Oren Kerr

Everything is very rule-based. There's like a rule structure. And what makes excessive force cases different is that it's just They have these gram factors. It's reasonableness. And sometimes that leads to a rule like Tennessee versus Garner, the fleeing felon case where there's a little bit more of a rule. But otherwise, it's just a standard.

Everything is very rule-based. There's like a rule structure. And what makes excessive force cases different is that it's just They have these gram factors. It's reasonableness. And sometimes that leads to a rule like Tennessee versus Garner, the fleeing felon case where there's a little bit more of a rule. But otherwise, it's just a standard.

And so it's like they wanted to do more than just send it back and say, just do the gram factor standard. But they weren't sure what, if anything else to say. And it wasn't really the case to bring it in because they just ran a cert on this narrow question.

And so it's like they wanted to do more than just send it back and say, just do the gram factor standard. But they weren't sure what, if anything else to say. And it wasn't really the case to bring it in because they just ran a cert on this narrow question.

I thought it was hard because the lawyer from the SG's office was clear. He's like, well, you know, there's sort of two questions. Like what will the Fourth Amendment allow and then what is a good idea?

I thought it was hard because the lawyer from the SG's office was clear. He's like, well, you know, there's sort of two questions. Like what will the Fourth Amendment allow and then what is a good idea?

And obviously if the officer is going to put the officer's own life at risk, it's a really bad idea to take a step even if you can come up with a doctrine that says this is constitutional to do this. It's dumb. So it's a bad idea. So – This wasn't really the case in which to get into those questions, I thought, even though a bunch of them obviously were interested in that.

And obviously if the officer is going to put the officer's own life at risk, it's a really bad idea to take a step even if you can come up with a doctrine that says this is constitutional to do this. It's dumb. So it's a bad idea. So – This wasn't really the case in which to get into those questions, I thought, even though a bunch of them obviously were interested in that.

Excessive force cases are a little bit grafted onto Fourth Amendment law. It's one of those things that you can see how it ultimately can be deemed, you know, the idea is that the use of force is a seizure in that, you know, especially in Tennessee versus Garner, which starts this, the shooting and killing somebody obviously is seizing them in that sense.

Excessive force cases are a little bit grafted onto Fourth Amendment law. It's one of those things that you can see how it ultimately can be deemed, you know, the idea is that the use of force is a seizure in that, you know, especially in Tennessee versus Garner, which starts this, the shooting and killing somebody obviously is seizing them in that sense.

But I think a little bit, it's like a constitutional tort that seems to fit and that makes a lot of policy sense that kind of gets squeezed into the doctrine. So it's a little bit uncomfortable in that they don't quite know, like, how do you take what ultimately you'd think of is a jury question of the excessiveness of the force and put it into a rule structure, which has primarily been

But I think a little bit, it's like a constitutional tort that seems to fit and that makes a lot of policy sense that kind of gets squeezed into the doctrine. So it's a little bit uncomfortable in that they don't quite know, like, how do you take what ultimately you'd think of is a jury question of the excessiveness of the force and put it into a rule structure, which has primarily been

enacted for application by judges in the context of motions to suppress. And then even in the civil setting, you have qualified immunity, which is also in the backdrop of the Barnes v. Felix case. Like, usually you're not going to get a jury question. And then what does the jury actually decide? There's some discussion of this in the Barnes

enacted for application by judges in the context of motions to suppress. And then even in the civil setting, you have qualified immunity, which is also in the backdrop of the Barnes v. Felix case. Like, usually you're not going to get a jury question. And then what does the jury actually decide? There's some discussion of this in the Barnes

It's a great question. I was thinking about this actually a few months ago. I'd love to see like jury instructions that are used in excessive force cases once you get past qualified immunity, right? So it'd have to be a case where there's disputed facts. They say we can't do this on qualified immunity. It goes to the jury. I don't know if they're pattern jury instructions or standard ones.

It's a great question. I was thinking about this actually a few months ago. I'd love to see like jury instructions that are used in excessive force cases once you get past qualified immunity, right? So it'd have to be a case where there's disputed facts. They say we can't do this on qualified immunity. It goes to the jury. I don't know if they're pattern jury instructions or standard ones.

That's exactly what ends up being decided by judge.

That's exactly what ends up being decided by judge.

Well, you'll have some cases where the court decides to read – Pearson versus Callahan gives them the discretion to either decide on QI or reach the merits. And so you'll have some number of cases where they reach the merits and presumably some where they say it's excessive force.

Well, you'll have some cases where the court decides to read – Pearson versus Callahan gives them the discretion to either decide on QI or reach the merits. And so you'll have some number of cases where they reach the merits and presumably some where they say it's excessive force.