Oren Kerr

And then you start getting case law established as to where the line is and you get the typical qualified immunity analysis. So you can very slowly create cases on this. But I agree that to the extent you leave open the time period and that becomes a huge uncertainty – then the Fourth Amendment standard becomes really uncertain.

And then you start getting case law established as to where the line is and you get the typical qualified immunity analysis. So you can very slowly create cases on this. But I agree that to the extent you leave open the time period and that becomes a huge uncertainty – then the Fourth Amendment standard becomes really uncertain.

And then a lot of the cases will get resolved on qualified immunity, presumably.

And then a lot of the cases will get resolved on qualified immunity, presumably.

Agreed. It would be one thing if they – were strong on the good faith exception and then rejected qualified immunity or vice versa. But instead, they are weak on both. I think basically the current justices are just not really comfortable with remedies in Fourth Amendment cases, or at least they have the same instincts in the civil and criminal setting.

Agreed. It would be one thing if they – were strong on the good faith exception and then rejected qualified immunity or vice versa. But instead, they are weak on both. I think basically the current justices are just not really comfortable with remedies in Fourth Amendment cases, or at least they have the same instincts in the civil and criminal setting.

So you end up in both contexts sort of avoiding merits rulings that would clarify the law.

So you end up in both contexts sort of avoiding merits rulings that would clarify the law.

I can imagine, too, some sort of a causation like inquiry, which I guess some of the lower courts had suggested, you know, maybe causation where you have some sort of you treat the issue well that you raised. To what extent is this the officer sort of doing the officer's task versus something maybe that's outside of that task? You can imagine that being relevant to it as well.

I can imagine, too, some sort of a causation like inquiry, which I guess some of the lower courts had suggested, you know, maybe causation where you have some sort of you treat the issue well that you raised. To what extent is this the officer sort of doing the officer's task versus something maybe that's outside of that task? You can imagine that being relevant to it as well.

And maybe some future cases will ultimately resolve that. I just doubt. I'm expecting a very, very short totality of circumstances. Now, go figure this out below kind of opinion.

And maybe some future cases will ultimately resolve that. I just doubt. I'm expecting a very, very short totality of circumstances. Now, go figure this out below kind of opinion.

Yeah. I mean, they were clearly interested in trying to lay out more rules beyond just send it back on a reasonable standard. I didn't think there was any clear alternative that emerged, and just the lack of an alternative... Unless they somehow decide, as we'll suggest, like spend a lot of time on this and really come to some conclusion that was not obvious that the oral argument is possible.

Yeah. I mean, they were clearly interested in trying to lay out more rules beyond just send it back on a reasonable standard. I didn't think there was any clear alternative that emerged, and just the lack of an alternative... Unless they somehow decide, as we'll suggest, like spend a lot of time on this and really come to some conclusion that was not obvious that the oral argument is possible.

But I didn't see the interest in that, at least in the argument.

But I didn't see the interest in that, at least in the argument.

Yeah, there's no shortage of issues, and there's some interesting petitions up there. The court called for response recently on a case involving the standard for emergency entry. Not a tech case, but there's a split on the standard for emergency entry. Issues there, but we don't have signs yet that there's something that they really are – raring to go on right now.

Yeah, there's no shortage of issues, and there's some interesting petitions up there. The court called for response recently on a case involving the standard for emergency entry. Not a tech case, but there's a split on the standard for emergency entry. Issues there, but we don't have signs yet that there's something that they really are – raring to go on right now.

Yes. I guess yes and yes. So I don't think these are the issues that they're going to want to take on. I don't think they feel that – I think there's sort of a hard thing to do, right? You've got to imagine what are the things that a group of nine people or six people or whatever the number is care about and think they really need to make changes on.

Yes. I guess yes and yes. So I don't think these are the issues that they're going to want to take on. I don't think they feel that – I think there's sort of a hard thing to do, right? You've got to imagine what are the things that a group of nine people or six people or whatever the number is care about and think they really need to make changes on.