By Logan Dwyer, ACLR Featured Blogger

          Tolan v. Cotton,[1] now on petition for writ of certiorari before the Supreme Court, is interesting for two reasons.[2] First, the district court that heard Tolan incorrectly found that the defendant police officer did not use excessive force in shooting a kneeling, unarmed 23-year-old on his own porch with his parents watching.[3]At the very least, reasonable minds can disagree as to whether excessive force was used, so the case should have gone to a jury instead of being dismissed on summary judgment. Second, examining the grounds upon which the petitioner in Tolan appeals, the Fifth Circuit’s analysis of the qualified immunity issue is flawed and should be immediately corrected by the Court.

          It is important to note Tolan’s placement in Fourth Amendment jurisprudence. New students of the Fourth Amendment might expect to find only criminal cases in their casebooks, since many of the well-known doctrines—Miranda[4]and Massiah,[5] for instance—arise only in a criminal context. One might also expect the exclusionary rule[6] and fruit of the poisonous tree doctrine[7]—which together prevent unconstitutionally obtained evidence from being used against a defendant at trial—to be the sum total of remedies available for Fourth Amendment violations. Some violations, however, most notably use of excessive force by police officers, do not always discover evidence to be excluded. In these cases the law develops though civil suits brought by plaintiffs under 42 U.S.C. §1983 for damages resulting of Fourth Amendment violations.

          Tolan is a paradigmatic example of such a § 1983 case. Petitioner Tolan and his cousin were returning home around two o’clock in the morning when Officer John Edwards began following their car.[8] Officer Edwards was keeping an eye out for stolen vehicles,[9] and suspected Tolan and his cousin might be connected to those thefts after they made a sharp turn.[10] Following the pair home, Officer Edwards entered the license plate into his car’s computer, which confirmed his suspicions.[11] He called for backup and then stopped Tolan and his cousin between their driveway and house.[12] Officer Edwards asked the pair to lie down on the ground; Tolan did not comply immediately but instead tried to explain to Officer Edwards that the car was his.[13]The lights and commotion woke up Tolan’s parents, who came out and told the boys to comply with Officer Edward’s demands, which the boys did.[14]

          As Tolan’s mother started talking to Officer Edwards, Officer Jeffrey Cotton arrived on the scene.[15]Officer Cotton confronted Tolan’s mother and, in an attempt to get the situation under tighter control, asked her to step aside.[16] When she continued talking, Officer Cotton pushed her up against the garage door.[17]Tolan heard this and, swearing, told Officer Cotton to leave his mother alone.[18] Officer Cotton turned toward Tolan and, seeing he was on his knees and slowly getting up, shot three times and hit Tolan in the chest once.[19] Though Tolan survived the shooting, the bullet collapsed his lung and is still buried in his liver.[20]

           In addition to being shot, it was later established that Officer Edwards incorrectly entered Tolan’s license plate into the computer.[21] The car was not stolen, nor was there any indication it had been.[22] Because charges against Tolan were never filed, the exclusionary rule does him no good. At the state level, Officer Cotton was indicted by a grand jury for aggravated assault, but the jury ultimately returned a verdict of not guilty.[23]Tolan’s last chance for relief was therefore a suit for damages under 42 U.S.C. § 1983.[24]

          In order to recover damages under § 1983, plaintiffs must first clear a significant hurdle: qualified immunity. Qualified immunity gives government officials a defense against personal liability and the costs of trial provided their actions were either (i) not violations of the Constitution or (ii) it was not clearly established that the official’s actions constituted a violation at the time.[25] Courts are free to address the two prongs of the analysis in any order.[26] The doctrine is an outgrowth of the sometimes unclear nature of the law, as, ideally, it protects officials who could not know better without sacrificing deterrent force for less forgivable violations.[27]

          Unfortunately, qualified immunity sometimes shields officials who really should have known their conduct was unlawful. This is exactly what happened when the district court incorrectly found no genuine dispute of material facts as to whether Officer Cotton used excessive force. The use of excessive force is considered an unreasonable seizure under the Fourth Amendment.[28] The test therefore examines whether a reasonable officer would have used a similar level of force, given the totality of the circumstances.[29] Because the reasonableness inquiry considers only the information available to the officers at the scene, Officer Edwards’ mistaken identification of the car does not enter into consideration.[30]

          Even putting Officer Edwards’ mistake aside, no reasonable officer would have shot Tolan as Officer Cotton did. The District Court correctly focuses upon some confusion at the scene: the Officers were outnumbered,[31] Tolan’s mother was pacing back and forth while exasperatedly explaining no crime had been committed,[32] and the area was not brightly illuminated.[33] Yet it is hard to see how Tolan’s parents were threatening in any way, as both actively told Tolan and his cousin to comply with Officer Edward’s commands.[34] While Tolan’s family was shocked at the Officer’s accusations, no one used any force against the officers or threatened to do so. Of course, Officer Cotton understandably thought Tolan was being aggressive when he yelled, “Get your [expletive] hands off my mom.”[35] But the question is whether a reasonable officer, faced with Officer Cotton’s unease, would have shot Tolan as he started to rise. If nothing else, Officer Edwards’ reasonable response—pointing his weapon at Tolan without shooting[36]—sharply contrasts with Officer Cotton’s extreme reaction.

          The police have the unenviable job of making split-second decisions with imperfect knowledge.[37]Occasionally, mistakes will be made and innocents will die because of police misunderstanding, and no remedy will be left to the survivors. But that is not the case here, as the above shows Officer Cotton’s acted unreasonably in shooting Tolan as he was rising. Therefore the District Court incorrectly dismissed Tolan’s suit.

          The Fifth Circuit affirmed the District Court’s ruling on formally different grounds. Whereas the District Court focused on the violation prong of the qualified immunity analysis, the Fifth Circuit grounded its reasoning on the “clearly established” prong.[38] As the court noted, this is the more popular of the two prongs, since a decision about whether the law was clearly established at the time does not need to address whether a constitutional violation actually occurred.[39] The second prong gives courts an opportunity to shield officers from liability while avoiding constitutional questions.

          The Fifth Circuit’s mistake in affirming Tolan is, essentially, a conflation of the two prongs. At first, this may seem understandable; in the Fourth Amendment context, the qualified immunity analysis is muddled by two different kinds of reasonableness.[40] The first prong, looking for a violation, concerns the reasonableness of the officer’s actions under the Fourth Amendment. The second prong asks whether an officer could have reasonably misunderstood the law. Put another way, as Tolan notes in his petition, the first prong’s reasonableness is merits-based, the second prong is law-based.[41]

          The Fifth Circuit breaks with precedent, however, and divides the second prong in two.[42] The first subdivision asks the standard second prong question: were “the allegedly violated constitutional rights . . . clearly established at the time of the incident.”[43] The second subdivision considers “the objective unreasonable[ness]” of the conduct “in light of the clearly established law.”[44]

          The problem with this analysis is that “the objective unreasonabl[ness]” of the official’s conduct is precisely the first prong of the inquiry in cases of Fourth Amendment violations. This is a subtle point, but it has serious repercussions noted by Tolan in his petition for certiorari.

          The Supreme Court’s qualified immunity decisions represent a delicate balance that aims to compensate victims of constitutional violations without crippling the ability of public officials to perform their functions.[45]Considering the merits twice in cases like Tolan upsets this balance, giving officials “a second bite at the immunity apple.”[46] Making qualified immunity challenges harder for plaintiffs has two notable consequences. First, the Fifth Circuit’s approach reduces the number of cases that make it to the jury. The influence of juries, and therefore society’s collective judgment, upon the evolution of Fourth Amendment law is therefore reduced.[47] Such an approach increases the risk that the law governing excessive force, for example, will grow isolated from democratic consensus.

          The second consequence of the Fifth Circuit’s approach is the ossification of Fourth Amendment law. As noted above, holding an official qualifiedly immune under the second prong does not alter the substantive law, it merely means the law is unclear. When a decision is made on the first prong, by contrast, the court has decided the official’s actions were within the law, thereby clarifying what the law is. By disguising a decision on the merits in the language of the second prong, a court can hold an official’s action legitimate without actually saying as much. While this may not matter for the case at hand, it prevents the decision from advancing and clarifying Fourth Amendment law.

          As Tolan notes, substantial confusion exists among the Circuit Courts as to whether (and how) the second prong in qualified immunity should be divided.[48] Given the consequences of this seemingly abstract question, the Court should grant certiorari in Tolan and reestablish the independent nature of the two prongs. Should Tolan win, perhaps the Fifth Circuit will realize Tolan’s case poses a legitimate question about the appropriate use of force by police officers and send the case to a jury.