When you “reason” only so as to reach a desired result, there is trouble down the line. You’ll wind up living with your reasoning, that this time produces the wrong result.
So Cole v. Carson has been kicking around for years now. Up to the SCOTUS, back to the 5th circuit, to a three judge panel, to an en banc rehearing, and now up to the SCOTUS again. Where it doesn’t seem to be getting much traction, this time.
We bring this up because there is mischief afoot. The prosecutor groups have filed an amicus brief (just look how many!), but they are not so much the problem as the Petitioner’s brief, and specifically the second question presented in that brief.
We can’t blame them for presenting that question. And the SCOTUS shouldn’t either. Here’s the question:
Does a police officer who inaccurately reports his perceptions of events during a dynamic shooting encounter violate clearly established rights under the Fourteenth Amendment?
Well, that’s not really what is being alleged. What’s being alleged is not that the police officer was “inaccurate”; rather, it’s that the police officer deliberately lied about the events in order to cover up the fact that his fellow officers unjustifiably fired on the Plaintiff, causing his catastrophic injuries. Partly causing them, anyway. Because the Plaintiff was apparently suicidal and also shot himself in the head.
But never mind.
The point is that under the 4th amendment the distinction we just made doesn’t matter. The officer’s intentions, his “scienter”, doesn’t matter under a 4th amendment analysis. It would matter under a 14th amendment-due process analysis.
So what’s going on here?
Well, the Petitioners don’t say a lot about it. There are basically two paragraphs in the petition about this. They’re loaded paragraphs, though:
Manuel, 137 S. Ct. at 920-21, establishes the claim
against Officer Carson must be assessed under the Fourth
Amendment. As far back as 1994, five Justices in two
opinions remitted to the Fourth Amendment such claims
that a person had been held on unfounded charges by
a policeman. Manuel, 137 S. Ct. at 918 (citing Albright
v. Oliver, 510 U.S. 266, 271-273 (1994). Probable cause
existed to arrest Cole for unlawfully carrying a weapon,
a crime Cole confessed to committing. (App. 141a). The
Fifth Circuit, therefore, appropriately dismissed the
Fourth Amendment claim against Officer Carson in light
of Devenpeck v. Alford, 543 U.S. 146, 153-154, 125 S. Ct.
Officer Carson could not have known in 2010, the
Fifth Circuit would years later enact a new, Fourteenth
Amendment cause of action exposing him to liability on
mere allegations he misstated the facts of a dynamic event.
(App. 146a, 173a). Manuel and Albright demonstrate the
claim against Officer Carson is not cognizable under the
Fourteenth Amendment, but, even if uncertainty exists,
as Fifth Circuit Judge Jones suggested comparing
Manuel with McDonough v. Smith, 139 S. Ct. 2149 (2019)
(App.29a), with such uncertainty even today, the right
involved is not beyond debate and is not “sufficiently clear
that every reasonable official would have understood what
he was doing violates that right.” See Stanton v. Sims, 134
S. Ct. 3, 7 (2013) (discussing that reviewing Judges could
not even agree on the issue).
Judge Jones’ footnote? We discussed that a little bit here, not that long ago.
Well, how about this argument that “five Justices in two opinions remitted to the Fourth Amendment such claims that a person had been held on unfounded charges by a policeman”, citing to Albright v. Oliver, one of the sources of all this incoherence?
The argument itself incorporates a faulty proposition and fails to cite the relevant case, which is Marks v. United States. The relevant inquiry is not simply the number of justices who agree upon a specific proposition in resolving a case by plurality opinion; rather it is whether that proposition disposes of the case on the narrowest grounds:
When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds…
But the argument is wrong for a reason even more fundamental. What was the result in Albright? SCOTUS ruled that he didn’t have a due process claim, not that he had a 4th amendment claim, which he refused to even argue. So that latter problem didn’t arise until 2017’s Manuel v. City of Joliet – 23 years later – where SCOTUS held that Manuel in fact had a 4th amendment claim. But as we noted at the time, and elsewhere since, Manuel refused to argue that he had a due process claim, exactly the reverse of Albright’s position.
So now we see the argument, in the latest SCOTUS iteration of Cole v. Carson, that we can’t sue a police officer who deliberately lies and cheats to bring about a criminal prosecution under the 4th amendment because his intentions are irrelevant so long as there is an objective basis to find his actions “reasonable”; and we can’t sue him under the due process clause either – because “qualified immunity” – because it’s not clear that that, in and of itself, is a violation of anyone’s due process rights.
What about Mooney v. Holohan and its progeny? The argument from here will have to be that those cases apply only where there has been a conviction. In 1994’s Albright, and in 2017’s Manuel, and in 2018’s McDonough there had been no convictions.
What’s wrong with that argument? A lot.
We can’t really improve upon Justice Stevens’ commentary in that regard:
In my opinion, the formal commencement of a criminal proceeding is quintessentially this type of state action. The initiation of a criminal prosecution, regardless of whether it prompts an arrest, immediately produces “a wrenching disruption of everyday life.” Every prosecution, like every arrest, “is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”
Of course Justice Stevens was writing in dissent.
We would like to see the nation’s police and prosecutors make their argument more forthrightly. Argue to the SCOTUS that lying and cheating by police and prosecutors do not matter if there is no conviction, that is.
In other words, defend official lying and cheating.
It’s the era of Trump, after all.