Thread by @profsteed

Ok, I promised I was going to tell a story about a case I've been working on. I said I'd wait a couple weeks but I can't wait. Buckle up. This is about the police and 4A violations. Full disclosure: I’m telling this story as an advocate for Mrs. W. 1/ #AppellateTwitter

One night around 2am, police get a 911 call about "trespassers." When they show up, they find out it's a 22yo woman in a nice suburban neighborhood, calling to complain about her 14yo brother's friends, who came over looking for him (and for a “grinder”) when he wasn't home. 2/

One of these 14yos lives next door, which is where the boys went when they left. The officers laugh with Mom, about Big Sister's attempt to get Little Brother and his friends in trouble. Then they offer to go next door and give the boys a "scare." 3/

RED FLAG: This is not a proper use of police authority. It is clearly unconstitutional for police to enter a person's private property at 2am, without a warrant, for the purpose of giving teenage boys a "scare." Nevertheless... 4/

The officers go next door and start pounding on the door at 2:15am. Eventually my client (Mrs. W) answers. The officers tell her to get her son, and she shuts the door. The officers say she "slammed" the door -- and they're convinced she's not coming back. So what do they do? 5/

NOTE: The officers are already violating the 4A by entering private property at 2am without a warrant, and now the homeowner has turned them away, which she has the right to do. Under King & Jardines, the officers *must* leave (and get a warrant if they want to return). 6/

Instead of leaving, the officers start pounding on the door again, trying to get Mrs. W to "come back." They call for backup. They search the curtilage of the home, shining flashlights into the sideyard and backyard. They sniff the air around the home for signs of marijuana. 7/

RED FLAG: All of this is flagrantly unconstitutional under Jardines. But the officers continue! 8/

When a third officer shows up, he starts pounding on the glass portion of the front door, so hard that the other officers are afraid he'll break the glass. Then the officers tell dispatch to call the residents' home phone -- twice! 9/

The teenage son picks up the phone, the second time it rings, and dispatch orders him to "go to the door." At the door, the officers order him and his friends to come outside. It's 44 degrees: the boys are barefoot, in shorts & tshirts. Mrs. W & her husband also come outside. 10/

The officers interrogate the boys outside in the cold for several minutes, frequently yelling at them. Understandably, Mrs. W isn't happy about all this and does some yelling of her own -- and the officers tell her to stand aside. 11/

Eventually the boys admit that they have marijuana upstairs, so the officers say they need to get it -- and one threatens to keep everyone out in the cold "forever," waiting for a warrant, if they don't agree to retrieve the marijuana. So Mrs. W tells her son to "go get it." 12/

One of the officers follows the boy into the house, and Mrs. W starts to follow too -- but the officers tell her she has to stay outside. She refuses -- she wants to go inside her own house(!) -- but when she reaches for the doorknob, an officer grabs her and takes her down. 13/

He takes her down hard, on the brick porch, pinning her for roughly 5 minutes -- threatening to tase her -- while she cries repeatedly "you're hurting me." 14/

Ultimately, they arrest Mrs. W for "interfering" with the search of the home. At hospital, she has cuts & bruises, bloody urine, and a herniated disk. Later, the charges are dropped. 15/

Mrs. W sues for 4A violations -- namely, unlawful arrest and excessive force. The officers (of course) move for summary judgment, asserting qualified immunity. And the judge (Reed O'Connor) grants immunity, saying officers could reasonably believe they had consent to search. 16/

Mrs. W appeals, arguing officers' 2am visit was unconstitutional from the start -- an unlawfully coercive "knock and talk" -- so there couldn't be valid consent to search the home. 17/

In response, officers don't contest the K-and-T characterization of their visit -- they contend their K-and-T was "reasonable" and that they could "reasonably" believe they had consent to search the home. 18/

Surprise! CA5 (King, Elrod, Graves) reverses! The panel says the false-arrest claim depends on the lawfulness of the search of the home, which in turn depends on the lawfulness of the K-and-T. And the panel suggests the K-and-T was unlawful if the alleged facts are true. 19/

So CA5 remands, instructing O'Connor to determine whether the 2am K-and-T was lawful, and thus whether the officers' subsequent actions were lawful. 20/

(Notably, CA5 also holds that the officers waived reliance on "exigent circumstances" as justification for their 2am visit because they didn't raise this defense until after oral argument.) 21/

On remand and at trial (knowing they cannot possibly prove their 2am K-and-T was lawful), the officers change their story, arguing their 2am visit was "not a K-and-T" but instead an "active investigation." 22/

RED FLAG: This is not a valid defense; it is essentially an *admission* that the officers violated the 4A by entering the property without a warrant for an "active investigation." But the officers tell the jury that "active investigation" JUSTIFIES their conduct! 23/

Mrs. W objects to this new argument repeatedly, saying CA5's mandate requires characterizing the visit as a K-and-T and determining whether the K-and-T was lawful. But judge allows the officers' new (invalid) argument. 24/

The jury is instructed on the law governing a K-and-T. But when they retire for deliberations, they quickly send a note asking what the law is for "active investigations." And instead of clarifying, judge tells them they have their instructions. 25/

So, in response to whether Mrs. W's 4A rights were violated, jury says "no." But from the record, it's clear that the jury thinks this was "not a K-and-T" but instead an "active investigation." So jury didn't apply law that governs K-and-T. In other words... 26/

...this is essentially jury nullification (disregard of the relevant law and facts). Mrs. W files motions for new trial and JMOL, saying CA5's mandate wasn't followed. But judge denies, saying jury could find officers had consent to search the home. 27/

RED FLAG: District judge's denial of postverdict motions essentially reiterates the SJ that CA5 had previously reversed -- focusing on consent to search home without squarely addressing the (un)lawfulness of the officers' pre-consent conduct. 28/

Mrs. W appeals again, arguing district court failed to comply with CA5's mandate, allowed/enabled jury nullification, and essentially reinstated same judgment that was previously reversed; officers' conduct should be deemed unconstitutional as matter of law. 29/

In response, officers change story (again), arguing K-and-T was "reasonable" (after disclaiming K-and-T defense at trial), and emphasizing deference to jury verdict. 30/

This time, CA5 (Dennis, Southwick, Wilson) affirms, deferring to the jury. The unpub'd opinion omits almost all the relevant facts about the officers' 2am conduct, and says the K-and-T issue "was not part of the mandate on remand" (!!). Jury could find consent, so game over. 31/

Mrs. W files petition for rehearing en banc, arguing second panel's opinion impermissibly overrules the prior panel's opinion and conflicts with SCOTUS precedent by blessing police conduct that is clearly unconstitutional under Jardines, etc. 32/

Second panel treats petition as petition for panel rehearing (not en banc) and issues new opinion -- this time laying out most of the relevant facts but nevertheless affirming judgment for the police. 33/

New opinion defers to jury, saying jury could find (i) 2am K-and-T was "reasonable" under "circumstances"; and (ii) even if conduct "crossed the line," jury could find valid consent to search home based on things like "mixed signals" and "changed atmosphere." 34/

BUT HERE'S THE THING: (i) SCOTUS and every circuit, including CA5, have unanimously agreed that nighttime K-and-Ts are unconstitutional -- and second panel can't point to "circumstances" because prior panel already held officers waived reliance on "exigent circumstances"; 35/

(ii) SCOTUS, CA5, and other circuits have agreed that consent can't be valid in wake of coercive 4A violation, without intervening circumstances; and... 36/

(iii) the officers DISCLAIMED their reliance on the K-and-T defense and NEVER ARGUED "mixed signals" or "changed atmosphere"; moreover, (iv) this is NOT a defer-to-the-jury situation -- constitutionality of officers' conduct is a legal question! 37/

We have a second petition for rehearing en banc that makes these arguments -- but holy smokes: why is CA5 bending over backwards to rule in favor of the police, raising arguments the police never raised and flouting SCOTUS precedent?!? 38/

By the way: QI is no longer at issue because officers waived it (by failing to reassert it in district court). This is probably why CA5 is bending over backwards to rule for police: because now they're actually on the hook for damages. 39/

Anyway, if pending petition gets denied, we'll be asking SCOTUS to reverse the rogue CA5. Beginning the recruitment of amici, starting now... 40/40

P.S. The easiest, most obvious result here is for CA5 to say (i) the district court erred by failing to grant JMOL; (ii) the officers' 2am K-and-T was unconstitutional as matter of law; (iii) no valid consent to search home, as matter of law, because...

...unlawful K-and-T was purposefully investigatory and coercive, and no "intervening circumstances"; (iv) so search of home was unlawful and subsequent arrest for "interfering" was also unlawful; and (v) Mrs. W can recover damages proximately caused by unlawful conduct.

(Or, without ruling on the merits, the court could just say the officers disclaimed reliance on the K-and-T exception so their warrantless entry onto the property can't be anything other than unconstitutional -- all arguments to the contrary waived.)

Oh btw — I forgot to mention that CA5 is trying to shield its decision from review by putting it in an unpublished opinion. We moved for publication because it’s the first decision of its kind (blessing 2am K-and-T). But CA5 swiftly denied that motion.

Bringing back this thread because, after having our (second) PFR for 5 months, CA5 just flatly denied the PFR with no request for response and no poll. Really need @OrinKerr to write a fire-hot amicus brief supporting cert in this one...