By Mark Joseph Stern
Andrew Scott and his girlfriend were playing video games in their Florida apartment late at night when they heard a loud banging at the front door. Scott, who was understandably disturbed, retrieved the handgun that he lawfully owned, then opened the door with the gun pointed safely down. Outside, he saw a shadowy figure holding a pistol. He began to retreat inside and close the door when the figure fired six shots without warning, three of which hit Scott, killing him. Scott hadn’t fired a single bullet or even lifted his firearm.
The figure outside was Deputy Richard Sylvester. He failed to identify himself as a law enforcement officer at any point. He had no warrant and no reason to suspect that Scott or his girlfriend had committed a crime. He did not attempt to engage with Scott at all after he opened the door; he simply shot him dead. And on Thursday, the U.S. Court of Appeals for the 11th Circuit held that Scott’s parents and girlfriend cannot sue Sylvester because the officer’s conduct was not “clearly” illegal.
The court’s reasoning? Qualified immunity, a constitutionally dubious doctrine that bars individuals from suing the government for violating their rights unless those rights were “clearly established.” And what, exactly, constitutes a “clearly established” right? It’s almost always possible to argue the point either way. Consider the events that led up to Scott’s killing. Sylvester had been pursuing a speeding motorcyclist who, he suspected, might be the same motorcyclist who’d recently committed armed assault and battery. (He had no legitimate reason to suspect this particular motorcyclist was the suspect in question.) Sylvester found a motorcycle at Scott’s apartment complex and decided it was the one he was looking for, even though a license plate search revealed no incriminating information. He and three other officers drew their guns and pounded on Scott’s door. When Scott opened it, Sylvester shot and killed him.
A district court granted Sylvester qualified immunity, holding that no “clearly established law” prohibited his actions. A panel of judges for the 11th Circuit affirmed. And on Thursday, the 11th Circuit, sitting en banc, declined to revisit the panel’s decision. In support of this refusal to rehear the case, Judge Frank M. Hull wrote that Sylvester’s behavior was a variation on “the knock and talk rule.” This rule allows officers to enter private property and knock on an individual’s door for “legitimate police purposes.” Hull reasoned that Sylvester had merely engaged in a form of “knock and talk” and that Scott could have simply declined to open his door. Shooting Scott once he did open the door, Hull wrote, did not violate any “clearly established … constitutional rights.”
In dissent, Judge Beverly Martin shattered this sophistry with painful precision. “Under no standard,” she wrote, “was it reasonable for the police to kill Mr. Scott when he answered the knock at the door to his home. He was not suspected of any crime (much less a violent crime) and he was standing inside his own house without threatening them.” The police, she explained “were not engaged in a permissible ‘knock and talk’ when they killed Mr. Scott.” In fact, “there was no talk here. This was a knock and shoot.” Sylvester had no warrant and no reasonable suspicion that Scott had committed a crime. Martin thus concluded that he clearly violated Scott’s Fourth Amendment rights by conducting a warrantless raid and using excessive force.
The most fascinating part of Martin’s analysis centered around Sylvester’s insistence that the shooting was justified because Scott opened the door while holding a firearm. This “conclusion that deadly force was reasonable here,” Martin noted, “plainly infringes on the Second Amendment right to ‘keep and bear arms.’ ” Citing the Supreme Court’s decision in D.C. v. Heller, which affirmed an individual right to handgun ownership under the Second Amendment, Martin wrote:
If Mr. Scott was subject to being shot and killed, simply because (as the District Court put it) he made the “fateful decision” to answer a late-night disturbance at the door to his house, and did so while holding his firearm pointed safely at the ground, then the Second Amendment (and Heller) had little effect.That seems exactly right to me—and it raises an important point: The 11th Circuit has now effectively found an individual’s Fourth Amendment rights are diminished whenever he chooses to exercise his Second Amendment right to possess a firearm. Unfortunately, the 4th Circuit reached the same conclusion in a dreadful ruling handed down in January. The Supreme Court should step in soon to remedy the contradiction by clarifying that the exercise of one constitutional right cannot diminish the protection of another. This is an area where liberals and conservatives should be in agreement.
Qualified immunity has clearly become a significant problem in the lower courts. Just last week, another federal appeals court ruled that a homeless man had no right to sue the police officer who allowed his dog to maul him despite knowing the mauling victim was innocent. Its rationale? Qualified immunity. The lower courts are stretching the doctrine past its breaking point. Soon, victims of police violence will almost never be able to sue the officers who violate their constitutional rights. If that’s where we’re headed, why even pretend that we hold those rights in the first place?