The criminal defense lawyer's perspective from the Ninth Circuit on last year's Supreme Court term

Here is an excellent report on the last U.S. Supreme Court term, prepared by the public defenders in the Ninth Circuit.

The introduction says:

"In going through the opinions to look for hidden gems, three major themes emerge. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation. Lastly, the Court’s devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions."

The report says this about the latest qualified immunity case:

"Brosseau v. Haugen, 125 S. Ct. 596 (2004): Separate from the constitutionality of an officer’s use of deadly force against an unarmed felony suspect, the courts had not “clearly established” the right in question, in a particularized sense, to the facts presented to foreclose qualified immunity for the officer.

In another reversal of a Ninth Circuit civil rights case, the Court per curiam found an officer to be protected by qualified immunity. Officer Rochelle Brosseau went to the home of Kenneth Haugen, who was suspected of selling drugs and stealing the tools of a co-worker. When Haugen saw Officer Brosseau approach, he jumped in his Jeep, and ignored the officer’s warnings to stop, even when she smashed a hole in the window of his Jeep. Brosseau shot Haugen in the back as he drove away, and Haugen subsequently filed a suit for damages under 42 U.S.C. § 1983. The Court of Appeals held that Brosseau violated Haugen’s Fourth Amendment rights and also that she was not entitled to qualified immunity.

The Supreme Court reversed only on the qualified immunity question because the law of when an officer may shoot a fleeing suspect was not clearly established with the particularization necessary to apply it to this set of facts. The Court’s holding in Brosseau substantially extends qualified immunity by encompassing excessive force cases where the law has not been previously applied to particular facts. Here, even though past cases had clearly established that officers may only shoot a fleeing suspect who presents a risk to others, the Court held that in this case, “Brosseau’s actions fell in the ‘hazy border between excessive and acceptable force.’” (Quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). This case includes an echo of the Doctrine of Constitutional Avoidance. In footnote 3, the majority finds no reason to reconsider Saucier’s order of proceeding: 1) first decide
the constitutional question; 2) then decide the qualified immunity question. Justice Breyer, joined by Justices Ginsburg and Scalia, concurred to say that Saucier should be reconsidered because, if the question is iffy enough for qualified immunity, why reach the “difficult constitutional questions when there is available an easier basis for the decision”?"

Why indeed? Because if the difficult constitutional questions never get answered, then the defendants will keep winning every case on qualified immunity.

This report is chock full of good stuff and worth reading even if like me, you have nothing to do with federal criminal practice.