LUER v. II (2021)

ORDER

Appellees move to recall and stay the mandate in light of Caniglia v. Strom, ––– U.S. ––––, 141 S. Ct. 1596, 209 L.Ed.2d 604 (2021), which held that there is no “freestanding community- caretaking exception” to the warrant requirement of the Fourth Amendment. In this case, we held that the appellant police officers were entitled to qualified immunity in certain respects because the officers did not violate rights of the appellees that were clearly established as of July 2016—long before Caniglia was decided. Appellees’ motion recognizes that this court had issued “prior opinions extending the community-caretaking exception to the home,” and argues that this court's precedent aligns with the decision of the First Circuit that was disapproved in Caniglia. The police officers were acting in light of pre-existing circuit law, and this appeal required us to determine what rights were clearly established as of July 2016. Because Caniglia did not address that issue, the motion is denied. There is no merit to appellees’ suggestion that recall of the mandate is necessary to permit the filing of a petition for writ of certiorari.

Judge Kobes concurs in the result.