Last week, the entire Eleventh Circuit refused to review en banc a ruling of a panel from the circuit’s Court of Appeals, in which the parents and girlfriend of an innocent man shot and killed by a police officer could not sue the officer because his conduct was not “clearly” illegal.

Andrew Scott was in his apartment playing video games with his girlfriend when four police officers arrived. As David French of National Review pointed out, the police had no search warrant, didn’t turn on their emergency lights, didn’t identify themselves as police, misunderstood a neighbor’s directions, and showed up at the wrong house, but Scott, who was acknowledged by both sides in the case had been retreating when he opened the door for the cops, was shot dead anyway.

Scott was holding a gun when he was shot; the police argued that he had pointed it at Richard Sylvester, the officer who shot him; Scott’s girlfriend said he had the weapon pointed downward as he backed away.

The officers had arrived at the apartment building where Scott lived after one of them had engaged in a pursuit of a motorcycle that had been speeding. Scott’s girlfriend and parents did not file a criminal case against Sylvester; they only filed a civil case asking for damages for the violation of Scott’s civil rights, but the court ruled they had no right to the damages. The court ruled that Sylvester was entitled to “qualified immunity” because he had not violated any of Scott’s “clearly established” legal rights.

As Slate’s Mark Joseph Stern wrote, “Judge Frank M. Hull wrote that Sylvester’s behavior was a variation on ‘the knock and talk rule.’ This rule allows officers to enter private property and knock on an individual’s door for ‘legitimate police purposes.’ Hull reasoned that Sylvester had merely engaged in a form of ‘knock and talk’ and that Scott could have simply declined to open his door. Shooting Scott once he did open the door, Hull wrote, did not violate any 'clearly established … constitutional rights.'”

Stern added part of Judge Beverly Martin’s angry dissent, in which she wrote: “Under no standard was it reasonable for the police to kill Mr. Scott when he answered the knock at the door to his home. He was not suspected of any crime (much less a violent crime) and he was standing inside his own house without threatening them.” She added that the police “were not engaged in a permissible ‘knock and talk’ when they killed Mr. Scott . . . there was no talk here. This was a knock and shoot.”

Martin felt Sylvester violated Scott’s Fourth Amendment rights by conducting a warrantless raid and using excessive force.

The Eleventh Circuit, in refusing to review the ruling en banc, defended its ruling by stating the plaintiffs could not cite a similar case with similar facts, writing, “Although the district court ruled that Deputy Sylvester’s conduct violated no ‘clearly established law’ as of July 15, 2012, the dissents fail to identify any cases with facts similar to the undisputed facts here, much less any similar cases where an officer was held to have violated the Fourth Amendment. See White v. Pauly, 580 U.S. ___, ___, 137 S. Ct. 548, 552 (2017) (per curiam) (admonishing that, in qualified immunity cases, ‘clearly established law should not be defined at a high level of generality,’ ‘must be ‘particularized’ to the facts of the case,’ and must give “fair and clear warning” to officers that their conduct is unlawful under the Fourth Amendment).”

French wrote: “In other words, since Scott’s attorneys couldn’t find another court that had ruled against the police in a similar set of disastrous circumstances, they were out of luck. But how’s this for a clearly established right? ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’ Much of the case turned on analysis of the Fourth Amendment, which lays out the right of the people to be secure against ‘unreasonable search and seizure.’”

Stern wrote:

The 11th Circuit has now effectively found an individual’s Fourth Amendment rights are diminished whenever he chooses to exercise his Second Amendment right to possess a firearm. Unfortunately, the 4th Circuit reached the same conclusion in a dreadful ruling handed down in January. The Supreme Court should step in soon to remedy the contradiction by clarifying that the exercise of one constitutional right cannot diminish the protection of another. This is an area where liberals and conservatives should be in agreement.

French agreed, noting of the 4th Circuit’s ruling, “That Fourth Circuit opinion was so broadly written that exercising your Second Amendment rights means that gun-owning citizens, in the words of a concurring judge, can even ‘face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment.’”

"The 11th Circuit has now effectively found an individual’s Fourth Amendment rights are diminished whenever he chooses to exercise his Second Amendment right to possess a firearm."

Mark Joseph Stern of Slate

French concluded:

Yes, there was conflicting evidence. Yes, the situation was confused and tense. No, we should not use this incident to indict all cops. But in the United States of America, when an agent of the state makes mistake after mistake and kills an innocent man who is “guilty” only of exercising his most basic and fundamental constitutional and human right of self-defense, at the very least he should have to face the possibility of paying for his mistake. And, at the very least, I should retain the right to open my door in tense situations under my terms. The Eleventh Circuit says I don’t. The Supreme Court should now say that I do.