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This edition of The Informer may be cited as 3 INFORMER 15.
The Informer – March 2015

Article

Qualified Immunity: The Contract between Law Enforcement and the Courts

Tim Miller, Attorney Advisor / Senior Instructor – FLETC Legal Division...........................................4

 ♦

Case Summaries

United States Supreme Court

Yates v. United States: Whether the term “tangible objects” in 18 U.S.C § 1519

was limited to those objects capable of recording or preserving information.............................7

 ♦

Circuit Courts of Appeals

Third Circuit

United States v. Wright: Whether evidence should be suppressed when the 

search warrant did not describe with particularity the items to be seized, nor 

did the warrant include the affidavit describing those items, which had been

incorporated by reference, when the officers executed the warrant............................................8

Fifth Circuit

United States v. Wright: Whether the defendant was in custody for Miranda purposes

when he made incriminating statements to an officer.................................................................8

Sixth Circuit

Brown v. Lewis: Whether officers were entitled to qualified immunity for pulling a 

compliant motorist from a car, throwing her to the ground, and handcuffing her.......................9

Eighth Circuit

United States v. Williams: Whether an officer lawfully impounded defendant’s vehicle.....10

Eleventh Circuit

United States v. Barber: Whether the driver of a car had the authority to consent to a 

search of a bag belonging to a passenger in his car...................................................................11

District of Columbia Circuit

Fenwick v. Pudimott: Whether officers were entitled to qualified immunity after they

shot a suspect who struck an officer with his car and then continued to drive away................11

♦

2014 Case Digests: https://www.fletc.gov/supreme-court-cases

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2
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3
Qualified Immunity – The Contract between Law Enforcement and the Courts

Tim Miller

Attorney Advisor and Senior Instructor

Office of Chief Counsel / Legal Division

Federal Law Enforcement Training Centers

Glynco, Georgia 

There is an implied contract between law enforcement and the federal courts that goes like 

this:

We, the officers, promise to use constitutional force. And we, the courts, 

promise to put officers on notice about what is not. Absent a use of force that 

was clearly established as unconstitutional at the time the officer used it, the 

court will dismiss the case against the officer.1

 

Whether that contract was broken, and by whom, is one of the issues the Supreme Court will 

answer this year in San Francisco v. Sheehan.

2

Teresa Sheehan lived in a group home for people suffering from mental illness. Sheehan was 

not taking her medications and her mental health had deteriorated to the point where she was 

a threat. “Get out of here!” Sheehan shouted after a social worker entered her room, “You 

don’t have a warrant! I have a knife and I’ll kill you if I have to.” The social worker relayed 

the threat to the police, and two officers were dispatched to the home to take Sheehan into 

custody for 72-hours of observation and treatment. When the officers arrived, they knocked 

on the door to Sheehan’s room, announced themselves as police, and entered, but received the 

same greeting as the social worker: “Get out!” Sheehan was not kidding, either. Sheehan 

indeed had a knife. Sheehan grabbed the knife, raised it over her head, and came forward 

repeating: “I’ll kill you!” The officers backed out and closed the door behind them. With 

Sheehan inside her room, alone, and the officers outside in the relative safety of the hallway, 

they had options. One was to wait. Maybe back-up could safely talk her out of the room. 

The other was to go back inside and take Sheehan into custody themselves. The officers 

chose the second option. When the officers opened the door to Sheehan’s room, she 

predictably charged at the officers with the knife. When pepper spray did not stop the threat, 

the officers shot Sheehan. Sheehan survived, miraculously, and this lawsuit ensued.

Sheehan sued the officers for violating her Fourth Amendment right to be free from an 

unreasonable search and seizure. Sheehan claimed the entry into her room, or search was 

unreasonable because the officers did not have a warrant, but even if the officers’ entry was 

1 This is qualified immunity, the officer’s defense to standing trial. An officer can get qualified immunity two 

ways. First, considering the facts in a light most favorable to the party suing the officer, do the facts alleged 

show the officer’s conduct violated a constitutional right? If there is no constitutional violation, the case is 

dismissed. Assuming there was a violation of a constitutional right, the court must proceed to the second 

element. Was the right clearly established by law? If not, the case is dismissed. The court is not required to 

decide the elements in any particular order. The court may simply find the law was not clearly established, and 

save the potentially more difficult constitutional question for another day. For an officer to be denied qualified 

immunity, the court must find the force was not constitutional and the law was clearly established; in short, that 

the officer violated a clearly established constitutional right. 

2 The Supreme Court will answer two questions in San Francisco v. Sheehan, 743 F.3d 1211, cert. granted, 135 

S.Ct. 702 (2014). However, only one is discussed here: Whether the officers were properly denied qualified 

immunity. The other is whether Ms. Sheehan can sue the City of San Francisco under the Americans with

Disabilities Act. 

4

 
reasonable, the force used to seize her was not. The officers requested qualified immunity - -

the implied contract that the court will dismiss the case, absent a violation of a clearly 

established constitutional right. 

As far as the search was concerned, the Ninth Circuit Court of Appeals held the officers lived 

up to their end of the bargain. Specifically, the court concluded exigent circumstances 

excused the requirement to first obtain a warrant before entering Sheehan’s room. In 

addition, the court held the use of deadly force to seize Ms. Sheehan - - viewed [at least] from 

the standpoint of the moment of the shooting - - was also reasonable. However, the Court still 

refused to grant the officers qualified immunity and dismiss the case because of the 

“provocation” doctrine. In the Ninth Circuit, officers may be liable for an otherwise 

reasonable use of deadly force if the officers intentionally or recklessly provoked the deadly 

confrontation. Finding that the officers may have done exactly that, the Ninth Circuit would 

have sent the case to trial3 - - had the officers not appealed, and the Supreme Court granted 

certiorari. 

The Supreme Court will decide whether it was clearly established law that even where an 

exception to the warrant requirement applied, an entry into a residence could still be 

unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed 

and violent suspect within.4

 Clearly established law - - what does that mean? Sheehan’s 

right not to be seized by gunfire must be sufficiently definite so that any reasonable officer 

would know, that shooting Sheehan under the circumstances violates the Constitution! 

Existing precedent must have placed the question beyond debate. Qualified immunity is 

designed to protect all but the plainly incompetent or those who knowingly violate the law, 

which is not exactly a noble standard to live up to, but has a purpose in situations where 

police officers are likely to face public ridicule for not acting, and personal liability when they 

do - - especially where the suspect is predictably, unpredictable. 

Obviously, the Ninth Circuit believed the law was clear. The court stated, “If there is no 

pressing need to rush in, and every reason to expect that doing so would result in Sheehan’s 

death or serious injury, then any reasonable officer would have known [that violates the 

Constitution].” As existing precedent, the court cited its 1994 decision Alexander v. City and 

County of San Francisco.

5

 In Alexander, officers encountered a mentally disabled man who 

had barricaded himself inside his house after local health officials obtained a forcible-entry 

warrant to inspect his home for a sewage leak. After negotiations failed, officers ended a onehour standoff by storming the house. When the man fired a gun at the officers, the officers 

3

There is a caveat that goes along with qualified immunity, a defense, which if granted, would deny Sheehan her 

day in court. The court must accept Sheehan’s version of what happened. Considering the facts in the light most 

favorable to Sheehan, the Ninth Circuit believed the officers may have provoked the deadly encounter. Sheehan

was in her room, alone; she did not pose an immediate threat to herself; the officers were outside in the safety of 

the hallway; and, the home had been evacuated so that Sheehan could not harm anyone else. The officers 

disagreed with some of those facts; however, the Ninth Circuit was required to accept them. A trial would 

require Sheehan to prove her allegations; however, by a preponderance of the evidence. 4

To be clear, the issue is not whether the officers could enter Sheehan’s room, or whether Sheehan posed an 

immediate threat of serious bodily harm when they did. It was how the officers carried out the search and 

seizure that caused the Ninth Circuit to deny the officers qualified immunity. “What did you think was going to 

happen after you forced entry into her room?” This would be the argument by Sheehan’s lawyer at trial. 

Regardless of whether an emergency existed, officers are still required to carry out the search and seizure in a 

reasonable manner, without the use of excessive force. Even still, is the law clear that an otherwise lawful entry

is unlawful, if the person inside promises to attack? 5 29 F.3d 1355 (9th Cir. 1994).

5

 
returned fire, killing him. In the subsequent lawsuit, the officers were denied qualified 

immunity. After comparing the facts in Alexander to the facts in Sheehan, the court believed 

the facts in Sheehan were more troubling. In Alexander, the court noted that before 

attempting entry, the officers waited for back-up and attempted negotiations with the man 

inside the house.

But when ... can the officers go in? After two-hours, three hours? Is the law really clear? 

Making it less so is a circuit-split of opinion about when deadly force is not constitutionally 

excessive. Some circuits conduct the same two-part inquiry as the Ninth Circuit does.6

 Other 

circuits simply ask whether the force was reasonable at the moment the officer used it - -

making attempts to negotiate, irrelevant.7 Had Sheehan and Alexander occurred in a 

reasonable-at-the-moment circuit, their cases likely would have been dismissed. 

The Supreme Court will hear oral arguments on March 23, 2015. Predictions? Two are 

certain to come true. First, cases like Sheehan will happen again. Research on mental health 

epidemiology shows that mental disorders are common throughout the United States, 

affecting tens of millions of people each year, and that, overall, only about half of those 

affected receive treatment.8

 Second, there will be no winners in Sheehan. There never are in 

a case where a concerned citizen calls the police for help, and the police are forced to shoot 

the person needing it. The Supreme Court will simply decide whether to dismiss the case. 

Winning will be left for training - - training that develops the file in the brain that recognizes 

when to act, and when to wait. 

6 See Young v. City of Providence, 404 F.3d 4, 22 (1st Cir. 2005) and Sevier v. City of Lawrence, 60 F.3d 695, 

696 (10th Cir. 1995). 

7

See Nimely v. City of New York, 414 F.3d 381, 390 (2nd Cir. 2005)(an officer’s decision to use deadly force 

depends on the officer’s knowledge of the circumstances immediately prior to and at the moment) and Elizondo 

v. Green, 671 F.3d 506 (5th Cir. 2012). 8 That National Institute of Mental Health: www.nimh.nih,gov

6

 
CASE SUMMARIES

United States Supreme Court

Yates v. United States, 2015 U.S. LEXIS 1503 (U.S. 2015)

While conducting an offshore inspection of a commercial fishing vessel in the Gulf of 

Mexico, a conservation officer found the ship’s catch contained undersized red grouper, a 

violation of federal regulations. The officer directed Yates, the ship’s captain, to keep the 

undersized fish separated from the rest of the catch until the ship returned to port. However, 

when the ship returned, four days later, the officer suspected the fish presented to him were 

not the same fish he had discovered during his initial inspection. The officer questioned a 

crew member who admitted that Yates had instructed him to throw the undersized fish 

overboard and replace them with fish from the rest of the catch. 

The government charged Yates with destroying, concealing, and covering up undersized fish 

to impede a federal investigation in violation of 18 U.S.C. 1519. Section 1519 provides that a 

person may be fined or imprisoned for up to 20 years if he “knowingly alters, destroys, 

mutilates, conceals, covers up, falsifies or makes a false entry in any record, document, or 

tangible object with the intent to impede, obstruct, or influence” a federal investigation. 

Section 1519 is part of the Sarbanes-Oxley Act, passed in 2002 after the Enron Corporation 

accounting scandal in which the government alleged that corporate files were destroyed when 

corporate officials began to fear criminal prosecution. Yates argued he could not be 

prosecuted under §1519 because the phrase “tangible object” only applied to objects “used to 

record or preserve information, such as papers, computer hard drives, or electronic files, and 

not fish. 

The Court agreed, holding that a “tangible object” within the meaning of §1519 is one used to 

record or preserve information, and not the fish that were at issue in this case. The court 

noted that §1519’s caption, “Destruction, alteration, or falsification of records in Federal 

investigations and bankruptcy,” conveys no suggestion that §1519 prohibits the destruction of 

all physical evidence. In addition, the section of the Sarbanes-Oxley Act in which §1519 was 

placed is entitled “Criminal penalties for altering documents.” The court found the titles of 

these sections indicated that Congress did not intend the term “tangible objects” in §1519 to 

include physical objects that could not be described as records, documents or devices closely 

associated to them.

Click HERE for the court’s opinion.

*****

7
Circuit Courts of Appeal

Third Circuit

United States v. Wright, 2015 U.S. App. LEXIS 1939 (3d Cir. Pa. Feb. 6, 2015)

Officers suspected Wright was involved in a conspiracy to distribute marijuana and drafted a 

warrant application to search his apartment. In the portion of the search warrant that listed the 

items to be seized, the warrant incorporated by reference an attached affidavit that had been 

prepared by one of the officers. The affidavit summarized the officer’s knowledge of the 

conspiracy and stated that the officers expected to find further evidence in Wright’s 

apartment, including drugs, money and documents such as ledgers and phone lists. A 

magistrate judge approved the application, signing both the warrant and the attached affidavit. 

However, before officers executed the warrant, the affidavit listing the items to be seized was 

removed at the request of the government, and sealed in order to protect the ongoing 

investigation. When the officers received the final warrant, they did not realize that it no 

longer included the officer’s affidavit listing the items to be seized. Officers executed the 

warrant on Wright’s apartment without having the affidavit present, and seized evidence that 

was admitted against Wright. 

Wright argued the search of his apartment violated the Fourth Amendment because the 

warrant did not describe with particularity the items to be seized, as it did not include the 

officer’s affidavit.

Although the government conceded the seizure of evidence from Wright’s apartment violated 

the Fourth Amendment, the court held the exclusionary rule did not apply. First, the court 

concluded the violation in this case did not undermine the purpose of the Fourth 

Amendment’s particularity requirement because the officers confined their search to what was 

authorized in the warrant. Second, the magistrate judge found that probable cause existed to 

search for and seize every item listed in the officer’s affidavit. When the magistrate approved 

the warrant, the affidavit was attached and expressly incorporated by reference in the space 

for identifying the items to be seized. In addition, the magistrate signed both the warrant and 

the affidavit. Finally, the court held the government did not gain anything from the Fourth 

Amendment violation. Even if the list of items to be seized had been present during the 

execution of the warrant, the officers would have collected the same evidence, and Wright 

would have been unable to stop them. Consequently, the Fourth Amendment violation in this 

case had no impact on the evidence that was used against Wright at trial. 

Click HERE for the court’s opinion.

*****

Fifth Circuit

United States v. Wright, 2015 U.S. App. LEXIS 1685 (5th Cir. Tex. Feb. 3, 2015)

Officers executed a search warrant at Wright’s home in connection with a child pornography 

investigation. When the officers located Wright, they allowed him to get dressed and then 

escorted him to an officer’s unmarked police car, which was located in the parking lot of a 

church approximately thirty feet from Wright’s home. While walking to the car, an officer 

8
told Wright that he was not under arrest, and that he was free to leave at any time. Wright sat 

in the front passenger seat of the car, and was not handcuffed or otherwise restrained. At the 

beginning of the interview, an officer advised Wright of his Miranda warnings and again told 

Wright that he was not under arrest, and that he was free to leave. During the interview, 

Wright made numerous incriminating statements to the officers. 

Wright moved to suppress his incriminating statements, arguing that on three occasions 

during interview, he had unambiguously requested his right to counsel. 

First, for an individual to have a Fifth Amendment right to counsel under Miranda, that 

individual must be subject to a custodial interrogation. Second, a suspect is “in custody” for 

Miranda purposes when he is placed under formal arrest or when a reasonable person in the 

suspect’s position would have understood the situation to constitute a “restraint on freedom of 

movement of the degree” associated with a formal arrest. 

Here, the court never decided whether Wright ever unambiguously requested counsel under 

Miranda because the court held Wright was not in-custody for Miranda purposes when he 

made the incriminating statements to the officers. First, the interviewing officer on at least 

two occasions told Wright that he was not under arrest, and that he was free to leave. Second, 

there was no evidence that Wright was physically restrained during the interrogation, which 

took place near Wright’s home, in a car subject to public scrutiny. Finally, the transcript of 

the interview, and the cooperative tone throughout it, indicated the conversation was as much 

an opportunity taken by Wright to tell his story to the officer as it was an opportunity for the 

officer to obtain information from Wright. Consequently, as he was not in custody for 

Miranda purposes, the court held Wright’s statements to the interviewing officer were 

admissible against him. 

Click HERE for the court’s opinion.

*****

Sixth Circuit

Brown v. Lewis, 2015 U.S. App. LEXIS 2917 (6th Cir. Mich. Feb. 26, 2015)

A 911 operator dispatched officers to a house after receiving a call that a man inside was 

involved in criminal activity. As officers arrived, they saw a car drive away from the house. 

The officers followed the car and conducted a traffic stop. One of the officers opened the 

driver-side door and directed Kishna Brown, the female driver and sole occupant, to raise her 

hands and step out of the car. Brown raised her hands and began to step out of the car. 

However, before Brown’s foot touched the ground, two officers, with guns drawn, grabbed 

Brown by her hooded sweatshirt, threw her to the ground and handcuffed her. The officers 

released Brown ten-minutes later after they learned that Brown had just dropped off a female 

friend at the house, and was not involved in any of the events that led to the 911 call. 

Brown sued three officers, claiming the officers used excessive force against her in violation 

of the Fourth Amendment, along with state-law claims for false arrest and assault and battery. 

The court held the officers were not entitled to qualified immunity. First, the court held the 

officers had reasonable suspicion to conduct the traffic stop on Brown. Based on what the 

officers knew at the time, the court concluded the officers could have reasonably believed the 

9
man, who was the subject of the 911 call, was driving the car. Second, however, the court 

held it was unconstitutional for the officers to continue to detain Brown once they determined 

the man referenced in the 911 call was not in her car. Here, the officers should have been 

aware of Brown’s gender, and that she was alone in the car as soon as they opened her car 

door. In addition, the officers’ use of guns and handcuffs on Brown was not supported by any 

facts that would have caused the officers to believe Brown was a risk to the officers. As a 

result, the court found when the officers threw Brown to the ground and handcuffed her that 

the stop was transformed into an arrest without probable cause. Finally, at the time of the 

incident, the court held it was clearly established that pulling a compliant detainee out of a car 

and throwing her to the ground constituted excessive force. 

Click HERE for the court’s opinion.

*****

Eighth Circuit

United States v. Williams, 2015 U.S. App. LEXIS 1804 (8th Cir. Mo. Feb. 5, 2015)

An officer conducted a traffic stop and arrested Williams for theft. During the arrest, 

Williams refused verbal commands and resisted attempts to handcuff him. Officers then used 

physical force to eventually handcuff and control Williams. Pursuant to department policy, 

the arresting officer conducted an inventory search of Williams’ car. In the trunk of the car, 

an officer found a duffel bag that contained a loaded AK-47 rifle. Williams later admitted to 

the officers that he had stolen the firearm. The government indicted Williams for a variety of 

federal firearms offenses.

Williams moved to suppress the rifle, arguing the officer’s decision to impound his vehicle 

which led to the search and seizure of the rifle violated the Fourth Amendment.

The court disagreed. It is well-settled law that an officer, after lawfully taking custody of an 

automobile, may conduct a warrantless inventory search to secure and protect the vehicle and 

its contents. Here, the department’s tow policy left it up to an officer’s discretion whether to 

tow a vehicle after an arrest. The court commented that the Fourth Amendment allows the 

exercise of such discretion as long as that discretion is exercised according to standard 

criteria, and not based on the desire to search a vehicle for evidence of criminal activity. 

Here, the court concluded the inventory search was lawful because it was conducted pursuant 

to department policy, and not as punitive action toward Williams, or as a search for additional 

criminal evidence. First, the officer decided to tow Williams’ vehicle because the officer did 

not want to leave it in a high-crime neighborhood when he knew Williams might not be able 

to bond out of jail to retrieve it for some time. Second, if the officer had decided to leave the 

vehicle, per agency policy, he would have needed to get written permission from Williams. 

As Williams had just resisted arrest, the officer did not want to release Williams from 

handcuffs so Williams could sign the “Authorization Not to Tow” form. Finally, Williams 

was alone, and he was the only registered owner of the car, so there was no other licensed 

driver at the scene to whom the vehicle could be released. 

The court further held the officer’s failure to inventory all of the loose items of minimal value 

located in William’s car did not render the entire search invalid.

10
Click HERE for the court’s opinion.

*****

Eleventh Circuit

United States v. Barber, 2015 U.S. App. LEXIS 1659 (11th Cir. Fla. Feb. 3, 2015)

Officers stopped a car in which Barber was a passenger. After the driver, Robinson, 

consented to a search of the car, officers directed Barber to exit the car. During the search, an 

officer saw a bag on the passenger-side floorboard. The officer looked inside the bag and saw 

a handgun, Barber’s business cards and a photograph of Barber. After Barber admitted the 

handgun belonged to him, the officers arrested him for being a felon in possession of a 

firearm.

Barber argued the firearm should have been suppressed because Robinson lacked the 

authority to consent to a search of his bag.

First, the court held Barber had standing to challenge the search because he had a reasonable 

expectation of privacy in the bag. 

Second, the court held Robinson had apparent authority to consent to a search of the bag, even 

though the officers later learned the bag belonged to Barber. A third party has apparent 

authority to consent to a search if the officer could have reasonably believed the third party 

has authority over the area to be searched. Here, the court concluded the bag’s placement on 

the passenger-side floorboard, within easy reach of Robinson, coupled with Barber’s silence 

during the search, made it reasonable for the officer to believe Robinson had common 

authority over the bag. In addition, the court recognized that drivers do not usually place their 

bags on the driver-side floorboard, but drivers sometimes use the passenger-side floorboard to 

store their belongings. As a result, the officers could have reasonably believed Robinson had 

common authority over the bag; therefore, he could consent to its search.

Click HERE for the court’s opinion.

*****

District of Columbia Circuit

Fenwick v. Pudimott, 2015 U.S. App. LEXIS 2264 (D.C. Cir. Feb. 13, 2015)

In January 2007, three law enforcement officers suspected Fenwick was about to get into a 

stolen car and drive away. When the officers, who were standing across the parking lot, 

called to Fenwick and ask to speak to him, Fenwick ignored them, got into the car, and began 

to back up. The officers surrounded Fenwick’s car with guns drawn, and ordered Fenwick to 

stop. Fenwick ignored the officers and drove forward toward the parking lot exit, striking 

Pudimott with the car’s driver-side mirror. Fearing for their safety and the safety of 

pedestrians and vehicles the officers had seen in the area, Pudimott and one of the other 

officers opened fire, striking Fenwick. 

After Fenwick recovered from his wounds, he was convicted in the District of Columbia 

Superior Court of armed assault on a police officer. The Superior Court found Fenwick 

endangered Pudimott by accelerating forward while Pudimott was near the front of the car. 

11
Several months later, Fenwick sued the three officers, claiming that shooting him constituted 

excessive use of force in violation of the Fourth Amendment.

The court held the officers were entitled to qualified immunity because at the time of the 

shooting, the officers did not violate clearly established law. 

In 2004, the United States Supreme Court decided Brosseau v. Haugen. In Brosseau, an 

officer fired through the rear driver-side window of the suspect’s car as he accelerated 

forward, away from the officer. The officer testified that she shot the suspect out of fear for 

the safety of “other officers on foot” who, she believed were close by, and for “occupied 

vehicles” in the suspect’s path, and for anyone else who “might be in the area.” The suspect 

survived and was later convicted of a felony in which he admitted he drove his vehicle in a 

manner indicating “a wanton or willful disregard for the lives of others.” In the lawsuit that 

followed, the Supreme Court held the officer was entitled to qualified immunity. 

In this case the court held Fenwick failed to show the officers’ conduct was materially 

different from the officer’s conduct in Brosseau. Specifically, at Fenwick’s criminal trial, the 

District of Columbia Superior Court determined that moments before the shooting, Fenwick’s 

driving posed a “grave risk of causing significant bodily injury” to an officer. Because 

Fenwick operated his car in a way that endangered an officer, in an area recently occupied by 

pedestrians and other vehicles, the D.C. Circuit Court of Appeals held it was not clearly 

established that the officers violated the Fourth Amendment by using deadly force to stop 

Fenwick.

In addition, Fenwick was not able to establish that between the Brosseau decision in 2004 and 

the shooting in this case, which occurred in 2007, that the law in this area had changed.

Click HERE for the court’s opinion.

*****

12