No. 18-1173444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States____________________

I.B. AND JANE DOE, Petitioners,

v.

APRIL WOODARD, ET AL., Respondents.____________________

On Petition for a Writ of Certiorarito the United States Court of Appeals

for the Tenth Circuit____________________

Brief Amicus Curiae of Gun OwnersFoundation, Gun Owners of America, Inc.,

Public Advocate of the United States,Downsize DC Foundation, DownsizeDC.org,The Heller Foundation, Conservative Legal

Defense and Education Fund, FitzgeraldGriffin Foundation, and Restoring Liberty

Action Committee in Support of Petitioners____________________

JOSEPH W. MILLER WILLIAM J. OLSON*RESTORING LIBERTY JEREMIAH L. MORGAN

ACTION COMMITTEE HERBERT W. TITUS

P.O. Box 83440 ROBERT J. OLSON

Fairbanks, AK 99708 WILLIAM J. OLSON, P.C.Attorney for Amicus Curiae 370 Maple Ave. W., Ste. 4

RLAC Vienna, VA 22180 (703) 356-5070

wjo@mindspring.comAttorneys for Amici Curiae

*Counsel of Record April 10, 2019444444444444444444444444444444444444444444

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. THE QUALIFIED IMMUNITY DOCTRINE ISDEEPLY FLAWED . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. The Tenth Circuit’s Application of theQualified Immunity Doctrine Barred aCongressionally Created Civil Remedy forTwo Americans Whose Rights WereViolated Egregiously by State Officials. . . . 7

B. The Qualified Immunity DoctrineAssumes that the People’s ConstitutionWas Insufficient to “Clearly Establish”Constraints on Government Officialsunless and until Courts Sanctioned thoseRules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. The Qualified Immunity Doctrine IsIrrational Because It Randomly ProtectsOnly those Rights Previously Recognizedby “Established Legal Authority” . . . . . . . 12

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D. The Qualified Immunity DoctrineImpedes the Development of FourthAmendment Case Law . . . . . . . . . . . . . . . . 13

E. The Qualified Immunity Doctrine IsBased on a Flawed Assumption about theCommon Law . . . . . . . . . . . . . . . . . . . . . . . 14

F. The Qualified Immunity DoctrineIncentivizes State Actors to PerformUnconstitutional Searches and Seizureswhere They Do Not Believe that TheyCan Obtain Warrants. . . . . . . . . . . . . . . . . 16

G. The Qualified Immunity DoctrineCombined with the Special NeedsException to the Fourth AmendmentWarrant Requirement Creates Nothingbut Uncertainty . . . . . . . . . . . . . . . . . . . . . 18

II. THE QUALIFIED IMMUNITY DOCTRINEBETRAYS THE RULE OF LAW . . . . . . . . . . . . . . . 18

III. THE DOCTRINE OF QUALIFIED IMMUNITYPROVIDES A DISINCENTIVE FOR GOVERNMENTOFFICIALS TO RESPECT THE CONSTITUTIONALRIGHTS OF AMERICANS . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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TABLE OF AUTHORITIESPage

CONSTITUTIONAmendment IV . . . . . . . . . . . . . . . . . . . . . . . 3, passim

STATUTES42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . 3, passim

CASESDistrict of Columbia v. Wesby, 138 S.Ct. 577

(2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Entick v. Carrington, 19 Howell’s State Trials

(1765) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Harris v. Roderick, 126 F.3d 1189 (9th Cir.

1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24Kisela v. Hughes, 138 S. Ct. 1148

(2018) . . . . . . . . . . . . . . . . . . . . . . . . 21, 23, 24, 26Marbury v. Madison, 5 U.S. 137

(1803) . . . . . . . . . . . . . . . . . . . . . . . . 5, 18, 19, 22Northern Securities Co. v. United States, 193

U.S. 197 (1904). . . . . . . . . . . . . . . . . . . . . . . . . 10Pearson v. Callahan, 555 U.S. 223 (2009) . . . . . . 13Pierson v. Ray, 386 U.S. 547 (1967) . . . . . . . . 14, 15The Wilkes Cases, 19 Howell’s State Trials

(1763-68). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Zadeh v. Robinson, 902 F.3d 483 (2018) . . . . . 13, 14Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) . . . . . . . . 21

MISCELLANEOUSWilliam Baude, “Is Qualified Immunity

Unlawful?,” 106 CALIF. L. REV. 45 (2018) . 22, 24Evan Bernick, “It’s Time to Limit Qualified

Immunity, Georgetown Law (Sept. 17, 2018). 15

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William Blackstone, 3 Commentaries on theLaws of England . . . . . . . . . . . . . . . . . . . . . . . 19

C. Campbell, “Anne Arundel police say officers fatally shot armed man while serving protective order to remove guns,” The Baltimore Sun (Nov. 5, 2018) . . . . . . . . . . . . . 25

William J. Cuddihy, The Fourth Amendment:Origins and Original Meaning (Oxford Univ. Press: 2009) . . . . . . . . . . . . . . . . . . . 15, 16

Declaration and Resolves of the First Continental Congress, reprinted in Sourcesof Our Liberties (R. Perry & J. Cooper, eds., Rev. ed., ABA Found.: 1978) . . . . . . . . . . . . . . 20

Hans Linde, “Without ‘Due Process,’” 49 OR. L. REV. 125 (Feb. 1970) . . . . . . . . . . . . . . . . . 20, 21

John Lott & C. Moody, “Do Red Flag Laws SaveLives or Reduce Crime?” (Dec. 28, 2018) . . . . 25

Magna Carta, reprinted in Sourcesof Our Liberties . . . . . . . . . . . . . . . . . . . . . . 6, 21

INTEREST OF THE AMICI CURIAE1

Gun Owners Foundation, Downsize DCFoundation, The Heller Foundation, ConservativeLegal Defense and Education Fund, and FitzgeraldGriffin Foundation are nonprofit educational, legal,and religious organizations, exempt from federalincome tax under Internal Revenue Code (“IRC”)section 501(c)(3). Gun Owners of America, Inc., PublicAdvocate of the United States, and DownsizeDC.orgare nonprofit social welfare organizations, exemptfrom federal income tax under IRC section 501(c)(4). Restoring Liberty Action Committee is an educationalorganization.

Amici organizations were established, inter alia,for the purpose of participating in the public policyprocess, including conducting research, and informingand educating the public on the proper construction ofstate and federal constitutions, as well as statutesrelated to the rights of citizens, and questions relatedto human and civil rights secured by law.

STATEMENT OF THE CASE

Petitioners are a minor child (I.B.) and her mother(Jane Doe) who brought suit against an El Paso(Colorado) County Department of Human Services

1 It is hereby certified that counsel for the parties have consentedto the filing of this brief; that counsel of record for all partiesreceived notice of the intention to file this brief at least 10 daysprior to the filing of it; that no counsel for a party authored thisbrief in whole or in part; and that no person other than theseamici curiae, their members, or their counsel made a monetarycontribution to its preparation or submission.

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(“DHS”) caseworker, April Woodard, for a warrantlessand egregious violation of the then four-year-old girl’sbody. That violation included taking the girl from herHead Start class at a public (government) school inColorado Springs, undressing the girl against her will(and without her mother’s consent), visually examiningthe child’s body, and photographing her private areasusing a cell phone. See Doe v. Woodard, 912 F.3d1278, 1285-86 (10th Cir. 2019).

The offense was not the action of one misguidedindividual making a split second decision in the field. Rather, social worker Woodard was sent to thegovernment school to investigate a tip, and theninstructed by her DHS superior Christina Newbill toperform the strip search. Moreover, the undressingand photographing appear to have been routinelyperformed on minor children pursuant to whatdefendants described as an “‘unwritten, but well-established county-wide policy or custom’” which didnot require obtaining “‘parental consent or a courtorder.’” Id. at 1286.

The strip search performed was based solely on atip from an “anonymous source,” and carried out eventhough the Doe family had been the object ofpreviously fraudulent reports of child abuse. The sameDHS already had conducted “‘half a dozen’”investigations in the Does’ home, these tips weredeemed “‘false’” and “unfounded,” but apparently thisseries of unfounded investigations gave the DHS nopause in acting on the current anonymous accusation. Id.

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When social worker Woodard visited Ms. Doe athome the following day, she failed to inform Ms. Doethat she had stripped, inspected, and photographedher daughter. Ms. Doe, by contrast, cooperated fully. The case was closed, once more, “as unfounded.” Id.

Afterward, the minor child told her mother thatshe would refuse to see social worker Woodard againbecause “‘I don’t like it when she takes all my clothesoff.’” Id. When Ms. Doe confronted social workerWoodard about the strip search, social workerWoodard first lied, denying that it had occurred. Thereafter she admitted her actions, advising Ms. Doethat “a child abuse accusation and investigation takespriority over the mother’s parental rights.” Id.

Petitioners filed suit under 42 U.S.C. § 1983,alleging, inter alia, violation of the minor child’sFourth Amendment rights. The governmentaldefendants moved to dismiss based on, inter alia,qualified immunity, and the district court dismissedthe action on the basis of that doctrine. Id. at 1287. The Tenth Circuit affirmed. Id. at 1285.

SUMMARY OF ARGUMENT

A Republic with a written constitution that limitsgovernment powers and enumerates rights of thePeople must have effective methods to ensure thatgovernment officials abide by those limitations andrights. One line of defense is the character andcommon sense of the officials, who make a solemnpledge to abide by the constitution and laws of thenation as a condition of entering government service.

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However, the People need meaningful tools to checkthe lawless exercise of power of elected officials,appointed officials, and even low-level governmentbureaucrats, as in this case. The ability of Americansto bring a suit under 42 U.S.C. § 1983 is an effectiveway that Congress has provided to penalizegovernment officials who act lawlessly, disrespectingthe People. Unfortunately, over time, the federaljudiciary has undermined the effectiveness of thisstatutory remedy with its doctrine of qualifiedimmunity.

In this case, a bureaucrat did great harm to adefenseless four-year-old girl, robbing her of hernatural modesty by seizing her from her Head Startclass, forcibly removing her clothes to visually inspecther unclothed body, and compounding the offense bytaking photographs — all based on an anonymous tip. The effects of such trauma can last a lifetime, and nosocial worker, even if authorized by her superior, andeven if pursuant to a long-established policy, shouldhave such a power. Moreover, the record reflects manyreasons why a judge would not have issued a warrantfor a bureaucrat to take these liberties with a littlegirl, which was just one of repeated indignitiesinflicted on Petitioner’s family in a vain effort by DHSemployees to find child abuse. Now that the socialworker has injured the child, the Tenth Circuit hasstepped in to retroactively validate the social worker’sactions by cloaking her with complete immunitybecause it was able to distinguish on the facts priorabuses of children, and could find no “clearlyestablished law.” Such a ruling not only deprives

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Petitioners of a remedy, it also places other children injeopardy of future victimizations.

This case demonstrates the deeply flawed,judicially created doctrine of qualified immunity. Thatdoctrine is built on a legal house of cards. Appliedhere, it assumes that the Fourth Amendment places nolimit on an assault unless a court has previously ruledthat it so applies. That dangerous doctrine can be seento actually place federal courts over the Constitution(and statutes) of the land. The doctrine allows aremedy for some Fourth Amendment violations, whileshielding others, based on the purely randomhappenstance as to whether a similar prior offense hadoccurred that was ruled on by this Court or therelevant Circuit Court. The doctrine is based on ademonstrably false belief that governmental workershad such immunity at common law, when it is knownthat officials involved in unlawful searches andseizures faced the risk of suit for trespass and falseimprisonment. The doctrine assumes that governmentworkers have perfect knowledge of thousands of courtdecisions, but could have no common senseunderstanding of the 24 words used by the Framers toidentify the protection provided by the FourthAmendment.

Ours is a government of laws, not of men. Soproclaimed the great Chief Justice John Marshall inhis acclaimed opinion in Marbury v. Madison. But, theChief Justice warned, the United States would ceaseto deserve this accolade “if the laws furnish no remedyfor the violation of a vested right.” Marshall’s opiniondid not begin with him in 1803, but is deeply rooted in

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the English common law, Sir William Blackstonehaving certified it in his Commentaries. As one ofthose sacred rights of Englishmen, the Englishcolonists of North America claimed the remedial rightas their own, tracing it back to Section 40 of the 1215Magna Carta promise: “No one will we sell, to no onewill we deny, or delay right or justice.”

How does the modern Supreme Court’s denial of aremedy to those injured by government officials whoenjoy immunity for “good faith” violations of Section1983 measure up? Not well at all according to thecritics both on and off this Court. What is the solutionfor this failure? These amici urge this Court toreconsider its qualified immunity doctrine and returnto the founding-era common law rule of strict liabilityfor violations of § 1983. Anything less would betraythe nation’s solemn claim that it remains agovernment of laws, not of men.

The qualified immunity doctrine thwarts anyremedy against not only Fourth Amendmentviolations, but also violations of other rightsguaranteed by the Constitution, including the SecondAmendment. Recently there has been a growth of “redflag laws,” which allow a person’s gun to be confiscatedby a simple, ex parte petition of someone else who mayor may not have that person’s best interests in mind. Red flag laws combined with the doctrine of qualifiedimmunity creates open season for law-abiding gunowners. These laws have already resulted in onedeath, with no measurable benefit.

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ARGUMENT

I. THE QUALIFIED IMMUNITY DOCTRINE ISDEEPLY FLAWED.

A. The Tenth Circuit’s Application of theQualified Immunity Doctrine Barred aCongressionally Created Civil Remedyfor Two Americans Whose Rights WereViolated Egregiously by State Officials.

The action below, for violation of FourthAmendment rights, was brought under § 1983, whichprovides:

Every person who, under color of any statute,ordinance, regulation, custom, or usage, of anyState or Territory or the District of Columbia,subjects, or causes to be subjected, any citizenof the United States or other person within thejurisdiction thereof to the deprivation of anyrights, privileges, or immunities securedby the Constitution and laws, shall beliable to the party injured in an action at law,suit in equity, or other proper proceeding forredress.... [42 U.S.C. § 1983 (emphasisadded).]

There is no qualified immunity provided for in § 1983or in any other federal statute, and it is purely ajudicially created doctrine which overrides an effort toobtain redress for the deprivation of a constitutional orstatutory right. Based on excerpts from earlier cases,

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the Tenth Circuit variously described the doctrine asfollows (citations omitted):

• “shields public officials from damages actionsunless their conduct was unreasonable in lightof clearly established law” (Doe at 1289);

• “[Q]ualified immunity ... protects ‘all but theplainly incompetent or those who knowinglyviolate the law,” (id.);

• “A constitutional right is clearly established if itis ‘sufficiently clear that every2 reasonableofficial would have understood that what he isdoing violates that right,’” (id.);

• “The plaintiff must show there is a ‘SupremeCourt or Tenth Circuit decision on point, or theclearly established weight of authority fromother courts must have found the law to be asthe plaintiff maintains,’” (id.);

• “‘existing precedent must have placed thestatutory or constitutional question beyonddebate’ for a right to be clearly established,”(id.);

• “There ‘need not be a case precisely on point’ ...[b]ut ... ‘clearly established law should not be

2 Note the use of the term “every” rather than “the average” or“the well-informed” state worker. This test establishes a virtuallyunreachable standard. It is difficult to believe that there is anylegal principle which is clearly known to “every” social worker.

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defined at a high level of generality... [but] ahigh degree of specificity,’” (id.); and

• “[T]he salient question ... is whether the state ofthe law ... gave [the defendants] fair warningthat their alleged treatment of [the plaintiffs]was unconstitutional” (id.).

Thus, the Tenth Circuit operated on itsunderstanding that the judicially created qualifiedimmunity doctrine granted state government agentstotal and complete immunity from a § 1983 actionbased on the deprivation of right when: neither theU.S. Supreme Court nor the Tenth Circuit hadpreviously decided a case which was factually nearlyidentical to the violation alleged (and there was notvirtual unanimity in identical cases arising in othercircuits), thereby demonstrating that there was no“clearly established law” which state officials wererequired to follow.

The Tenth Circuit does acknowledge a line of caseswhere there could be “the rare alleged violation ofminimal Fourth Amendment standards that is so‘obvious’ that a factually similar case is unnecessaryfor the clearly established law standard.” Doe at 1299. However, the Tenth Circuit concluded — remarkably— that “this argument fails” because “[t]his is not anobvious case where a body of relevant case law is notneeded.” Id. (citing District of Columbia v. Wesby, 138S.Ct. 577, 591 (2018)).

When the Tenth Circuit, believing that it wasfollowing this Court’s qualified immunity precedents,

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took the position that petitioner I.B. and her motherJane Doe had no right to bring an action under 42U.S.C. § 1983 because it was not “clearly establishedlaw,” these persons were rendered powerless to defendthemselves against lawless government actors. Suchdecisions lead to disrespect not just of the judiciary,but of the government, incrementally breaking thebonds that hold together the nation. It has long beenobserved that “hard cases make bad law.” JusticeOliver Wendell Holmes once opined that “[g]reat caseslike hard cases make bad law.” Northern SecuritiesCo. v. United States, 193 U.S. 197, 400 (1904). In thiscase, a hard case has revealed bad law, and hopefullya hard case will result in good law.

B. The Qualified Immunity DoctrineAssumes that the People’s ConstitutionWas Insufficient to “Clearly Establish”Constraints on Government Officialsunless and until Courts Sanctionedthose Rules.

What is truly amazing about the qualifiedimmunity doctrine as applied by the Tenth Circuit isthat it assumed that the U.S. Constitution is not“clearly established law” unless the courts say that itis.

The first part of the Fourth Amendment limits thepower of government by providing the assurance that:

The right of the people to be secure in theirpersons, houses, papers, and effects, against

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unreasonable searches and seizures, shall notbe violated....

This assertion of a right is clear, and stated in 24words. By the Amendment’s text, there is no questionthat the People have a protected property interest intheir “persons.” The word “unreasonable” should beunderstood in the context of the understanding of theFramers, and no evidence has been offered to showthat strip searches of four year olds by state officialswould have been tolerated by the Framers. But evenin a culture that has been looted of its modesty by ourruling elites, if “reasonableness” were viewed from thestandpoint of the people today, there is little doubtthat if the American people were polled on the issue asto whether their children could be strip searched,examined, and photographed on cell phones by stateemployees, acting without probable cause or judicialwarrant, that their disgust at this practice would beclear and unambiguous. Only to those who viewthemselves to be part of our ruling elite, whether socialworkers who act in derogation of God-given parentalrights “in the best interests of the child,” or judges,would such searches not be understood to be clearlyunreasonable.

As with all limitations on the power of governmentand all protections of the rights of the People, the issueraised by the Fourth Amendment is how the Peoplecan be assured of protection from unconstitutionalsearches and seizures by government officials. Statedanother way, how can the Constitution be enforcedwhen government agents treat the Constitution as amere “parchment barrier”? Certainly there could be

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possible remedies. The head of the Colorado DHScould be pressured to fire the offending worker orchange the established policy. When unconstitutionalsearches and seizures result in prosecution of anindividual, the exclusionary rule, when actuallyenforced, provides an individual a degree of protectionagainst government abuse. And there could bepolitical remedies, such as where the People vote outstate officials who violate their rights, such as bydefeating the Governor at the polls. But Congress sawfit to provide a civil action as a remedy which could beinvoked by one aggrieved American without the needto rally a majority of his neighbors to the cause. It isnot within the power of the Court to determine thatstatutes enacted by Congress are not “clearlyestablished law.” It certainly is not the role of thejudiciary to determine that the People’s Constitutionis not itself “clearly established law.”

C. The Qualified Immunity Doctrine IsIrrational Because It RandomlyProtects Only those Rights PreviouslyRecognized by “Established LegalAuthority.”

Whether or not Petitioners would be afforded aremedy for the wrong committed against them wasdependent on an extraneous event — whether theSupreme Court or the Tenth Circuit fortuitouslyhaving faced a virtually identical fact situation, whichwas judicially found to constitute an unconstitutionalsearch or seizure. In other words, whether a right isavailable would be determined by litigation to whichthe currently aggrieved parties were not participants

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and might not even have been aware. It allows astatutory remedy to be afforded in a State in oneCircuit, when the qualified immunity doctrine blocksthat remedy in an adjoining State. Although there arenumerous circumstances where circuits ruledifferently, until the issues are finally resolved by thisCourt, this type of disparate treatment is based onhappenstance, not principle. Whether relief can beobtained has a quality of chance and randomness thatshould not be permitted to continue.

D. The Qualified Immunity DoctrineImpedes the Development of FourthAmendment Case Law.

The Tenth Circuit cited Pearson v. Callahan, 555U.S. 223, 236 (2009) for the proposition that “A courtevaluating qualified immunity is free to ‘exercise [its]sound discretion in deciding which of the two prongs ofthe qualified immunity analysis should be addressedfirst in light of the circumstances in the particular caseat hand.’” Doe at 1289. Should the court initiallyconsider the second prong — whether “‘theconstitutional right was clearly established at the timeof the alleged violation’” — and rule against plaintiff,it would never reach the first prong — whether “‘aconstitutional violation occurred.’” Id. This allowscourts to avoid clearly establishing anything. As FifthCircuit Judge Don Willett noted in a concurringopinion:

[Courts] avoid scrutinizing the alleged offenseby skipping to the simpler second prong: nofactually analogous precedent. Forgoing a

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knotty constitutional inquiry makes for easiersledding. But the inexorable result is“constitutional stagnation” — fewer courtsestablishing law at all, much less clearly doingso. [Zadeh v. Robinson, 902 F.3d 483, 498-99(5th Cir. 2018) (Willett, J., concurringdubitante).]

This is exactly what happened below. The courtfirst addressed the “clearly established” issue, andtherefore skirted the need (and duty) to speak to theexistence of a constitutional violation. Thus, in thiscase, and many others similar to it, there would neverbe a controlling Tenth Circuit decision on the issue ofwhether a warrantless strip search and photographyof a young child by a social worker in fact violates theFourth Amendment. Rather, social workers in theTenth Circuit are signaled that they may proceed toinvade the natural modesty of these children based onanonymous tips, or even less of a rationale, as it suitsthem.

E. The Qualified Immunity Doctrine IsBased on a Flawed Assumption aboutthe Common Law.

In Pierson v. Ray, 386 U.S. 547 (1967), the Courtexplained the logic it followed to conclude thatqualified immunity existed at common law. First, theCourt stated that “[f]ew doctrines were more solidlyestablished at common law than the immunity ofjudges from liability for damages for acts committedwithin their judicial jurisdiction.” Id. at 553-54. Second, the Court stated that “[t]he legislative record

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gives no clear indication that Congress meant toabolish wholesale all common-law immunities” whenit enacted § 1983. Id. at 554. Then “the Courtextended qualified immunity to officials who conductedthemselves in good faith, without making any effort todetermine whether any officials enjoyed suchimmunity at common law.” Evan Bernick, “It’s Timeto Limit Qualified Immunity, Georgetown Law (Sept.17, 2018).

Indeed, the comprehensive history uncovered byWilliam J. Cuddihy in The Fourth Amendment: Origins and Original Meaning 602-179 (Oxford Univ.Press: 2009) demonstrates that those who perpetratedunlawful searches and seizures were not immunizedfor their wrongful actions, but instead were heldresponsible. He explained:

For centuries before the American Revolution,Englishmen had contested searches andseizures by characterizing them in court asinstances of trespass or false imprisonment. [Id. at 593.]

Additionally, Cuddihy explained that, after Entick v.Carrington, 19 Howell’s State Trials (1765), and TheWilkes Cases, 19 Howell’s State Trials (1763-68), therule that applied was the exact reverse of thedoctrine of qualified immunity:

Until those cases, searches and seizuresconstituted wrongs only when a statute orprecedent so declared and, even then, only theinstigators of those wrongs were culpable.

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After the Wilkes Cases, searches and seizureswere wrongs unless a statute or precedentdeclared otherwise, and agents as well asinstigators were culpable. [Cuddihy at 594(emphasis added).]

The qualified immunity doctrine should be re-examined in view of its flawed historical foundation.

F. The Qualified Immunity DoctrineIncentivizes State Actors to PerformUnconstitutional Searches and Seizureswhere They Do Not Believe that TheyCan Obtain Warrants.

This case provides an excellent illustration of afactual setting where it appears clear that noindependent judicial magistrate, if asked, would haveauthorized a warrant. The second component of theFourth Amendment provides:

and no Warrants shall issue, but uponprobable cause, supported by Oath oraffirmation, and particularly describing theplace to be searched, and the persons or thingsto be seized.

Based on the facts set out in the Tenth Circuit’sopinion, not only was there no probable cause thatcould be found, there was strong indication that theDoe family had been the object of a campaign ofharassment. The record does not make clear whetherthe harassment came from third parties who made

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anonymous tips or from the Department of HumanServices itself.

As set out in the Statement, supra, the strip searchwas performed based solely on a tip from an“anonymous source,” with no indication of thecredibility of that source. Moreover, there was novisible bruising that would indicate child abuse thatcould corroborate such an “anonymous source.” Second, the Doe family had been the object ofnumerous fraudulent reports of child abuse. The sameDHS that authorized and conducted the strip searchhad conducted “‘half a dozen’” investigations in the Doehome, and all of the tips that led to those numerousinvestigation ultimately were deemed “‘false’” and“unfounded.” See Doe at 1286. Although this series ofunfounded investigations gave the DHS no pause inacting on the current anonymous accusation, if theaffidavit seeking a warrant revealed that history, it ishighly doubtful a warrant would have issued.

Indeed, one of the reasons, if not the primaryreason, that a warrant would not be sought in asituation such as this, is the belief that it would bedenied. If the affidavit submitted accurately revealedthat the only possible justification was an anonymoustip, and the Doe family had been harassed on the samebasis before, there would be no “probable cause.” Inorder to obtain a warrant to do what the social workerApril Woodard did to this little girl, she would havebeen required to lie by omitting relevant facts orincluding false statements. Such fabrication inaffidavits would be unlikely to be caught or punished,but nonetheless, the qualified immunity doctrine

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allows state workers to skip the ethical problem ofsigning a misleading affidavit, aware that she will beprotected by the courts even if she knew that she wasconducting an unconstitutional search and seizure.

G. The Qualified Immunity DoctrineCombined with the Special NeedsException to the Fourth AmendmentWarrant Requirement Creates Nothingbut Uncertainty.

The Tenth Circuit concluded that the SupremeCourt had “not addressed the special needs doctrine inthe context of social workers’ inspection of childrenupon suspicion of child abuse” (id. at 1291-92) eventhough it rejected the special needs doctrine to justifya search in a different child abuse context involving ahospital’s testing of pregnant mothers. And, althoughthe Tenth Circuit had rejected “special needs”justification for removing a minor child from a homefor questioning about suspected abuse of another child,those cases were found to be too factually dissimilar. Lastly, other circuits have divided on the issue. See id.at 1292. Allowing reviewing courts the latitude todetermine how close the fact of a prior precedent needsto be to the current case introduces nothing butconfusion and uncertainty.

II. THE QUALIFIED IMMUNITY DOCTRINEBETRAYS THE RULE OF LAW.

“The government of the United States,” ChiefJustice John Marshall wrote in Marbury v. Madison,5 U.S. 137 (1803), “has been emphatically termed a

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government of laws, and not of men.” Id. at 163. Continuing, the Chief Justice no less emphaticallyobserved: “It will certainly cease to deserve this highappellation, if the laws furnish no remedy for theviolation of a vested right.” Id. Thus, he explained:

The very essence of civil liberty certainlyconsists in the right of every individual toclaim the protection of the laws, whenever hereceives an injury. One of the first duties ofgovernment is to afford that protection [asevidenced] [i]n Great Britain [when] the kinghimself is sued in the respectful form of apetition, and he never fails to comply with thejudgment of his court. [Id.]

In support of this proposition, the Chief Justicesummoned the wisdom of Sir William Blackstone who,in Volume 3 of his Commentaries on the Laws ofEngland, affirmed that “‘it is a general andindisputable rule, that where there is a legal right,there is also a legal remedy by suit or action at law,whenever that right is invaded.’” Id.

In further reliance on Blackstone, the Chief Justiceconcurred that, except for injuries that “fall within theexclusive cognizance of either the ecclesiastical,military, or maritime tribunals,” “all possible injurieswhatsoever [are] within the cognizance of the commonlaw courts of justice,” reiterating that “it is a settledand invariable principle in the laws of England, thatevery right, when withheld, must have a remedy, andevery injury its proper redress.” Id. As such, thisright was, therefore, vested in those Englishmen who

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were inhabitants of the English colonies of NorthAmerica before the founding of the United States ofAmerica. See Declaration and Resolves of the FirstContinental Congress, reprinted in Sources of OurLiberties at 286-87 (R. Perry & J. Cooper, eds., Rev.ed., ABA Found.: 1978).

To better preserve this common law right, severalstates included a separate “civil remedies” guaranteein their constitutions. See Hans Linde, “Without ‘DueProcess,’” 49 OR. L. REV. 125, 136-38 (Feb. 1970). Theclause came in a detail-laden form in Section 12 of the1776 Delaware Declaration of Rights which reads:

That every freeman for every injury done himin his goods, lands or person, by any otherperson, ought to have remedy by the course ofthe law of the land, and ought to have justiceand right for the injury done to him freelywithout sale, fully without any denial, andspeedily without delay, according to the law ofthe land. [Sources at 339.]

Not to be surpassed, both the 1780 Constitution ofMassachusetts and the 1784 Constitution of NewHampshire adopted an almost identical provision,Article XI of the Massachusetts document, reading:

Every subject of the commonwealth ought tofind a certain remedy, by having recourse tothe laws, for all injuries or wrongs which hemay receive in his person, property, orcharacter. He ought to obtain right and justicefreely, and without being obliged to purchase

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it; completely, and without denial; promptly,and without delay; conformably to the laws. [Sources at 376.]

Although sometimes confused with the more well-known right of “due process of law,” the right to a civilremedy to redress a civil wrong, has a differentpedigree — the due process right relates back to the“law of the land” Section 39 of the English MagnaCarta, while the right to a remedy relates back toSection 40 (“To no one will we sell, to no one will wedeny, or delay right or justice.”). See Linde at 138.

How does the court-developed immunity doctrine,as applied to § 1983 actions, measure up to theBlackstone/Marshall legacy of the rule of law? At theheart of the modern Court’s qualified immunitydoctrine is the claim that it is governed by the commonlaw of good faith as it existed in 1871 — the year inwhich section 1983 was enacted by Congress.” SeePetition at 26. However, Justice Thomas has notedthat the Court’s current “analysis is no longergrounded in th[at] common-law backdrop,” but hasbeen engaged in its own “freewheeling policy choices.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas,J., concurring). And, Justice Sotomayor recently hasmade known her displeasure with the “one-sidedapproach to qualified immunity [that] transforms thedoctrine into an absolute shield for law enforcementofficers, gutting the deterrent effect of the FourthAmendment.” Kisela v. Hughes, 138 S. Ct. 1148, 1162(2018) (Sotomayor, J., dissenting).

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The Petitioner is urging the Court to grant reviewnot only for herself, but for the future, urging thisCourt “to reconsider its qualified-immunityjurisprudence.” Pet. at 25. These amici join in thisendeavor, giving special attention to the nation’sfounding era and the nation’s covenant to build on therule of law, as understood by Chief Justice Marshall inMarbury v. Madison.

In a challenging article, Professor William Baudehas a section entitled, “Legality Instead of Good Faith”in which he gives an account of an 1804 opinion,rendered just one year after Marbury. William Baude,“Is Qualified Immunity Unlawful?,” 106 CALIF. L. REV.45 (2018). The question? Whether a naval Captainwho relied on the President’s instruction to capture aship could be excused from liability even though theseizure was unlawful. Baude at 55-56. Even thoughthe Chief Justice thought that the naval captain had“‘seized with pure intention’” “[n]onetheless, the Courtconcluded, ‘the instructions cannot change the natureof the transaction, or legalize an act which withoutthose instructions would have been a plain trespass.” Id. at 56. “In other words,” Professor Baudeconcluded, “good-faith reliance did not create a defenseto liability – what mattered was legality.” Id. For inBlackstone’s and Marshall’s day, a “‘strict rule ofpersonal official liability, even though its harshness toofficials was quite clear,’ was a fixture of the foundingera.” Id.

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III. THE DOCTRINE OF QUALIFIEDIMMUNITY PROVIDES A DISINCENTIVEFOR GOVERNMENT OFFICIALS TORESPECT THE CONSTITUTIONALRIGHTS OF AMERICANS.

Just last year, this Court summarily reversed aNinth Circuit ruling that a police officer was notentitled to qualified immunity when he shot a womanwho was holding a kitchen knife by her side. Kisela v.Hughes, 138 S.Ct. 1148 (2018). The officer hadclaimed that the woman he shot appeared to pose athreat to another woman standing nearby. Althoughthe analysis of the case was fact intensive, it did notprevent this Court from deviating from its rule that it“rarely grant[s certiorari] when the asserted errorconsists of erroneous factual findings or themisapplication of a properly stated rule of law.” Supreme Court Rule 10. The Kisela case illustratesthat Rule 10 is often honored in the breach by thisCourt when the case involves qualified immunity.

Additionally, demonstrating the peculiars of thequalified immunity doctrine, in Kisela, this Courtoverturned the Ninth Circuit’s reliance on its owndecision in Harris v. Roderick, 126 F.3d 1189 (9th Cir.1997), which constituted clearly established precedentthat the officer in Kisela was not justified in shootingthe woman with the knife. See Kisela at 1154. Harriswas the case brought against federal agents who wereinvolved in the infamous Ruby Ridge, Idaho shootingsthat took place in August 1992. In Harris, the NinthCircuit, to its credit, declined to grant qualifiedimmunity to the federal agents who used deadly force

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at the Weaver family cabin, despite their having clearinstructions from their superiors “that they ‘could andshould’ kill any adult male armed with a weapon inthe vicinity of the Weaver cabin, regardless of whetherhe was threatening the officers or any other persons.” Harris at 1202.

In Kisela, Justice Sotomayor dissented from thesummary reversal. She drew much-needed attentionto this Court’s qualified immunity jurisprudence,explaining that it “sends an alarming signal to lawenforcement officers and the public. It tells officersthat they can shoot first and think later, and it tellsthe public that palpably unreasonable conduct will gounpunished.” Kisela at 1162.

Yet, the trend seems to be in favor of expandinggrants of qualified immunity, as in Kisela, and notdenying it, as in Harris. Justice Sotomayor quotedProfessor William Baude’s article, “Is QualifiedImmunity Unlawful?”, supra, which concluded that“nearly all of the Supreme Court’s qualified immunitycases come out the same way — by finding immunityfor the officials.” Indeed, he reported that the only twocases where this Court has declined qualifiedimmunity were both well over 10 years ago. Baude at82.

Making the matter all the more urgent, some 13states have now enacted so-called “red flag laws,” lawswhich permit issuance of an ex parte judicial order onthe filing of a petition by law enforcement, familymembers, and in some states, teachers or schooladministrators. These laws authorize officials to seize

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weapons — by force if necessary — without thecommission of a crime or right to any type ofadversarial hearing. It does not take a crystal ball toconclude that red lag laws combined with the doctrineof qualified immunity will result in the shooting ofmany Americans who have committed no crimewhatsoever.

Red flag laws are being enacted under the promisethat they will decrease gun violence as well assuicides. Such concern for public safety, it is asserted,justifies any infringement of Second Amendmentrights. However, a recent study has shown that in thestates that have had red flag laws for at least a twoyears, there has been no significant effect on violentcrime or suicides. See John Lott & C. Moody, “Do RedFlag Laws Save Lives or Reduce Crime?” (Dec. 28,2018), https://ssrn.com/abstract=3316573.

On the other hand, these red flag laws do result inmore government violence against innocentAmericans. For example, in Anne Arundel County,Maryland, on November 5, 2018, at 5:17 a.m., countypolice arrived at a home to serve a red flag protectiveorder. After a pre-dawn struggle, at a time when raidscause confusion and danger reigns, the police shot andkilled the man being forced to disarm, Gary J. Willis.3 The ex parte protective order had been sought by justone family member, whose view of Mr. Willis was notshared by other family members, who described the

3 See C. Campbell, “Anne Arundel police say officers fatally shotarmed man while serving protective order to remove guns,” TheBaltimore Sun (Nov. 5, 2018).

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subject as “harmless.” Red flag laws will cause moreand more of these dangerous situations to arise. And,if police officers are granted broad immunity to killpersons who have done nothing wrong, solely toenforce red flag searches and seizures based on therequest of only one person, it will only incentivizepolice to, as Justice Sotomayor put it, “shoot first andthink later.” Kisela at 1162.

CONCLUSION

For the reasons stated above, the Petition for aWrit of Certiorari should be granted.

Respectfully submitted,

JOSEPH W. MILLER WILLIAM J. OLSON*RESTORING LIBERTY JEREMIAH L. MORGAN

ACTION COMMITTEE HERBERT W. TITUS

P.O. Box 83440 ROBERT J. OLSON

Fairbanks, AK 99708 WILLIAM J. OLSON, P.C.Attorney for Amicus Curiae 370 Maple Ave. W., Ste. 4

RLAC Vienna, VA 22180 (703) 356-5070

wjo@mindspring.comAttorneys for Amici Curiae

*Counsel of Record April 10, 2019