Court Says Police Need to Make Time for “This Constitutional Bullshit”

It's gotta be in there somewhere

On the bright side, the officers in this case didn’t kill the guy’s dog.

They did go to the home of a depressed veteran with PTSD, declare a “barricade situation” for no reason, search his home without a warrant or consent after he surrendered, and then go back five hours later to ransack the place (again without a warrant). As Tim Cushing of Techdirt put it, “the police—faced with a possible suicide intervention—did what [some] police do best: turned a neighborhood into a war zone and an ‘intervention’ into a standoff where the police were the only willing participants,” and violated the Fourth Amendment in the course of hassling a guy who made the mistake of calling someone for help.

But again, they didn’t kill the guy’s dog, something that some cops apparently have no trouble doing, so credit where credit is due, I guess.

These facts are from Corrigan v. District of Columbia, in which the D.C. Circuit held the officers weren’t entitled to “qualified immunity” from Corrigan’s civil-rights lawsuit. The qualified-immunity doctrine, as you may recall, is designed to reduce “second-guessing” of officers who sometimes have to act in difficult and unclear situations: they’re immune from civil-rights lawsuits as long as their actions were “objectively reasonable” under law that was “clearly established” at the time.

I also have a “qualified immunity doctrine,” namely that qualified immunity is only funny if asserting it seems like total bullshit to me personally under the circumstances. See, e.g., “Police Shoot Photographer With Rubber Bullet, Just for Fun” (Nov. 7, 2011) (pointing out that you have a First Amendment right to take pictures of police in public, and so cannot constitutionally be shot for doing it); “Would the Last Civil Right in America Please Remember to Close the Door on Its Way Out?” (May 2, 2012) (suggesting it’s fairly clear that a government isn’t supposed to torture its citizens); “A Fun Quiz on Military-Style Police Tactics” (Oct. 14, 2014) (noting police have carried out military-style raids to, among other things, arrest Tibetan monks who overstayed their visas and to check whether barbers had valid licenses); “Defendants Settle With Student Arrested for Possessing Arabic Flashcards” (Feb. 3, 2015) (hopefully self-explanatory).

That was all during the Obama administration, by the way.

So here we have Matthew Corrigan, an Iraq war vet who tried to call a veterans’ crisis line in 2010 but inadvertently called the National Suicide Hotline. He was depressed and couldn’t sleep, but wasn’t suicidal, as he tried to explain to whoever answered. She asked him whether he was on drugs and whether he owned any guns, probably standard questions on a checklist. He said no and yes, respectively, and the mention of guns apparently freaked out the hotline volunteer, who he said kept telling him to “put the guns down.” “That’s crazy,” he told her, “I don’t have them out” (they were in a locked container), and told her “no” when she asked whether he might harm himself or others. Finally he got frustrated with her, hung up, and went to sleep. Still concerned, the volunteer called the police.

She apparently told them Corrigan was a suicide risk, despite his denial, and that he had admitted to owning guns and taking meds for depression—both true of millions of Americans. Upon arrival, the officers claimed they smelled natural gas. Apparently based only on this information, they escalated by declaring a “barricade situation.” This brought in the “Emergency Response Team.”

Meanwhile, Corrigan was asleep.

Over the next few hours, police contacted his ex-girlfriend, who told them he had “expertise in IEDs,” which lots of Americans unfortunately also do because of the Iraq war. But they also talked to his landlady, who said she knew him well, he was not a risk to anyone, and that he didn’t have any gas appliances in his apartment. Police also knew by then that Corrigan had no criminal record and wasn’t subject to any protective orders. Only at 3 am, four hours after they had arrived, did they even try to talk to him. But he didn’t answer.

Because he was asleep.

When he finally turned on his cell phone at 4 am, he found a “flood of voicemails” from police and negotiators, which is how he first learned he was in a “barricade situation” in an evacuated building surrounded by police. (Well, he did make the mistake of calling for help.) He promptly surrendered. He refused to consent to a search of his apartment, obviously understanding he had the right to refuse. But exercising rights makes some cops really mad. “I don’t have time to play this constitutional bullshit,” one said—although they had been there for at least five hours without even trying to get a warrant—and so they just broke in and did a “sweep” of the apartment.

This was supposedly to search for “any human threats that remained or victims,” although they had no reason to think they might find any such thing. They did find a dog, which, as noted, they did not kill, and good for them. But after the “sweep” was done, they went back and turned the place upside down: officers “cut open every zipped bag, dumped onto the floor the contents of every box and drawer, broke into locked boxes under the bed and in the closet, emptied shelves into piles in each room, and broke into locked boxes containing Corrigan’s three firearms.” Those weren’t registered, so the police had indeed discovered a crime! But their justification for this second search—that there might, possibly, maybe, be explosives inside because Corrigan had received “IED training” in Iraq—was ridiculous, and so the evidence they found was excluded.

Corrigan then sued. But even though he’d won the Fourth Amendment point, the immunity issue was whether the actions violated clearly established law or were just a reasonable mistake under the circumstances. Since I’ve already applied my qualified-immunity doctrine, you can guess what I think about that. The court agreed (not with me, with the analysis), but the panel split 2-1 on immunity (they all agreed re: the Fourth Amendment). The majority said the dissent’s view “strain[ed] credulity,” which is judicial politeness you may translate however you like.

Finally, I noticed that Corrigan was represented pro bono by a team of students at the College of William & Mary’s appellate clinic, so congratulations to them, and good work. Unfortunately, experience with this constitutional bullshit is likely to be really handy going forward.