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Jay Schweikert



Articles by Jay Schweikert

Supreme Court May Be Preparing to Consider Several Major Cases on Qualified Immunity

4 days ago

For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of qualified immunity. This atextual, ahistorical doctrine — which shields public officials from liability, even when they break the law — was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the Justices themselves have already suggested. And now, with several major qualified immunity cases

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Addressing the Gross Injustice of Acquitted Conduct Sentencing

19 days ago

Under our Constitution, the jury trial is supposed to be the cornerstone of criminal adjudication. The independence of citizen jurors has always been understood to be an indispensable structural check on executive, legislative, and even judicial power. And that independence has always entailed a special solicitude for jury acquittals, which are intended to have unassailable finality. Yet prosecutors and judges routinely do end-runs around this intended finality — and thus, around the jury trial itself — through the pernicious practice of "acquitted conduct sentencing."
"Acquitted conduct sentencing" refers to the scenario in which a judge sentences a defendant not just upon the charge for which they were convicted, but also based upon alleged conduct underlying charges for which they

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Dissenters in Fifth Circuit Qualified Immunity Case Misunderstand the Relationship between “Originalism” and Section 1983

August 23, 2019

Yesterday I wrote about two recent en banc decisions from the Fifth and Eighth Circuits on the subject of qualified immunity, and how those cases fit into the rising tide of opposition to the doctrine generally. But I wanted to expand upon a point of disagreement between two of the dissents in Cole v. Hunter (the Fifth Circuit case), which may prove to be one of the central questions if and when the Supreme Court decides to reconsider the doctrine – namely, the relationship between qualified immunity, Section 1983, and originalism. I’ll note that both Josh Blackman and Damon Root have already written about this aspect of the Cole decision, but as someone who’s spent the better part of the last two years waging a campaign against qualified immunity I wanted to offer my take on the many

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Two Recent en banc Decisions Exemplify the Injustice, Impracticality, and Persistent Confusion Inherent to Qualified Immunity

August 22, 2019

In the last week, the Fifth and the Eighth Circuits, sitting en banc, have each issued major, fractured decisions on the subject of qualified immunity – the judge-made defense to civil rights claims under Section 1983, which shields state actors from liability for their misconduct, even when they break the law. In Cole v. Hunter, decided yesterday, the Fifth Circuit, in an 11-7 decision, affirmed the denial of summary judgment for two defendant police officers, who shot a teenage boy and then lied about what happened. The lawsuit brought by the victim and his family will therefore be able to go to trial, making this one of the rare instances where a civil rights plaintiff is able to overcome qualified immuniity. But in Kelsay v. Ernst, decided last week, the Eighth Circuit held, 8-4,

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Eleventh Circuit Grants Immunity to Officer Who Shot Child Lying on the Ground

July 15, 2019

The Eleventh Circuit’s decision in Corbitt v. Vickers, handed down last week, constitutes one of the most grotesque and indefensible applications of the qualified immunity I’ve ever seen. The case involves a claim of excessive force against Michael Vickers, a deputy sheriff in Coffee County, Georgia, who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. Without even deciding the constitutional question, a majority of the Eleventh Circuit panel granted qualified immunity to Vickers, simply because there was no case on point with this particular set of facts.
The key facts as alleged in the complaint are as follows: Vickers and other officers were pursuing a criminal suspect, Christopher Barnett, when Barnett

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Cato Files Brief Challenging Qualified Immunity for Warrantless Strip Search of 4-Year-Old

April 10, 2019

For over a year, Cato has been leading the charge to challenge the doctrine of qualified immunity: an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s, which shields government agents from liability for misconduct – even when they break the law. Today marks a huge milestone in that ongoing campaign, as Cato has just filed an amicus brief in support of a new cert petition calling on the Court to reconsider this doctrine. So has a diverse, cross-ideological alliance of over a dozen prominent public interest groups, as well a group of leading qualified immunity scholars. In the words of Wyatt Earp: “You called down the thunder. Well, now you’ve got it!”
The case at issue is I.B. and Doe v. Woodard. When I.B. was a four-year-old girl, she was strip searched and

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Defending a Court’s Discretion To Allow Arguments for Conscientious Acquittal

December 20, 2018

Throughout the entire Anglo-American legal tradition, the independence of citizen juries has been understood to be an indispensable structural check on executive and legislative power. This independence has traditionally implied that jurors would both understand the consequences of a conviction, and that they would possess the power of conscientious acquittal, or “jury nullification”—that is, the inherent prerogative to decline to convict a defendant, even if factual guilt is shown beyond a reasonable doubt, when convicting would work a manifest injustice. Nevertheless, modern courts generally do not protect a defendant’s right to make such arguments directly to a jury, nor even to inform a jury about the consequences of conviction. A fascinating case now pending before the Second

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Qualified immunity meets #MeToo: Prison official says sexual abuse didn’t violate “clearly established law”

July 24, 2018

When Katie Sherman was nineteen years old, she was incarcerated at Trumbull County jail in Ohio, for about five months. During that time, Charles E. Drennen worked as a corrections officer in the female pod of the jail where she was housed. Several female inmates had filed complaints that they’d been harassed and threatened by Drennen, who had a reputation for glaring at the inmates while they were sleeping, but Drennen began focusing on Ms. Sherman in particular. He often made highly sexual comments to her, and on at least four or five occasions, ordered her to expose herself to him, and to touch herself sexually in front of him and other inmates. Ms. Sherman – again, then a nineteen-year-old girl – complied because she was intimidated by Drennen. She eventually attempted to file a

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Leading Scholars and Most Diverse Amici Ever Assembled File Briefs Challenging Qualified Immunity

July 11, 2018

I’ve previously blogged about Allah v. Milling, a case in which a pretrial detainee was kept in extreme solitary confinement for nearly seven months, for no legitimate reason, and subsequently brought a civil-rights lawsuit against the prison officials responsible. Although every single judge in Mr. Allah’s case agreed that these defendants violated his constitutional rights, a split panel of the Second Circuit said they could not be held liable, all because there wasn’t any prior case addressing the “particular practice” used by this prison. Cato filed an amicus brief in support of Mr. Allah’s cert pertition, which explicitly asks the Supreme Court to reconsider qualified immunity—a judge-made doctrine, at odds with the text and history of Section 1983, which regularly allows public

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Openings in the Front in the Campaign Against Qualified Immunity

June 12, 2018

I’ve blogged several times now about Cato’s ongoing campaign to challenge the doctrine of qualified immunity. This judge-made doctrine – invented out of whole cloth, at odds with the text of Section 1983, and unsupported by the common-law history against which that statute was passed – shields public officials from liability for unlawful misconduct, unless the plaintiff can show that the misconduct violated “clearly established law.” This standard is incredibly difficult for civil rights plaintiffs to overcome, because courts generally require not just a clear legal rule, but a prior case on the books with functionally identical facts. Not only does this doctrine deny relief to victims whose rights have been violated, but at a structural level, it also erodes accountability for

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Challenging Qualified Immunity for Prison Officials Who Kept a Man in Solitary for No Reason

May 29, 2018

Our primary federal civil rights statute, colloquially called “Section 1983,” says that any state actor who violates someone’s constitutional rights may be sued in federal court. This remedy is crucial not just to secure relief for individuals whose rights are violated, but also to ensure accountability for government agents. Yet the Supreme Court has crippled the functioning of this statute through the judge-made doctrine of “qualified immunity.” This doctrine — at odds with both the text of the statute and the common law principles against which it was passed — immunizes public officials who commit illegal misconduct, unless they violated “clearly established law.” That standard is incredibly difficult for civil rights plaintiffs to overcome, because courts generally require not

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Victory for Defendant Autonomy and the Criminal Jury Trial in McCoy v. Louisiana

May 14, 2018

Robert McCoy was charged with the murder of three of his family members in Bossier City, Louisiana. The state brought capital charges against him, but McCoy maintained his innocence—claiming he was not even in the state at the time of the murders—and demanded a jury trial. But in light of the evidence against him, McCoy’s lawyer thought the best trial strategy would be to admit guilt to the jury and hope for leniency in sentencing. McCoy adamantly opposed this plan, but his lawyer pursued it anyway and told the jury that McCoy was guilty. The jury returned three murder convictions and sentenced McCoy to death.
Today, the Supreme Court held that it violated the Sixth Amendment for McCoy’s lawyer to admit his guilt over his express objection, and it ordered the state of Louisiana to

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The Pressing Need for Meaningful Prosecutorial Accountability

May 1, 2018

From 2004 to January 2013, Massachusetts state chemist Sonja Farak used drugs that she stole from or manufactured in an Amherst crime lab, causing thousands of people to be wrongfully convicted of drug crimes based on unreliable evidence. To make matters worse, prosecutors from the Massachusetts Attorney General’s Office (“AGO”), have engaged in persistent misconduct to cover up and minimize the scope of the scandal. Former Assistant AGs Kris Foster and Anne Kaczmarek committed “fraud on the court” by withholding exculpatory evidence, and misleading the superior court into finding — incorrectly — that Farak’s drug use began only in 2012, rather than all the way back in 2004. Moreover, the AGO itself consistently failed to investigate the scope of this misconduct, failed to correct

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Pretextual Stops and the General Warrant: Stopping the March of the Whren Doctrine

April 25, 2018

The specific language of the Fourth Amendment was largely a product of the colonists’ experience with the noxious institution of the general warrant. Historically, general warrants—and specifically, writs of assistance—gave law enforcement broad discretion to search wherever and whatever they deemed necessary, without the need to establish specific probable cause before a judicial officer. Such broad discretion enabled abusive, selective enforcement, and the colonists’ contempt for those arbitrary practices was a major cause for the Revolutionary War itself.
 
But 227 years after ratification of the Fourth Amendment, we are tragically approaching a stealth resurrection of the general warrant, in the form of pretextual stops. In Whren v. United States, 517 U.S. 806 (1996), the Supreme

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Justice Gorsuch on Overcriminalization and Arbitrary Prosecution

April 17, 2018

“Vague laws invite arbitrary power.”
That’s the opening line and general theme of Justice Neil Gorsuch’s concurring opinion in Sessions v. Dimaya, announced today. In this case, Justice Gorsuch joined the Court’s four “liberals” in a 5-4 decision holding unconstitutional a provision of the Immigration and Nationality Act, which renders deportable any alien convicted of an “aggravated felony.” This statutory phrase is defined to include a “crime of violence,” which itself is defined to include both crimes where use or threat of force is an element, as well as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” It was this last

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Michigan’s Attempt to Criminalize Speech in Support of Jury Independence

April 9, 2018

On November 24, 2015, Keith Wood stood on a public sidewalk in front of a courthouse in Big Rapids, Michigan, and distributed pamphlets published by the Fully Informed Jury Association (“FIJA”). These pamphlets discussed the history of the jury trial as an ancient and sacred safeguard of liberty, and the jury’s crucial role as the voice of the conscience of the community. It reminded jurors that they have the authority to engage in so-called “jury nullification“ — that is, to refuse to return a guilty verdict when doing so would be manifestly unjust, even if legal guilt was proven.
In other words, Mr. Wood was engaged in speech at the very core of the First Amendment’s aegis: classic political advocacy (peacefully distributing pamphlets) in the quintessential public forum (the

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Qualified Immunity: The Supreme Court’s Unlawful Assault on Civil Rights and Police Accountability

March 5, 2018

Our primary federal civil rights statute, colloquially called “Section 1983,” says that any state actor who violates someone’s constitutional rights may be sued in federal court. This remedy is crucial not just to secure relief for individuals whose rights are violated, but also to ensure accountability for government agents. Yet the Supreme Court has crippled the functioning of this statute through the judge-made doctrine of “qualified immunity.” This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit illegal misconduct unless they violated “clearly established law.” That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books

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The Structural Protections of the Double Jeopardy Clause

December 8, 2017

Michael Currier, like more and more defendants in recent years, was charged with multiple, overlapping offenses: (1) breaking and entering, (2) grand larceny, and (3) possession of a firearm as a convicted felon. This charging decision turned on an aggressive application of Virginia’s felon-in-possession statute, because the alleged firearm violation here was fleeting happenstance: Currier supposedly “handled” the victim’s firearms by moving them out of the way in order to commit the different offense of stealing money from a safe. If Currier had been tried on all these charges at once, the evidence needed to show he was a convicted felon would have been unduly prejudicial on the two primary counts (evidence of past, unrelated criminal behavior is generally inadmissible). The

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Protecting the Home from Warrantless Searches

November 21, 2017

“A man’s home is his castle”—this is not just an aphorism, but a longstanding legal principle. From Biblical times through to the English common law, the home was recognized as a place of refuge in which the owner is protected against uninvited private parties and unjustified government intrusion. That legal shield against arbitrary invasions of the home was embodied in the Fourth Amendment, which resulted in large measure from Americans’ reaction to the British authorities’ use of general warrants to search colonists’ homes without individualized suspicion. As a result of this history, “when it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). 
In Collins v. Virginia, the issue before the Supreme Court is whether a police

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Defendants, Not Their Attorneys, Should Decide Whether to Admit Guilt

November 20, 2017

Criminal defense is personal business. A criminal defendant may never face a more momentous occasion than his trial, nor one where his decisions have greater personal consequence. For this reason, the Constitution not only mandates rights for the accused but also secures a defendant’s autonomy in the exercise of those rights: “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Faretta v. California, 422 U.S. 806, 819 (1975).
Robert McCoy sought to exercise his autonomy on one of the most fundamental decisions a defendant can possibly make—whether to admit or deny his own guilt before a jury. On trial for his life, McCoy made an informed, intelligent, and timely decision to

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