Tenth Circuit En Banc Decision Produces Four Separate Opinions

I looked forward to a nice three-day break from reading court decisions over Presidents' Day weekend, so I was slightly disappointed to discover that a new Tenth Circuit decision was issued Monday afternoon.  I was even more disappointed to see that it was 43 pages long, accompanied by three dissents covering another 30 pages.

It didn't take long, though, to discover that the four opinions produced in Cortez v. McCauley, No. 04-2062, make for entertaining reading.  In an en banc decision, Judge Kelly wrote a 43-page majority opinion containing a whopping 28 footnotes, many of which are devoted to jousting with Judge Gorsuch in his 24-page dissent.  Interestingly, Judge Kelly was joined by Chief Judge Tacha and Judges Ebel, Henry, Briscoe, Lucero and Murphy -- all appointed prior to 2000, although Tacha, Ebel and Kelly are all Republican appointees -- while the the five dissenting judges (Hartz, O'Brien, McConnell, Tymkovich, Gorsuch and Holmes) were appointed to the bench after 2000.

The subject matter of the case might explain this before Bush II/after Bush II divide: whether law enforcement officers were entitled to qualified immunity when they arrested two individuals without probable cause. The defendants had arrested a husband and detained his wife on suspicion that the husband had molested a child based on unsubstantiated double-hearsay originating from a two-year-old.  The majority held that had violated the plaintiffs' Fourth Amendment rights, and that under the circumstances the plaintiffs' rights were clearly established when that violation occurred. 

The majority also held that an excessive force claim is not subsumed by an unlawful arrest claim:  "[A] contrary interpretation risks imposing artificial limits on constitutional claims without any basis other than a fear that such a distinction might be too fine for a jury (a fear we do not agree with)."  Although the court did not necessarily condone how the arrest of the husband was handled, it held that the facts of the case did not bear out an excessive force claim:

Although the dignity aspects of this arrest are troubling, specifically hauling [the plaintiff] (clad only in his shorts) into the patrol car in the middle of the night without any explanation, the police were investigating a serious felony and claimed a need for quick action to separate the accused from any other children that might be in the home.

On the other hand, the court found that the wife's excessive force claim could proceed because the wife's detention -- being removed from her home and held in a patrol car for an hour in the middle of the night -- was unsupported by any reasonable suspicion.  Significantly, the court noted that "[p]hysical contact is not required for an excessive force claim -- patently unreasonable conduct is."

Judge Gorsuch's dissenting opinion takes issue with the majority's holding that it was clearly established at the time of the unlawful arrest of the husband that the unsubstantiated double hearsay originating from a two-year-old is insufficient to supply probable cause for arrest.  He argues that neither the plaintiffs nor the majority came up with any case precedent that would have clearly established this at the time of the arrest:  "What exactly would have put the officers on clear notice that relying on a two-year-old's statement to support the arrest of [the plaintiff] was impermissible?"  Judge Gorsuch also disagrees with the majority's conclusion that the wife's excessive force claim should be permitted to proceed, because the force used against her did not involve physical injury or at least the threat of imminent and severe physical harm, such as pointing a gun.  (Despite the vehemence of Judge Gorsuch's dissent, it is tempered by his use of the word "respectfully" in the last line of his opinion.)

(Incidentally, although I have not done any research to substantiate this, I would be willing to bet that Judge Kelly has never before authored a published opinion containing anywhere near the 28 footnotes contained in the Cortez opinion.)