There is some truth to what the old-timers who are long in the tooth say: yeah, we can just ignore that, that’s federal, we’re in state, we don’t have to listen to it.
That is true. And the reason it’s true is that state courts have their own sovereignty. They have their own authority to interpret the Fourth Amendment as they see it.
The California Supreme Court can absolutely disagree with the Ninth Circuit. If they wanted to take up a similar case, they could say no, we can point guns at people as a matter of routine during these stolen car stops.
The problem, though, is why would you do that?
Where it costs you money
Here’s the problem.
A person in your city gets pulled over at gunpoint. Your officers are not articulating any danger, the kind of articulation the Ninth Circuit wants to see.
Your driver is not going to run to the state courts to sue you. They’re going to run to federal court, because they know they have a case that’s exactly on point saying you can’t do it.
So they’re going to get paid.
You will write checks, even while your officers are saying hey, don’t worry about it, we have our own sovereignty, where’s the California state court case that says we can’t do that?
Okay, fine. You’re right. But the problem is you’re going to pay money, because it’s clearly established.
That’s the qualified immunity trap
There it is. That second part of qualified immunity: was it clearly established?
And there, the Ninth Circuit is the one that establishes it.
You don’t get to judge shop. The plaintiff gets to court shop.
If I’m a plaintiff’s attorney, and I’m in the business of suing cops, I’m not going to go to state court, because there’s no case on it there. I’m going to federal court. And that’s all I need.
Does that make sense?
That’s the problem with ignoring the Ninth Circuit. You do it at your own risk.
Related from Blue to Gold
- Losing Qualified Immunity
- Can Police Do a High-Risk Stop Just Because a Car Might Be Stolen?
- Panels and Precedents: A Mini-Course on the Federal Circuit Courts
This article is an edited transcript of Roadside Chat Ep. #734. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
