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11TH CIRCUIT ISN’T LISTENING To the editor: Evan P. Schultz is quite correct to note in his column ” Pryor Offenses” ["Controversies & Cases," July 28, 2003] that the 11th Circuit is an “heir to the judicial gods,” having been blessed with such legal titans as Elbert Tuttle and Frank Johnson Jr. Because the Supreme Court hears so few cases, the bulk of the work carrying out those decisions is done by the circuits. Whether the 11th Circuit faithfully implements the Supreme Court’s decisions, as Tuttle and Johnson did during the civil rights era, is an area of legitimate concern. I was serving as a clerk for an 11th Circuit judge when the Supreme Court issued Hope v. Pelzer.That a case with facts as outrageous as Hopecould make it to the Court clearly displays the state of qualified immunity law in the 11th Circuit. Although Hopewas issued last year, signs are developing, as Mr. Schultz notes, that the case may not lead to significant change in 11th Circuit law. Consider Vaugh v. Cox,another case with unusual facts. In his efforts to stop a vehicle he believed to have been stolen by the driver, a police officer — with no warnings — fired three rounds into the vehicle, severing the passenger’s spine. Citing the tough standard Mr. Schultz discusses, the court granted qualified immunity over a vigorous dissent from Judge John Noonan, a conservative 9th Circuit senior judge. The Court vacated the opinion and remanded for reconsideration in light of Hope.The 11th Circuit again granted qualified immunity, finding that the Court’s decision on the use of deadly force in Tennessee v. Gardnerdid not provide “obvious clarity” that the officer’s actions were unconstitutional. Again dissenting, Judge Noonan stated that the facts do not differ “in any material respect from the conduct found to be unconstitutional” in Gardner.Whether Hopewill have a meaningful impact on the 11th Circuit remains to be seen. Cases in other areas of the law also display the 11th Circuit’s difficulty in coming to terms with Supreme Court precedent. Sitting en bancin 2000, the court upheld a school district policy permitting seniors to elect to have student-led messages during graduation ceremonies in Adler v. Duval County School Board.In resolving whether the purpose of the school district policy allowing student “messages” at graduation is to endorse prayer at graduation, Judge Phyllis Kravitch’s dissent — which only one of the other 11 judges joined — notes that the school district’s policy memorandum is entitled “Graduation Prayers.” The Supreme Court vacated Adlerand remanded for reconsideration in light of Sante Fe I.S.D. v. Doe.With only two judges changing their view, the 11th Circuit reinstated its prior opinion. Judge Ed Carnes, now dissenting, stated that Sante Fehad persuaded him that his previous conclusion was wrong, and that “Duval County’s ‘Graduation Prayer’ policy is facially unconstitutional under the Establishment Clause.” That this view garnered only four of the 12 judges is stunning. Todd Ellinwood Washington, D.C.

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