Dan Epps

It could apply to gross negligence though, right?

But that was also in the backdrop and I thought they didn't quite – Yeah, you've teed up the two other things I wanted to talk to you about. So first, the smaller thing is that question about who decides because at the argument, somebody said this is a legal question for the court, which I guess I had never really thought about.

But that was also in the backdrop and I thought they didn't quite – Yeah, you've teed up the two other things I wanted to talk to you about. So first, the smaller thing is that question about who decides because at the argument, somebody said this is a legal question for the court, which I guess I had never really thought about.

I sort of knew that these civil cases – I mean if you're lucky, they get to go to the jury. But – I guess it makes sense if Fourth Amendment reasonableness is a legal question, that is a question for the court. And so the jury is just going to decide the factual predicates and then the court combines that with its own judgment about whether those facts lead to a Fourth Amendment violation.

I sort of knew that these civil cases – I mean if you're lucky, they get to go to the jury. But – I guess it makes sense if Fourth Amendment reasonableness is a legal question, that is a question for the court. And so the jury is just going to decide the factual predicates and then the court combines that with its own judgment about whether those facts lead to a Fourth Amendment violation.

I bet we have some listeners at home who litigate these cases who might be able to help us with that. Yeah.

I bet we have some listeners at home who litigate these cases who might be able to help us with that. Yeah.

Yeah. So that feeds into my the other thing that you mentioned about qualified immunity. So if as the court tells us, this is kind of a, you know, object. This is this is kind of a fuzzy totality of the circumstances inquiry. Are officers going to always get qualified immunity? Like except in the most extreme cases where an officer, you know, shoots a fleeing shoplifter in the back 20 times.

Yeah. So that feeds into my the other thing that you mentioned about qualified immunity. So if as the court tells us, this is kind of a, you know, object. This is this is kind of a fuzzy totality of the circumstances inquiry. Are officers going to always get qualified immunity? Like except in the most extreme cases where an officer, you know, shoots a fleeing shoplifter in the back 20 times.

But in most other cases, if it's well, it depends on these 12 factors. Isn't that always going to produce qualified immunity where it's not going to be clearly established that the use of force was excessive?

But in most other cases, if it's well, it depends on these 12 factors. Isn't that always going to produce qualified immunity where it's not going to be clearly established that the use of force was excessive?

What do you think, Will? Is it a qualified immunity hawk? Dove? I'm not sure.

What do you think, Will? Is it a qualified immunity hawk? Dove? I'm not sure.

But it does – when you combine those things, good faith and qualified immunity, it does create this problem where the remedial structure makes it really hard for Fourth Amendment law to develop.

But it does – when you combine those things, good faith and qualified immunity, it does create this problem where the remedial structure makes it really hard for Fourth Amendment law to develop.

If there's always going to be a rule in whichever context, both in criminal context for exclusionary rule and civil context with qualified immunity, where courts can always just say we don't need to resolve it. I mean it does seem problematic to me.

If there's always going to be a rule in whichever context, both in criminal context for exclusionary rule and civil context with qualified immunity, where courts can always just say we don't need to resolve it. I mean it does seem problematic to me.

That was something I always found puzzling about Justice Scalia because he wrote some pretty impassioned Fourth Amendment opinions in terms of the substance. But then as far as I could tell, not clear to me he thought anyone should ever get a remedy for those violations. Yeah. OK. Anything more to say about that case?

That was something I always found puzzling about Justice Scalia because he wrote some pretty impassioned Fourth Amendment opinions in terms of the substance. But then as far as I could tell, not clear to me he thought anyone should ever get a remedy for those violations. Yeah. OK. Anything more to say about that case?

I came away thinking that there are some really hard fact patterns and I'm not actually sure what the right rule should be. I mean you can – paint hypos in different directions. So one, obviously, if a police officer just jumps in front of a car without any basis for doing so, holding a gun, the officer should not be allowed to just kill the person because, well, the car was about to run me over.