Whether qualified immunity applies to § 1983 actions for failure to knock-and-announce in parole searches

QUESTIONS PRESENTED This case involves a circuit split on whether qualified immunity applies to § 1983 actions for failure to knock-and-announce in parole searches. The venerable knock-and-announce rule is part of the common law and the Fourth Amendment’s reasonableness requirement. Wilson v. Arkansas, 514 U.S. 927, 930-31, 932 n.2, 934 (1995). Richards v. Wisconsin, 520 U.S. 385, 394 (1997), rejected categorical exceptions to the rule for drug cases and held that officers must establish exigency or futility “whenever the unreasonableness of a no-knock entry is challenged.” Per se exceptions based on hypotheticals were rejected because “the knock-and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless.” Jd. at 394-95. Samson v. California, 547 U.S. 843, 855 n.4 (2006), upheld the reasonableness of suspicionless searches of parolees stating “[t]he touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.” The Court noted that the state parole search law there prohibited “arbitrary, capricious or harassing” searches and thus did not “inflict[] dignitary harms.” Jd. at 856 (brackets added). And, that same Term, Hudson v. Michigan, 547 U.S. 586, 594 (2006), held that “the knock-andannounce rule protects those elements of privacy and dignity that can be destroyed by a sudden entrance.” There, however, the Court refused to apply the exclusionary tule because the search was legally justified at its inception by a warrant. i The Seventh Circuit held in 2005 it was clearly established that the knock-andannounce requirement applies to parole or probation searches in 42 U.S.C. § 1983 cases. The Eighth Circuit here said no in 2019. Yet, no case has ever held knock-andannounce was not required for a parole search. The Eighth Circuit was incorrect on whether this is clearly established law. The questions presented are: 1. With a Fourth Amendment knock-and-announce violation in Petitioner’s parole search, and where no case in nearly 50 years ever held that knock-andannounce did not apply to parole and probation searches, is that “clearly established law” or “robust consensus” of case law for qualified immunity in a 42 U.S.C. § 1983 case? (Or, does Samson v. California undo all that case law under the Fourth Amendment?) 2. Without Congressional approval in 42 U.S.C. § 1983, should qualified immunity be reconsidered or eliminated in Fourth Amendment cases because qualified immunity leaves these constitutional violations wholly unremedied and undermines police deference to and respect for the Fourth Amendment? ii