Appellate Law

Appellate Politics and qualified immunity: The 11th shows its stupidity in hiding its activism

By S. COTUS

A number of blogs are buzzing about Buckley v. Haddock, an unpublished decision from the Eleventh Circuit.  In this case, some cop handcuffed and tased the shit out of some guy on the side of the road.  The Eleventh splits in hilarious ways on an excessive force claim, and then tries to cover up its silliness by not publishing the opinion.  Obviously the plaintiffs was poor and probably didn?t know the first thing about going to law school and using OSCAR to become a clerk, and, besides, poor people need to be shocked. 

Now, if you don?t know how qualified immunity works, stop here. 

Anyway, Judge Edmondson writes the court?s opinion that says essentially not only was there no constitutional right violated, but the officer was entitled to qualified immunity.  Judge Edmondson tries to sound all scholarly, but his opinion can?t be taken too seriously.  So, whatever the case, the denial of summary judgment is reversed.

Judge Dubina writes a one paragraph opinion saying in essence, ?The Force was excessive, but the officer was entitled to qualified immunity.?  This is actually a bit more of a tenable conclusion, because, as a legal matter, qualified immunity isn?t even an issue unless you conclude that a constitutional right was violated.  In fact, this seems to indicate that Edmondson was being extremely judicially active in deciding an issue that didn?t even need to be decided.  After all, if there was no excessive qualified immunity isn?t an issue.  You don?t see juries in assault cases saying ?There was no assault, and it was self defense.? 

Judge Martin of the Northern District of Georgia, sitting by designation, says they are both full of it.  The force was excessive, and the officer knew damn well that he was violating someone?s constitutional rights.

Okay, what is the holding?

First of all, one can easily argue that there is no holding.  Even though the discussions are fairly extensive, and go on for 38 pages, someone will say, ?but it is unpublished.?

Second of all, there is a split in the majority as to whether it was excessive force or not.  Obviously Judge Edmondson  (or, more likely, his clerks) just like the idea of the cops assaulting people.  But Judge Dubina wants to give the cops a ?free bite? by saying ?now you know that shocking poor people three times when they are in handcuffs is excessive force? consider yourself on notice.  But, since Edmondson is writing the opinion, the cops will be told by other law school graduates to ?go ahead and shock people ? it just won?t violate the constitution.? 

So, who out-maneuvered who here?  Whose idea of the proper interaction between the cops (sworn to protect people like me) and the poor people carries the day?  Or, is the fact that it was unpublished, the final political blow that will leave the real issue of how much poor people should be shocked for another panel?

Full post as published by Appellate Law and Practice on September 13, 2008 (boomark / email).