now becomes possible to do whatever you want with impunity, if you can get a lousy enough attorney.

I wish Prof. Kerr would explain this one to us.

[OK Comments: Anderson, the reason is that qualified immunity law allows law enforcement to make reasonable mistakes of law, and I don't know exactly how much Due Process jurisprudence a reasonable sheriff is supposed to know. The question is, is a rural Wyoming sheriff who is not a lawyer supposed to know enough Con Law to know that the city ordinance is unconstitutional under Eldridge and its progeny? I have a good sense of how much Fourth Amendment law courts expect officers to know, as there are a lot of cases on that. But do we expect sheriffs to know the Due Process cases like Eldridge? If he talks to an attorney who doesn't raise these issues, is he supposed to bring the issues up on his own? Of the top of my head I can't think of a case that suggests that, and I can't imagine that most sheriffs know about those cases. So that's why my instincts point towards Hartz's dissent, albeit obviously only tentatively. As for your policy argument, it is an interesting policy argument. But the issue here is qualified immunity law, not what is good or bad social policy. And your point about knowing the Due Process clause exists is just playing the level of generality game; the Court has been clear that the inquiry is specific, how law applied to a particular set of facts.]
2.13.2007 4:16pm
Deoxy (mail):
"The att'y, presumably, will be immune; the officer is thus immune; and it now becomes possible to do whatever you want with impunity, if you can get a lousy enough attorney."

The flaw there is immunity for the attorney.

In our system of laws, it is literally impossible to know the entire law. NO ONE PERSON IN THE WORLD does.

Now, it is possible (though hard) for most people to know all or almost all of the laws that apply to them (as much of the law is fairly narrow), but it takes normous effort; in fact, we ASSUME people don't actually know the law... many districts and many types of cases ARE NOT ALLOWED to be brought by anyone but a lawyer, and we go so far as to provide a lawyer for the accusd in criminal cases.

In such a system, the burden SHOULD be on the professional law knower - the lawyer. THAT IS HIS ENTIRE JOB. If he doesn't DO his job... why is HE immune? The officer mad a good faith effort to determine what was allowd - he consulted with the guy whose job is to know that stuff.
2.13.2007 4:45pm
wolfefan (mail):
Hi -

I don't have a link (sorry) and I haven't read the book yet, so Greenberg might might have already dealt with my opinion. I figured that Bush passed over McConnell because of McConnell's Slate columns arguing that Bush v. Gore was a horrible decision and wrongly decided.
2.13.2007 4:57pm
PatHMV (mail) (www):
Taking property without any due process at all, in the absence of an immediate threat to the public safety, is very clearly unconstitutional. I think the issue of who is more responsible for the bad action, the city or the sheriff, is one to be litigated between the two of them.

I don't know Wyoming law, but in Louisiana, a local city and the parish (county) sheriff are separate legal entities, with very separate budgets and lines of legal authority. This looks to me like a case where the Sheriff was not properly looking after his own legal authority and interests, but foolishly relying on advice from a lawyer with no legal duty to the sheriff. The sheriff should have sought advice from his own counsel, who would be looking at the issue precisely to avoid this problem.

Had the sheriff relied on his own counsel, I might be more sympathetic to him. Instead, he relied on counsel for the people who drafted the unconstitutional ordinance to begin with. Relying on the advice of the lawyer for the city which passed the ordinance is no different from simply relying on the ordinance itself.

That said on the smaller case, I'm not sure how it might apply to the larger case of the Administration and treatment of terrorists, etc. For the lower officials, I'd rely on the "just taking orders" defense (troublesome as it may be). They weren't making independent legal judgments and didn't seek advice of even departmental counsel, because they had been told by their superiors that the order was lawful, and given the facts available to them at the time, they had no reason to believe otherwise.

For the people giving the orders, then we'd have to look at whose lawyer they were relying on. On the one hand, the executive branch of the federal government is one entity under the Constitution. All executive power stems from the President, and nowhere else. In a certain sense, then, White House counsel are lawyers with a duty to the entire executive branch, and thus the entire executive branch ought to be able to legitimately rely on their advice. On the other hand, the practical reality is much more complex, and White House counsel really represent the President and his immediate office, not each separate department.
2.13.2007 5:03pm
Dave N (mail):
Wolfefan:

Having read the book (an excellent read by the way--I heartily endorse it), Judge McConnell's mention as a possible Supreme Court pick is confined to the quoted language and little else.

It was part of a larger section on why certain judges were not considered.

Greenberg's book takes the position that being chosen for the Supreme Court is like having lightening strike. One of her interesting thesis is that lightning actually struck twice for John Roberts--one in being selected for Justice O'Connor's seat and second to be tapped for Chief Justice since Greenberg makes the argumentt that Chief Justice Roberts would not have been selected for Rehnquist's post had Rehnquist retired before O'Connor did.
2.13.2007 5:04pm
Alan Gura:
Suppose the Sheriff is also a taxpayer. And he consults a crackpot lawyer who sells him a crackpot tax-advice or tax-shelter product that advises said Sheriff he need not pay his income taxes. Is the Sheriff liable for not filing taxes, in reliance upon the lawyer's advice?

What if the same lawyer tells the same Sheriff that a warrant is not required to search a home (in the absence of exigent circumstances)? Qualified immunity? What if the same lawyer tells the same Sheriff that it's OK to pull over motorists, in the absence of probable cause, on the basis of skin color?

We can make up an endless array of examples where a law enforcement officer can obtain absurd legal advice. However, these law enforcement personnel are rightly presumed to have some actual knowledge of the law, as their sworn responsibility is to uphold it. After the all, people who are arrested are responsible for knowing the law too.
2.13.2007 5:36pm
Hattio (mail):
Deoxy,
I'm not sure if you are arguing that there isnt' immunity for the lawyer, or that there shouldn't be. In either case, I think you are wrong. First, if you are saying there isn't, there's no privity between the citizen and the City attorney. He does have privity between him and the Sherriff by virtue of giving legal advice (even if the county is a separate legal entity from the City as another commentator mentioned).
Second, if you are arguing that the citizen should be able to sue the attorney based on the attorney's bad advice to the Sherriff, how are you going to limit that cause of action? Attorneys generally carefully screen their potential clients, because they know that they are opening themselves to liability if they give poor advice. They also know what areas of the law that person finds more important. For example, a client may only care about the best deal in a criminal domestic violence case, and not care about the fact that they will have virtually no chance of gaining custody. Could the children then sue the attorney for giving that advice. If an attorney is liable to anyone who his poor advice harmed, you have essentially made it so lawyers will be even more cautious. More importantly, you've opened up the potential liability to anybody.
2.13.2007 5:36pm
Richard Riley (mail):
While of course it's possible McConnell was eliminated because of a single opinion he wrote as stated in the Greenberg book, I would guess, more realistically, that the Bush administration was mainly interested in getting its candidate confirmed without a borking. Thus it didn't have much interest in appointing a former law professor who had written provocative things for a living, and so was much more likely to provide ammo for Democrats disinclined to support the administration's nominees.

Same thing that just sank Amanda Marcotte, at a little more cerebral level.
2.13.2007 5:40pm
whit:
this is really a seperation of powers issue, among other things.

it is clearly absurd for a court to believe that a police officer (i am one myself) has a burden to determine the constitutionality of the laws he enforces. heck, the varying circuit courts, legal experts, etc. can't agree on what is and isn't constitutional.

When i have a question about a law/procedure of this nature, i have also relied on prosecuting attorneys.

think about this for a second. the executive branch is charged with enforcing the law, NOT making it (legislative) or adjudicating it (the courts).

i personally don't think many laws that i have to enforce are constitutional. but that's not MY decision.

this cop spoke to the frigging prosecuting attorney, who gave his imprimateur, and now he's civilly liable?

think for a second about the chaos that would ensue if individual cops went about selectively not enforcing the penal code based on THEIR interpretation of the constitution.
2.13.2007 6:11pm
whit:
this is really a seperation of powers issue, among other things.

it is clearly absurd for a court to believe that a police officer (i am one myself) has a burden to determine the constitutionality of the laws he enforces. heck, the varying circuit courts, legal experts, etc. can't agree on what is and isn't constitutional.

When i have a question about a law/procedure of this nature, i have also relied on prosecuting attorneys.

think about this for a second. the executive branch is charged with enforcing the law, NOT making it (legislative) or adjudicating it (the courts).

i personally don't think many laws that i have to enforce are constitutional. but that's not MY decision.

this cop spoke to the frigging prosecuting attorney, who gave his imprimateur, and now he's civilly liable?

think for a second about the chaos that would ensue if individual cops went about selectively not enforcing the penal code based on THEIR interpretation of the constitution.

all the theorizing aside about possible motives for rejection of this judge, the most obvious is that he made an incredibly boneheaded decision
2.13.2007 6:11pm
_:

since Greenberg makes the argumentt that Chief Justice Roberts would not have been selected for Rehnquist's post had Rehnquist retired before O'Connor did.


Please explain why Roberts wouldnt have been picked as Chief Justice if Rehnquist's spot was available before O'Connor's.
2.13.2007 6:23pm
Hattio (mail):
whit;
Would the situation you describe be more or less chaotic than officers pursuing clearly illegal and unconstitutional actions and hiding behind immunity. There has to be some standard for imposing liability on cops or there is no restraint on officers (a situation I think we are perilously close to now anyway). The standard is "clearly established law," and it's pretty clear that you can't take someone's legally owned property away just because you want to, just like you can't pull your gun out and shoot somebody just because you want to.
As far as your analysis of the situation, I think you've got it wrong. The cop did not speak to the prosecuting attorney (a criminal attorney) he spoke with the city attorney (a civil attorney employed not by the county, but by the entity which passed the unconstitutional law). Even if he had spoken with an attorney who was employed by the county, so what? This really is equivalent to a prosecuting attorney telling you that if you don't like the look of someone, go ahead and pull out your gun and blast them. Something you, and every cop I know, would realize is unconstitutional.
2.13.2007 6:51pm
whit:
cops don't have blanket immunity.

There already IS a standard for imposing liability on cops, and cops are sued every day. Sometimes successfully so.

Nobody is arguing that cops should have blanket immunity for any sort of unconstitutional action

that is entirely different from saying that GIVEN a law passed by the legislature, ***AND*** given the go ahead from the prosecutor, the cop clearly should have NO liability.

if it was city attorney, my bad. same difference imo.

the point is he was a LAWYER and employed to (among other things) advise the police. just like any prosecutor.

and again, he was CONFIRMING the constitutionality of a law. the law was already passed.

the analogy about "go ahead pull out your gun and blast them" is thus a ridiculous analogy

the facts of the case are this

1) legislature passed law
2) cop, prior to enforcing law, went to the city attorney, who said - yea, the law seems kosher
3) cop enforces law

now cop is liable.

that's absurd.

and again , IF cops should be making constitutional decisions on the penal code, then I guess I don't have to enforce about 1/2 the laws on the book. cause i think they are pretty unconstitutional :)
2.13.2007 7:52pm
SmokeVanThorn (mail):
Bear in mind that the issue is whether the sheriff is personally liable. The fact that he may have qualified immunity as an individual does not deprive the aggrieved citizen of her remedy against the government agency that employs him, which is in turn has the remedy of disciplining him for the conduct that exposed the employer to liability.
2.13.2007 8:19pm
Just an Observer:
There are really two propositions being floated here: 1) Jan Greenburg's reporting that Judge McConnell was blackballed because of his opinion in Lawrence v. Reed; 2) Marty Lederman's inference that the deeper reason was related to how that opinion might play in controversies about questionable legal opinions used to excuse executive misconduct in the Bush administration. (Orin notes that the latter proposition might depend on perception as much as pure legal reasoning.)

I don't have any problem surmising that President Bush's gaming of the law has affected his judicial and legal appointments. I have always thought that explains a lot about the cronyism of the Harriet Miers nomination, for example. Ditto the elevation of Alberto Gonzales. Both are longtime personal loyalists to their boss.

The effort to expand executive power -- and in furtherance of that goal to use the attorney general and OLC as if they were mafia consigliere instead of objective government lawyers -- has been a central thrust of this administration. I have little doubt that this thrust outranks judicial conservatism as a motivation for either Bush or Cheney.

So Marty's theory is plausible, if unproven.
2.13.2007 8:24pm
David M. Nieporent (www):
it is clearly absurd for a court to believe that a police officer (i am one myself) has a burden to determine the constitutionality of the laws he enforces. heck, the varying circuit courts, legal experts, etc. can't agree on what is and isn't constitutional.
Which is why the standard isn't "whether a court may one day decide it's unconstitutional," but rather whether it's already clearly unconstitutional. You don't have to "determine" anything; you just have to know what has already been determined.

think about this for a second. the executive branch is charged with enforcing the law, NOT making it (legislative) or adjudicating it (the courts).
Right, enforcing the law. And an unconstitutional law isn't a law.

think for a second about the chaos that would ensue if individual cops went about selectively not enforcing the penal code based on THEIR interpretation of the constitution.
I'm trying to think of the downside here, but I'm having trouble.

But of course that's a strawman, because nobody is suggesting that you act (or not) based on your interpretation of the constitution. We're talking about clearly established law. If an attorney told you it was okay to arrest black people for sitting in the front of the bus, would you do it and defend your actions by saying, "But he told me I could"? I would hope not. You would know that, regardless of what some nitwit said, it's obviously unconstitutional to do so. And you would know that, regardless of what some nitwit said, you can't take someone's property without any due process.

You're already protected to a huge extent by qualified immunity; do you want complete immunity for everything you do?
2.13.2007 8:24pm
whit:
again, this is an analogy that is not on point (the sitting in the back of the bus example).

the issue was not that the city attorney approved of the cop's behavior beforehand, the issue is that the cop was acting PURSUANT TO A LAW

it had clearly NOT been "already been determined" as unconstitutional.

read above: "with the benefit of hindsight: the ordinance was clearly unconstitutional"

duh

the point is it had NOT been adjudicated as such WHEN the cop enforced it, it was a duly passed law, and the city attorney even signed on for the cop.

so, if you can respond to the actual facts, without making completely irrelevant analogies, that would be nice.
2.13.2007 8:36pm
SmokeVanThorn (mail):
The fact that Nieropont has to go to such extremes to posit what he considers analogous situations suggests that the whether the situation facing the sheriff - enforcing a statute that allowed him to remove vehicles, something that law enforcement does every day - was far from a clear cut example of unconstitutional beahvior that would justify denying qualified immunity.

And if appointing "loyalists" is enough to make plausible the accusation that a president is "gaming" and seeking to "expand executive power," no president is immune form such a charge.
2.13.2007 9:00pm
Just an Observer:
And if appointing "loyalists" is enough to make plausible the accusation that a president is "gaming" and seeking to "expand executive power," no president is immune form such a charge.

I did not say that first condition was sufficient to support the more general propositions. I do think it is consistent with the record of this administration on matters such as torture and warrantless surveillance, which is why the theory seems plausible. And if anyone does not believe Bush and Cheney are seeking to expand executive power, I suggest that they have not been paying attention.
2.13.2007 9:16pm
SmokeVanThorn (mail):
Then your position amounts to no more than "There is no proof but I find it plausible and if you don't agree you're not paying attention."
2.13.2007 10:50pm
Kazinski:
Lederman's analysis is clouded by his BDS, the fact that he is missing is that the sherriff was following the plain meaning of the statute. It wasn't a tortured reading of the law, even then he consulted an attorney with the responsibility for issuing such advisory opinions.

If McConnell had been elevated to SCOTUS Lederman would have said that it was because McConnell opinion endorsed excecutive nullification. McConnells opinion could be read as saying is that the Sherriff(executives) can pick and choose the laws they enforce, like FISA or vehicle removal laws based on their gut feeling of whether they are constitutional.
2.13.2007 11:23pm
Christopher Cooke (mail):
qualified immunity depends upon whether the sheriff had a good faith belief that his conduct was lawful. By consulting with the City attorney before he acted, I think it probable that the sheriff did have such a good faith belief. Again, like Professor Kerr, I have not researched 10th circuit precedent in this area, and am going from my memory of 9th circuit law when I was a law clerk in the US District Court. To me, the question would be whether the sheriff would be entitled to summary judgment or whether the issue would have to go to the jury (or trier of fact). My guess would be the latter.

As for Professor Lederman's explanation, it may very well be correct, but i wonder whether the bush administration's doj consciously or unconsciously would have applied such an analysis.
2.13.2007 11:24pm
Just an Observer:
SmokeVanThorn,

So you believe that Bush and Cheney have not been seeking to expand executive power?
2.13.2007 11:27pm
David M. Nieporent (www):
1. Kazinski: law enforcement "picks and chooses" which laws to enforce every day, just as prosecutors have discretion as to which cases to prosecute. (We're not talking about a situation where a politician commits a crime and they choose to look the other way -- prosecutors could do the same thing, but that doesn't hopelessly taint the concept of prosecutorial discretion.)

2. I don't know where SmokeVanThorn thinks police remove vehicles from private property without a court order or consent of the property owner "every day."

3. Whit: it's true that nobody had said "this particular statute is unconstitutional." But it's pretty clearly established that you can't take someone's property without due process. It's right there in the constitution. It's not like this is a close call or anything; nobody could rationally claim that there were exigent circumstances.

WADR to Orin, I don't understand the statement, "with the benefit of hindsight, it's clearly unconstitutional." If it's "clear," then it doesn't take hindsight. Contrariwise, if it's only unconstitutional in hindsight, then it was never clear.
2.14.2007 3:13am
volokh watcher (mail):
Orin:

By now, you may have stopped reading the comments.

I think McConnell is on the correct side of the issue in Lawrence for this reason. What's the difference between (i) a law-enforcement official relying on the advice of a city attorney about a patently invalid statute that authorizes an otherwise unconstitutional seizure, and (ii) a law-enforcement official relying on the advice of a city judge signing a patently invalid warrant that authorizes an otherwise unconstitutional seizure?

The answer? I don't think there's any difference at all. I think the case for (i) is weaker than the case for (ii). And (ii) is covered by Groh v. Ramirez.

Just a thought.
2.14.2007 6:08am
Simon (391563) (mail) (www):
From Orin's response:

As for your policy argument, it is an interesting policy argument. But the issue here is qualified immunity law, not what is good or bad social policy.

I'm trying to figure out why our author thinks these are different things. Qualified immunity law is almost wholly judge-made and not anchored in the Constitution or statute. Supreme Court and circuit decisions are chock full of policy arguments (usually about why the law must be tailored to give maximum protection to the police, but othertimes about balancing the various interests at play).

I'm also curious whether Orin would accept, as his response implies, a sliding scale in these sorts of cases: advice of city attorney triggers qualified immunity in 5th Amendment cases, but not 4th Amendment cases? Some kind of super-precedents, perhaps? And while that regieme would be somewhat plausible, one wonders what justification Orin might offer for it. Policy arguments?

(And for those tempted to take the dissent the entire way: do we really think that it is reasonable for a police officer to rely on advice from a city attorney if that advice is "you no longer have to give Miranda rights"?)
2.14.2007 7:43am
Anderson (mail):
Thanks for the reply, Prof. Kerr.

The bare bones of due process are "notice, and an opportunity to be heard." The ordinance clearly provided only the former.

I don't think it's asking too much for officers who enforce the law to know the bare-bones version of it, but obviously, reasonable folks can differ on the subject.
2.14.2007 9:29am
Justin (mail):
I know this is Orin Kerr's specialty and nowhere near mine, but I feel like he overstates the effect of qualified immunity. What qualified immunity is supposed to do is to prevent officers of the state from having to predict how courts *may* determine *new facts*, to keep the government from being liable to a new interpretation or ruling, and thus too cautious to work within the full limits of what is allowed under the Constitution. See Saucier v. Katz, 533 U.S. 194, 202 (2001) (stating that summary judgment on qualified immunity is appropriate "[i]f the law did not put the officer on notice that his conduct would be clearly unlawful").
2.14.2007 10:31am
whit:
". Whit: it's true that nobody had said "this particular statute is unconstitutional." But it's pretty clearly established that you can't take someone's property without due process. It's right there in the constitution. It's not like this is a close call or anything; nobody could rationally claim that there were exigent circumstances. "

Rubbish. look, t he legislature PASSED the darn law.

it wasn't obvious to them, and that's their JOB - to make law

it wasn't obvious to the city attorney

but it should have been obvious to the executive branch member tasked with enforcing whatever stupid laws the legislature passes?

that is an unreasonable standard to put it mildly, and it is incredibly dangerous since it ratifies the belief that cops and law enforcement should selectively NOT enforce duly passed laws, based on their interpretation of the constitution.

i think Kelo is blatantly unconstitutional. does that mean that i not enforce it, during an eviction and/or take the side of the property owner?

again, it would promote chaos to have cops deciding on issues of constitutionality of DULY PASSED LAWS.

cops make constitutional judgments all the time about search and seizure, etc. but not decisions in direct contradiction to duly passed pieces of legilsation
2.14.2007 11:53am
Adeez (mail):
For what it's worth Whit: I'm a city lawyer and agree with you on this one. The extreme examples (like the lawyer saying it's OK to execute suspects on the spot) are unhelpful b/c this case was a much closer call. On these facts, the sheriff likely acted reasonably. But these cases are all fact-intensive, and that's why a reasonableness standard is preferable.

As for the larger issue of appointments, I gotta second Just an Observer.
2.14.2007 12:02pm
whit:
if (and i don;t accept this for a second), the cop is liable for enforcing a duly passed law, especially after consulting with the city attorney, then it would be reasonable for every legisator who VOTED to pass the darn law should be equally liable

of course i think both things are absurd, but i cannot see how the legislators who passed a supposedly clearly unconstitutional law aren't held to the this same standard.
2.14.2007 12:08pm
Tyrone Slothrop (mail) (www):

I don't know Wyoming law, but in Louisiana, a local city and the parish (county) sheriff are separate legal entities, with very separate budgets and lines of legal authority. This looks to me like a case where the Sheriff was not properly looking after his own legal authority and interests, but foolishly relying on advice from a lawyer with no legal duty to the sheriff. The sheriff should have sought advice from his own counsel, who would be looking at the issue precisely to avoid this problem.


If, from the sheriff's perspective, the problem is that he got lousy legal advice from the town attorney, the sheriff should have bargained with the town to indemnify him in the event that he acts in reliance on the town attorney's legal advice. It doesn't make sense to have a sheriff go consult his own personal lawyer as he executes his official duties, but nor does it make sense to insulate the sherrif from liability because another local official got the law wrong.
2.14.2007 12:12pm
markm (mail):
SmokeVanThorn almost mentioned the elephant in the room:

Bear in mind that the issue is whether the sheriff is personally liable. The fact that he may have qualified immunity as an individual does not deprive the aggrieved citizen of her remedy against the government agency that employs him, which is in turn has the remedy of disciplining him for the conduct that exposed the employer to liability.

The elephant is sovereign immunity, of course. This is one case where the "deep pockets" is also the entity clearly bearing the most responsibility - and that entity is the city. They passed an obviously unconstitutional law. They insisted on it being enforced. They hired an employee who gave absurdly bad legal advice. On plain common sense, the sheriff only made the last and least culpable of a chain of bad decisions.

Nobody would be going after the sheriff if the city could be held liable - although I hope that in the next election, he'd lose to someone who pointed out that his stupidity and lack of care for citizen's rights contributed to costing the taxpayers dearly.

And that city attorney ought to be disbarred and sued for everything, including the shirt on his back. He's proven that he does not know the basic laws of the land. But lawyers protect each other...
2.14.2007 12:16pm
whit:
tyrone, i think the primary issue here is that he was enforcing a law on the books.

it is pretty reasonable to assume that a law is constitutionally valid, unless evidence presents otherwise. a cop shouldn't have to check out every law against his own personal constitutional knowledge base to make that determination.

if he had consulted with the city attorney on a general matter, and gotten bad advice, i would admit he could still be liable.

but this was a law, which means the assumption is that it is constitutional

agree that the sheriff is the least culpable. the legislators and the attorney moreso
2.14.2007 12:39pm
Hattio (mail):
Whit,
unconstitutional laws are passed all the time. That's why we have separation of powers. It's not just that this law was unconstitutional, but that it was clearly so. As another example. Lets assume the city passes a law which says you can't display swastikas. This is clearly unconstitutional. The officer enforces it. Should he be liable or not?
2.14.2007 6:49pm
whit:
hattio. you are making my point.

the seperation of powers. it is the job of the JUDICIAL branch to determine if a law is unconstitutional - NOT the executive branch e.g. the sheriff

and again, if it was CLEARLY unconstitutional, then why did the legislature have no problem voting for it?
2.14.2007 7:50pm
Elias Batchelder (mail):
I don't think many of the above examples of unconstitutional behavior are fair (indiscriminate shooting by police, racist traffic stops etc.). A better example might be an ordinance making it unlawful to burn a flag. No shock value there. However, people still get arrested occasionally pursuant to flag desecration ordinances: even though it is clearly established law that such ordinances are unconstitutional.
More important than picking a relatively neutral example, however, is to see that many of the comments are looking at the qualified immunity question from the [skewed] perspective of pure deterrence. Why, they ask, should an officer be held liable if he did everything that one would expect a reasonable officer to do? In my example, for instance, it is not only conceivable but highly likely that a police officer might not appreciate the First Amendment, viewpoint-based discrimination theories which makes flag desecration statutes unconstitutional. Pulling out a pocket constitution wouldn't help matters, and I for one don't expect police to keep to closely abreast of developing First Amendment jurisprudence. Indeed, reasonable minds differ -- several Supreme Court justices have said that such statutes ARE constitutional. If the honest police officer were to ask an attorney and the attorney told him "go right ahead," it is highly unlikely that he would (or should) defy this advice and selectively enforce the law.
So why hold him personally liable? A better question to ask is why should the unlawfully arrested plaintiff suffer an injury without a remedy? Who should bear the costs of an official's clear violation of the constitution? As a matter of policy, one could argue that the police (or perhaps their insurance companies) are in a better position to shoulder the costs of such rights deprivations than innocent plaintiffs. While qualified immunity serves to protect police officers from being overwhelmed by lawsuits, this does not mean that it is meant to restrict claims against them to those which would further the purposes of deterrence. Indeed, many section 1983 suits against the police occur in emergency situations where officer's are simply not thinking clearly. Thus, the specter of liability may have limited effect in deterring misconduct.
2.15.2007 1:04am
David M. Nieporent (www):
Pulling out a pocket constitution wouldn't help matters, and I for one don't expect police to keep to closely abreast of developing First Amendment jurisprudence. Indeed, reasonable minds differ -- several Supreme Court justices have said that such statutes ARE constitutional.
Several have said that such statutes should be constitutional -- but I don't think you'd find any who would say that, at present, they ARE, given the two Supreme Court cases that explicitly held otherwise.

Let the victim recover against the officer. Let the officer recover against the lawyer who gave him the horrible advice. Then everyone is happy. (Well, the lawyer isn't, but he doesn't deserve to be.)
2.15.2007 1:20pm
Tim Fowler (www):
Re: "OK Comments: Anderson, the reason is that qualified immunity law allows law enforcement to make reasonable mistakes of law, and I don't know exactly how much Due Process jurisprudence a reasonable sheriff is supposed to know. The question is, is a rural Wyoming sheriff who is not a lawyer supposed to know enough Con Law to know that the city ordinance is unconstitutional under Eldridge and its progeny?"

That sound reasonable. OTOH why can't a similar idea be applied to reasonable mistakes or lack of knowledge about laws when the person committing them isn't acting as a government official? Instead you have "Ignorance of the law is no excuse". Now I understand why you have "Ignorance of the law is no excuse" as a legal principle (for one thing its to easy to claim ignorance), but it does seem to be something of a double standard.
2.15.2007 5:10pm
Kazinski:
While ignorance of the law is no excuse for the public, or law enforcement, in this case the Sherriff knew the law, he applied the law, but the law was unconstututional. In this case he was supposed to apply the constitution to the law, and know that takings without due process were unconstitutional, but that prior notification does not constitute due process. If we are going to start requiring this level of knowlegde to law enforcement, ie, that they need to know the law better than the city attorney, then we better start paying them better. In this case it was the sherriff held liable, but there is nothing in this case that suggests a rookie patrolman wouldn't also be held personally liable in the similar situation.
2.15.2007 7:13pm
arbitraryaardvark (mail) (www):
Leaving aside the questions about judicial appointments and qualified immunity, what I found interesting about the case was that it found unconstitutional a common government practice of taking vehicles from private property without a hearing. Where I live in Indianapolis this happens literally every day. There's a weekly auction by a subcontractor, of the vehicles that the city has stolen that week,and I've never heard of anybody getting a hearing.
Is there a reader of this blog who would be willing to review the ordinance and express an opinion as to whether it is constitutional?
I recognize that the further step of finding counsel and bringing suit is a different mattter, but I'd be interested to know more about whether the city is acting unconstitutionally in the manner in which it takes people's cars. I can be reached at gtbear at gmail - I don't have the ordinance handy but can get it.
- arbitrary aardvark
2.15.2007 7:16pm