Over at Volokh Conspiracy, lawprof Orin Kerr posts about the 6th Circuit decision in McKenna v. Edgell, where the court affirms the lower court’s refusal to endow police officers qualified immunity.  Shocking, and Orin contends that the decision “reflects several critical errors and misunderstandings.”  It’s my pleasure to help Orin to understand.

The facts, as written up by Orin:

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 jury found:

[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.

Outrageous, right?  The question was whether the police were acting in their “medical response capacity” rather than their law enforcement capacity, since the former would have entitled them 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.”

This, Orin contends, is just plain wrong.

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.

This erroneous set-up, Orin says, leads to further complications:

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. 

There’s nothing terribly puzzling about any of this, but I can completely understand why it would appear so.  The problem stems from the reality that we function under a basic rule that is so widely ignored, so functionally meaningless, that when applied, it seems shocking and outrageous.   It’s not novel. It’s clear as can be.  It’s as well-established as possible.  A warrantless search and seizure is unlawful.

Obviously, the police perform functions other than law enforcement.  They save poor kittens stuck in trees.  They help pregnant women deliver babies, when they aren’t ticketing or beating them or their husbands.  They help motorists who have epileptic seizures on the road via taser therapy.  That sort of stuff. 

This is described as the medical response function, which I’m more inclined to characterize as the public safety function, as it extends beyond mere medical response to all the things an officer does to help people that doesn’t involve law enforcement.  There’s no question that, in the court of this function, the rules applicable to law enforcement are not in force.

But there’s often some confusion about characterizing the nature of police conduct.  There’s little doubt that the police entry into Scott McKenna’s home was lawful under the public safety function, as they were responding to a 911 call for a medical emergency, that McKenna was having a seizure or choking.  So far, cool.  The problem stems from their confusion as to proper medical protocol, first handcuff and search and then resuscitate.  Sequencing can be very tricky, apparently.

The facts were in dispute, with McKenna’s daughter, Alexandra, who called 911 for her father, explaining event thus:

The course of events after the officers entered McKenna’s bedroom is disputed. Alexandra testified that she “couldn’t see exactly what was going on” for some period, because she was talking to one of the officers. However, she also testified that this period was “for about a minute . . . . So I was standing there watching it all.” According to Alexandra, the officers instructed Scott McKenna to get out of bed and to get dressed. McKenna got up and started to pick up his pants, but then sat back down on the bed and began to lie back down. Alexandra testified that the officers then “picked him up by his hands, and they like pulled him up from the ground and told him to put his pants on.” McKenna then sat back down and, according to Alexandra, “was telling them to stop.” According to Alexandra, the officers continued to try to get McKenna out of bed while McKenna “just laid back down.” Finally, Alexandra testified, the officers handcuffed McKenna’s wrists and ankles, and only then did McKenna begin struggling with them.

The police version, not surprisingly, was different.

Contradicting the testimony offered by McKenna’s daughter, the officers said that after they found McKenna unresponsive to verbal questioning, Officer Edgell placed his hand on McKenna’s upper arm or shoulder to try to rouse him. Officer Edgell testified that when McKenna did rouse he immediately became aggressive and violent, pushing them and causing Officer Honsowetz to fall backwards. The officers asserted that it was necessary to handcuff McKenna because of his violent behavior.

Obviously, this hugely different version of events needs to be determined.  Who better than a jury?  The jury credited Alexandra’s testimony and rejected the police officers.  The fact that the officers also searched the house probably didn’t add much to their credibility, given their inability to make up with a good story to explain it.  It likely didn’t help either that Alexandra provided a clear, fact based recitation of what she observed, while the cops resorted to the typical, conclusory “aggressive and violent” mantra, apparently seeing no opportunity to slide furtive movements into the testimony.

Orin finds this problematic, in that it shouldn’t have been put to the jury whether the officers’ conduct was within their law enforcement or medical response capacity, since the proper inquiry for qualified immunity was whether their conduct was reasonable under the circumstances.    The Circuit held there was no special trick to the fact-finding and the jurors were singularly suited to the task. Orin, not so much.

Distinguishing between the law enforcement and medical response functions isn’t difficult.  Given that the jurors found Alexandra’s testimony credible, there is no reasonable view of the facts that could conceivably justify the officers’ conduct as being within the medical response function.  They entered as Florence Nightingale, but behaved like cops. 

Once the officers’ conduct found no justification under their medical response function, there was absolutely no view that provided any reasonable basis to conclude that it wasn’t a facial, flagrant, unlawful search and seizure.  If no finder of fact could find the conduct reasonable, then there’s no reason to put the question to the jury.  The court serves a gatekeeper function of putting only those questions to a jury that require a determination, and not those which are conclusive as a matter of law. 

But what appears to really befuddle is the idea that there shouldn’t be some complicated, prolix analysis of the officers handcuffing Scott McKenna, even though no crime was conceivably involved and there was no threat to officer safety, and then searching his home because, well, because they could.

It’s inconceivable these days that such conduct could be condemned by application of the rule, that police cannot engage in a warrantless search and seizure.  Our attention is so constantly focused on the exceptions, the excuses, the explanations, that the very notion of the dog wagging its tail is unthinkable.  Every analysis doesn’t have to be sophisticated, covering the myriad of exceptions.  Every analysis doesn’t require that we ultimately find (or at least try to find) an excuse to justify the police conduct.  Sometimes, their conduct is just totally, completely, absolutely, 110% unlawful, and there’s no exception, excuse, explanation that comes close to being worthy of discussion.

Imagine.  The 6th Circuit applying the black letter law.  No wonder its confusing.  When is the last time any court did that?