Caniglia- A Win For the Fourth Amendment

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Over the past couple of years, it seems as if the Fourth Amendment has been under attack. The headlines featuring stories of no-knock raids and other invasive search tactics used by the police. Despite the specter of an expansive police state looming above his, there is a silver lining. There have been some minor victories. One shining example was the Supreme Court ruling inCarpenter V. United States. In which, the high court ruled that conducting warrantless seizures of phone records to be unconstitutional. Another recent example of the court ruling in favor of the Fourth was Caniglia V. Strom.

In Caniglia, the court rejects the First Circuit’s expansive interpretation of the Community Care Taking Doctrine.  Caniglia had been quarreling with his wife pulled out a pistol and asked her to put him “out of his misery”. Mrs. Caniglia decided to spend the night in a hotel to allow her husband to calm down. After not hearing from Edward, she called Cranston police to conduct a welfare check on him. Responding officers reported that Mr. Caniglia seems to be stable. He consented to be evaluated at a psychiatric hospital providing police did not confiscate his firearms. Police later came by the home to remove the guns. Officers informed Mrs. Caniglia that Edward had consented to his firearms being seized. After several failed attempts to recover his guns, Caniglia sued under Section 1983. The First Circuit ruled that the actions of the officers were permissible under the Community Care Taking Doctrine. This decision would subsequently be overruled by the Supreme Court.

Community Care Taking Doctrine

Before reviewing the SCOTUS decision there is still one question that remains. What is the Community Care Taking Doctrine? It is the legal doctrine that enables warrantless searches and entry for noncriminal policing functions. Actions that promote the general interest of the community. This legal construct was devised in the early 1970s because of the Cady V. Dombrowski decision. The petitioner, a Chicago police officer, had been involved in a drunk driving accident. His service revolver had been left in the vehicle. The court viewed this action on the part of the local police department to be legitimate. Recovering the weapon would protect the public from it “… falling into the wrong hands”. Epitomizing the logic of the doctrine in one single case.

SCOTUS Decision

Justice Thomas in his written opinion sums up the major flaws of extending the Community Care Taking exception to Caniglia. A case that has the rare distinction of being a unanimous court decision.  In a nutshell, his concerns included the lack of justification in previous case law and the constitutional distinction between the home and vehicles. Making the claims that the police acted within the scope of the doctrine questionable.

Lack of Legal Justification

Justice Thomas direct states in his opinion that the First Circuit’s interpretation “… goes beyond anything this Court has recognized.”. The presumption being that generally, home searches require a warrant. By Thomas’s assessment, the lower court applied this doctrine merely because the nature of the search was noncriminal. The conditions of a search being permissible under the doctrine must be for purposes outside of a criminal investigation. The logic in Cady was specific to impounded vehicles already in police custody. It is reasonable to permit officers to assist motorists in trouble on the roadways. However, this privilege allotted to facilitate officers in completing their civic duties should not be viewed as an “… open-ended license..”.

Thomas holding the Care Taking Function to the parameters of Cady establishes effective limits on the doctrine. Favoring the First Circuit’s decision would only further erode the Fourth Amendment. Why?  Since our legal system is influenced by English Common Law, past case precedence directs future court decisions. If there was a case history justifying an expansive interpretation of the doctrine, the logic would have to be continued in subsequent cases. Only further eroding our Constitutionally held right to privacy and baseless searches.

The Constitutional Difference between the Cars and Homes

From the perspective of the Fourth Amendment, there is a difference between the right of privacy in the home and one’s vehicle. This was a point held by Justice Thomas. He expresses in his opinion that the core of the Fourth Amendment was that a person could retreat to their home free of any undue inference from the government; Citing Florida v. Jardine. A major caveat being the instance of exigent circumstances.  A point of argument the First Circuit failed to establish, considering if Mr. Caniglia was a threat himself, action would be necessary immediately. Not hours after the fact. Leading Justice Thomas to state  “…First Circuit… goes beyond anything this Court has recognized..”. Because the officers lack both a warrant and consent of the owner and effectively violated the sanctity of his home.

The Community Care Taking Doctrine has traditionally been applied to vehicles. In the corpus of case law, there has always been a different expectation of privacy in the home. Carroll V. United States, one of the first SCOTUS cases to address automobile searches found that the mobile nature of cars made warrantless searches crucial. However, a house is a stationary private property. Outside of the scope of extenuating circumstances or a warrant in hand, police entering the home is a civil rights violation. The officers who seized Mr. Caniglia’s guns were out-of-line.

United States v. Walden (1974)

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In the past decades proceeding with the initiation of the drug war, the concern of the militarization of civilian policing has been articulated by many critics. Where the War on Drugs left off the War on Terrorismonly serviced to intensify this distributing trend in law enforcement practices (Hall & Coyne, 2013, p.488-489). Qualitatively substituting Robert Higgs’s theory of the Ratchet Effect, first formulated in his landmark book Crisis and Leviathan (1987).  To summarize this theory, it simply that government powers are expanded during times of crisis. Once the impending panic of the emergency is over enforcement eases up, but the state still retains the powers and privileges allotted during the emergency.  Proving a framework for understanding the evolution of the militarized police state. America’s crusades against drugs and Jihad have certainly developed the pretext for expansive policing powers and bigger budgets for military-style equipment. One of the most salient examples of this overreach is the use of enlisted military members to enforce civilian law. 

One would assume that we would have some sort of constitutional safeguard or another form of legal protection from the overlap between the execution of military operations the enforcement of civilian law? The Posse Comitatus Act made it punishable by law to use the army (later extended to include the air force) to enforce civilian law). Unless the police action is covered under a constitutional stipulation or congressional approval. The law was passed in part as a reaction (p.2) to the use of federal troops in former Confederate states years after the Civil War had ended. While the act explicitly prohibits the use of military force as a means of enforcing civilian law there are several exceptions. Most notably congressional approval and any stipulations expressed in the U.S. Constitution. A white paper from the Rand Corporation details all of the legally defined expectations to the Possess Comitatus Act:

• National Guard forces operating under the state authority of Title 32 (i.e., under state rather than federal service) are exempt from Posse Comitatus Act restrictions.

• Under the presidential power to quell domestic violence, federal troops are expressly exempt from the prohibitions of the Posse Comitatus Act, and this exemption applies equally to active-duty military and federalized National Guard troops.

• Aerial photographic and visual search and surveillance by military personnel were found not to violate the Posse Comitatus Act.

• Congress created a “drug exception” to the Posse Comitatus Act. Under recent legislation, Congress authorized the Secretary of Defense to make available any military equipment and personnel necessary for the operation of said equipment for law enforcement purposes. Thus, the Army can provide equipment, training, and expert military advice to civilian law enforcement agencies as part of the total effort in the “war on drugs.”

• Use of a member of the Judge Advocate Corps as a special assistant prosecutor, while retaining his dual role in participating in the investigation, presentation to the grand jury, and prosecution, did not violate Posse Comitatus Act.

• The Coast Guard is exempt from Posse Comitatus Act during peacetime.

• Although brought under the Act through DoD regulation, described above, the Navy may assist the Coast Guard in pursuit, search, and seizure of vessels suspected of involvement in drug trafficking. (P.2-3).

The case of the United States v. Walden (1974)  presented a ruling that could be construed as being contrary to the very nature of the Posse Comitatus Act. Citing a lack of clarity for excusing the use of enlisted members of the armed services to intervene in the investigation of two civilians. Even though the use of enlisted Marines does not fit categorically with any of the established exceptions of the Comitatus Act. Ruby and William Walden were convicted of selling firearms to minors and nonresidents based upon evidence gathered in an ATF sting. The Walden’s were convicted of violating federal laws governing the sales of firearms. A vast majority of the evidence collected supporting the state’s case came from three enlisted Marines and a Treasuring agent posing as customers. Even though the use of Marines in such exercises is prohibited by Navy regulations under the Comitatus Act.

How is the use of military personnel justifiable when the court even acknowledges that such measures are outside the limits of the law?  The court reasoned that the “Comitatus Act does not contravene any congressional purpose to exclude Marines and other Navy personnel from the Act’s coverage” the United States v. Walden, 490 F.2d 372, 374 (4th Cor. 1974). Expressing the inference that the act did not extend to the Marine Corps, as the Navy was not explicitly included in the language of the law.  It should be noted that the Marine Corps is overseen by the Department of the Navy. However, there is faulty logic in this reasoning is that the exceptions to the law are detailed in writing. Granted some of the most notable exceptions have come after 1974. Some of the more expansive exceptions have come as a result of the War on Drugs. The Military Cooperation with Civilian Law Enforcement Agencies Act permitted the U.S. military to assist law enforcement bureaus with drug interdiction efforts. However, such a pivotal exception has little pertinence to this case for two main reasons. The first reason is that this case involves the violation of federal gun laws, not any statutes regulating controlled substances. The second reason being, the law wasn’t passed until 1981. Making the strength of this argument rest entirely on a technical loophole, when the clear intent of the Comitatus Act is to prevent military intervention in civilian affairs.

The court also expounded upon the lack of clarity concerning the parameters and enforcement of the Comitatus Act.

In the appeals at the bar, the evidence of the defendant’s guilt is overwhelming. While the bulk of the evidence was obtained by violating the Instruction, there is lacking any evidence that there was a conscious, deliberate, or willful intent on the part of the Marines or the Treasury Department’s Special Investigator to violate the Instruction or the spirit of the Posse Comitatus Act. From all that appears, the Special Investigator acted innocently albeit ill-advisedly. The Instruction provides no mechanism for its enforcement and the Act, where it is applicable, renders the transgressor liable to criminal penalties but does not provide that “[t]he criminal is to go free because the constable has blundered.” People v. Before, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (Cardozo, J.).

United States v. Walden, 490 F.2d 372, 376 (4th Cor. 1974)

From a normative standpoint, the court’s assumptions detailed above are quite irksome. Typically private citizens have held to the letter of the law regards of their ignorance or intentions. One idiom that encapsulates the spirit of this disparity is “ ignorance of the law is no excuse” (ignorantia juris non excusat). It defies reason to exclude public officials, law enforcement officers, and military personnel from this maxim. The recent debate about eliminating Qualified Immunity articulates some of these concerns regarding an asymmetrical administration of law. Creating a conspicuous double standard. Equality in the administration of the law is a purported virtue of the American legal system. It does appear as if the façade vanishes like a misty mirage the deeper one digs into the depths of case law.

Only compounding matters the court still held the convictions against the Walden’s to be valid, distinguishing this situation under which offenders have been released due to Fourth Amendment violations. The court argued that :

“…First, the proscription in the Instruction against the use of Marines in ordinary civilian criminal law enforcement was until today far less clear and far less widely known than the prohibition of the Fourth Amendment against unreasonable searches or the rules of a court requiring an accused to be produced before a magistrate within a designated period after apprehension…”

The United States v. Walden, 490 F.2d 372, 377 (4th Cor. 1974)

The court continued to argue that the action of incorporating enlisted Marines was lawful stating that:

“Secondly, the Instruction expresses a policy that is for the benefit of the people as a whole, but not one that may fairly be characterized as expressly designed to protect the personal rights of defendants” the United States v. Walden, 490 F.2d 372, 377 (4th Cor. 1974)

“Thirdly, the fact that the Instruction provides no mechanism for its enforcement — and especially no criminal sanction for its violation — and that its legal effect was far from obvious, means that admission of the evidence of guilt does not require the court to condone “dirty business.” The United States v. Walden, 490 F.2d 372, 377 (4th Cor. 1974)”

More important than any of the foregoing is the fact that this case is the first instance to our knowledge in which military personnel has been used as the principal investigators of civilian crimes in violation of the Instruction. We are not aware from the reported decisions of other courts that there has been any other violation, let alone widespread or repeated violations. The United States v. Walden, 490 F.2d 372, 377 (4th Cor. 1974).

All four of these arguments are completely asinine. To summarize all the concerns into concise categorizes the court felt due to the public safety concerns and ambiguity it was fair to view these the investigative operations of the Marines as being legal. The irony is that citing a lack of precedence for enforcement or penalties for such a transgression when it is a natural corollary to prohibiting the Airforce and Army in policy actions. Both situations are clear analogs to one another. Would such pedantic games of semantics be played over the crimes of an ordinary citizen? If a citizen was deemed to have used excessive force in a novel manner in a self-defense case, the state would not even for a nanosecond entertain any legal loopholes. Much how the qualified immunity defense functions as an exculpatory hall pass for avoiding ligation. If such actions were imitated by the civilian population,  the court would not condone a defense of ignorance or novelty on the part of the defendant.  

Bootleggers & Baptists- XXI: Qualified Immunity, New Mexico, Cherry Garcia, and an Oil Barron

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A Step in the Right Direction:

Last month New Mexico joined Connecticut, Colorado, and New York in being the first wave of states to tackle qualified immunity. There is some debate as to whether or not the bill passed by the New Mexican state legislature entails a full relinquishment of the legal doctrine (due to the fact it is a federally recognized doctrine). However, it is still a noble attempt to places limits on an abusive legal privilege. HB 4 passed by New Mexican lawmakers overtly prohibits invoking qualified immunity as a defense in court. Providing the complaint against the offending public official is within the statute of limitations (three years).

DEFENSE OF QUALIFIED IMMUNITY.–In any claim for damages or relief under the New Mexico Civil Rights Act, no public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall enjoy the defense of qualified immunity for causing the deprivation of any rights, privileges or immunities secured by the constitution of New Mexico. (HB 4, P.3, Sect 4)

 Regardless of whether this new law functions as an outright nullification of the immunity privilege or operates as an effective restriction, this is still a monumental reform. For any pundit advocating for civil liberties, this is unquestionable a step in the right direction and a model for other states to follow. Such reforms provide the constituency with the assurance that all public officials (not just police officers) will be held accountable. 

The Hippies and The Business Man:

Despite this positive change in state policy, the question remains did any outside interest groups support the bill? The answer is yes, outside interest groups did express support for the new law placing limits on qualified immunity. One of the interest groups even urged voters to engage in political action, by encouraging them to write to their lawmakers requesting they pass HB 4. Two of the more high-profile HB 4 advocates form one of the most ironic “odd-couple” coalitions that anyone could imagine. On the left side of the aisle, there was the Vermont-based ice cream producer Ben and Jerry’s. The founders of the ice cream boutique have long publicly and unapologetically embraced a progressive ethos. The right-wing portion of this unusual coalition is the organization Americans For Prosperity a conservative/libertarian group extensively funded by the Koch brothers. This political union can be best described as crunchy granola meets big oil.

Who Is The Bootlegger And Who is The Baptist?

In his seminal 1983 paper, Bruce Yandle explains oddball political alliances through the lens of a “Bootleggers and Baptists” coalition dynamic. At times, the dynamic can be more of an implicit union, where the Bootleggers ride the coattails of the Baptists through quietly supporting the initiative. In other instances, there is an actual coordinated effort towards collective action between the seemingly opposing political actors. Clearly, the bond formed between AFP and Ben & Jerry’s would be an example of the latter coalition dynamic. It is difficult to ascertain who is providing the moral argument for ending qualified immunity and which group benefits from the legal doctrine being prohibited. Leading to the speculation that this activistic relationship between the two groups could be a less common variant of the B&B coalition. Could both groups concurrently assume the role of Baptists despite their divergent interests? Could they both be Bootleggers? Is it even possible that they are both simultaneously Dual-Role Actors?

There are some salient ways in which both groups stand to benefit from advocating for ending qualified immunity. Since the death of George Floyd, public confidence in policing has hit a twenty-seven-year low. Making it popular to support policies that advocate for policing reforms. Both political actors have distinct reasons for vocally endorsing a bill that ends qualified immunity. For Ben & Jerry’s they appease their progressive peers by fulfilling the ideological obligation of fighting for social justice and racial equality. On the other hand, AFP gains social currency from promoting abolishing qualified immunity, through being consistent with their conservative/libertarian philosophy by justifying a constraint on state power. Outside of building credibility with their ideological peers, they also gain the respect of neutral parties who are currently dissatisfied with current policing practices. Fostering a positive public image can result in more business for Ben & Jerry’s and more donations and support for AFP. 

These inferences regarding the potential benefits of supporting HB 4 derived from a priori reasoning are not irrefutable. However, they are probable incentives either group would possess for their public activism. Both B&J’s and AFP also provide some thought-provoking moral justifications for ending this legal privilege. It would be a fallacy to attempt to paraphrase either group’s moral arguments. Below are direct quotes from both organizations’ websites detailing the moral concerns around qualified immunity.

Ben & Jerry’s Moral Argument:

“….Since George Floyd was murdered by Minneapolis police officers in May, tens of millions of Americans have taken to the streets all across the country to protest police brutality, systemic racism, and white supremacy—and it’s having a huge impact. Statues of enslavers and racists have come down. Black Lives Matter murals have gone up. Calls for defunding the police have run out. And many people—from everyday Americans to activists, athletes, experts, and lawmakers—are demanding the end of qualified immunity.

Qualified immunity? Here’s the deal: Qualified immunity allows police officers, while in the line of duty, to do pretty much anything to anybody, without fear of punishment.

Anyone who’s seen the videos of police violence during these protests is probably thinking exactly what we’re thinking, so let’s all say it out loud: Qualified immunity has got to go.” (Per the 

Ben & Jerry’s website.)

The moral argument for ending qualified immunity depicted on B&J’s website exemplifies the need for racial justice. Reasoning that due to institutional racism there is a dire need to nullify this legal privilege, due to the fact that it does a disproportionate impact on ethnic minorities. Providing a textbook example of social justice argument for abolishing QI. Nevertheless, a moral justification.

American’s for Prosperity’s Moral Argument:

Americans for Prosperity Senior Policy Analyst Jordan Richardson had this to say:

“Qualified immunity may have originated as a doctrine to protect good police officers working in difficult conditions, but now, four decades later, it has morphed into a doctrine that regularly protects egregious violations of constitutional rights. By damaging the trust and confidence that communities have in law enforcement, qualified immunity is harming the very police officers it was designed to protect. We are proud to sign this brief in support of defending fundamental rights and in support of restoring healthy police-community relationships.” (Per the AFP Website).

The argument presented by AFP rests on the standard base constitutionality and state power. Both points have been constant fixtures of right-wing political discourse (at least prior to Trump), making these focal points congenial to a conservative justification for ending QI. All because AFP presents an argument from the standpoint of individual liberty and B&J’s from the perspective of racial justice does not undermine the morality of either paradigm. Morality is not relative, however, it can be pluralistic. A policy can be just or unjust for multiple reasons. Therefore, AFP and B&J’s are concurrently championing moral arguments. It wouldn’t be shrewd to assign dynamic roles to either party, either could be seen as the Bootlegger or Baptist depending upon one’s political proclivities. In doing so we run the risk of veering into the territory of playing the “Red Team- Blue Team” game.

Why Ending Qualified Immunity Is A Better Policy Option Than Defunding

woman holding a sign in protest
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If someone puts their hands on you make sure they never put their hands on anybody else again.”
Malcom X


Libertarianism holds that the only proper role of violence is to defend person and property against violence, that any use of violence that goes beyond such just defense is itself aggressive, unjust, and criminal”
Murray N. Rothbard



Author’s Note:  Thank you Professor F.E. Guerra-Pujol for your assistance with editing this op-ed piece. Your stylistic and grammatical recommendations have brought this essay to the next level.

The essay was published by the AZ Capitol Times


Don’t defund police; eliminate qualified immunity


The Unpublished Letter to the Editor (QI)




Author’s Note: I submitted this piece to several local newspaper outlets. It appears as if none of these establishments have elected to publish my brief essay. It is possible that the my writing is a little weak. Even the topic is too technical or controversial.

I still applaud myself for attempting to take this on this issue in only 200-250 words ( Pinal Central: limit of 250 worded. AZCentral: limit of 200 words). This maybe a lesson to avoid issues that are overly complex when writing a letter to the local newspaper. Qualified Immunity requires more than 250 words to be properly addressed. I even had to cut references to William Baude’s 2018 paper on the subject.

That doesn’t  mean I have given up, there is another local publication that publishes longer form editorials.  After that I might give QI a rest, as I don’t want the content on  this blog to become to stagnant.

The top photo has nothing to do with the topic at hand. The free photo application   on WordPress was giving me some issues. So I decided to upload this photo I took back in April. I was walking my dogs around the neighborhood and thought the painted rock was interesting.




Dear Editor,

The death of George Floyd has left Americans with many questions. How did the police officer that killed Mr. Floyd still have a job after 17 previous complaints? How do we as a country combat police brutality? One potential solution may come from Representative Amash’s proposal to abolish Qualified Immunity. What is Qualified Immunity? It is a legal doctrine that protects government employees from being sued for performing essential job functions. Providing their actions do not violate any well-established rights.


The modern application of this legal status was defined by Harlow v. Fitzgerald (1982). Establishing the need for clear “statutory” evidence that the plaintiff’s rights have been violated. Eventually evolving into the requirement for a previous case in which the details of the violation are identical. Leading to instances of constitutional violations with no restitution. One glaring example, Baxter V. Bracey (2014), where the suspect was attacked by a police dog after surrendering. These strict requirements make it nearly impossible to seek proper recourse when our civil rights have been infringed upon.


Most police officers are decent and law-abiding. Few would ever dream of using cruel or unnecessary tactics to subdue a suspect. The minority of bad cops need to be held fully accountable for their actions. The best way to do so would be eliminating institutional barriers to punishment.