Channels, Fall 2017

Channels • 2017 • Volume 2 • Number 1 Page 71 The Legal Argument in Maney v. Garrison Naturally, these current concerns come into play in lower courts—the only courts that most litigants will ever see. Returning to the case discussed at the beginning illustrates how courts apply qualified immunity precedent—for better or for worse. The court here identified the legal question as: “[W]hether a police canine handler, whose dog suddenly and mistakenly bites a concealed bystander while tracking the scent of a robbery suspect, clearly violates the Fourth Amendment if he momentarily extends the seizure to assess the potential threat to officer safety.” 102 Stating also that the case and legal questions were too fact-bound to be of good use for precedent, they skipped the first Harlow prong (actual violation) and analyzed only the second (clearly established). 103 In its analysis, it relied mainly on Pearson , Harlow , and al-Kidd . The court did mention the need to balance officer accountability and protection from frivolous suits. 104 However, the court leaned much more heavily on al-Kidd , citing the “beyond debate” idea no less than five times. 105 The opinion also cites the “every reasonable officer” idea multiple times as though it is the implicitly obvious legal standard, but it never cites it as coming from al-Kidd . 106 The court also pulled in language from Malley through al-Kidd , stating, “Like the district court, I cannot say Appellee acted perfectly under the circumstances. But by the same token I cannot say his actions rose to the level of plain incompetence or knowing violations of the law.” 107 Further, adopting the particularity standard of al-Kidd and Mullinex , the court sets forth the familiar high bar for particularity. 108 Tying this framework in with the facts of the case and the pertinent cases, the court found that none of the cases cited by the Appellant (Maney) were close enough to the facts at hand to render the legal question “clearly established.” The factually closest case, Kopf v. Wing , was not considered close enough to Maney’s case because it, “only found that a jury may conclude that forcing a person to show his hands prior to calling off the police K-9 is 102 Maney v. Garrison at 3. 103 Ibid., 9. 104 Ibid., 9. 105 Ibid., 10 (“beyond debate”), 13 (“beyond debate”), 15 (“beyond constitutional debate”), 19 (“beyond debate”), 21 (“beyond question”). 106 Ibid., 15 (referencing appellant’s argument), 17 (“The question, then, is whether every reasonable officer would have known the second and third bites were clearly unreasonable”), 21 (“Under those circumstances, we cannot say that every reasonable officer would have known his conduct was, beyond question, a violation of the Fourth Amendment”), 23 (“common sense tells me that things may not be as clear to every cop on the beat as the dissent would suggest”), and footnote 7 (“The timing of the events in question is, however, relevant to the question we do answer: whether every reasonable officer in Appellee’s shoes would have known his conduct violated the Fourth Amendment”). 107 Ibid., 25. 108 Ibid., 9-10. (“We therefore proceed to the second question, keeping in mind that “a defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). In other words, while a case directly on point is not required, “existing precedent must have placed the . . . constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. “The dispositive question is whether the violative nature of particular conduct is clearly established.” Mullinex v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (emphasis in original) (internal quotation marks omitted).”