January 20, 2017 (Fault Lines) — William Baude wrote a recent, enjoyable law review article about the dubious provenance of “qualified immunity,” a doctrine that shields public officials from liability for violating constitutional rights when those rights are not “clearly established.” The whole thing is surprisingly readable, and Scott Greenfield does a great job going over the highlights.
But the biggest take-away is this: even though there is no statute and little case law before 1960 that grants qualified immunity to police officers, the Supreme Court almost always goes in favor of the officer, reasoning that it must summarily reverse lower courts because of the “importance” qualified immunity holds for society.
After all, it’s not like our country had a massive revolution in part, because soldiers who killed a group of colonists basically got away with it?
So there should be a thick ball of dread in your stomachs to see that the Supreme Court has recently granted another cert to protect our government’s precious rights from the cruel iniquities of its citizens.
In District of Colombia v. Wesby, a woman invited some friends to a house she was moving into in the District of Colombia. They invited some of their friends, and by the time all was said and done, twenty-one people had arrived. The police knocked on the door in response to a complaint from neighbors and saw a bunch of people, including some scantily clad women, dancing and having a good time. The hostess (Peaches) still hadn’t arrived, so the police reached her by phone.
She told police that she was moving into the home, and that everyone in the home had permission to be there. That would obviously make a trespassing arrest pretty difficult. And the officers, for some reason, really wanted to get some arrests that night. So they researched a little further and found out that the rental agreement for the home hadn’t been finalized. The guy who owned the home told them that he hadn’t given the partygoers permission to be there.
Now, different officers could react differently to this information. Some officers would have told everyone, “Sorry, but we just talked to the owner and he says your friend hasn’t officially moved in yet. You’ll have to go somewhere else.” Then everyone would have shuffled out the door. If someone refused, he could be arrested for unlawful entry. There wouldn’t be much of a story here.
But instead, the police officers arrested everyone inside for violating Washington D.C.’s “unlawful entry statute.”
There was only one problem: the statute in effect at the time only allowed for an arrest when the trespassers knew they were in the home against the “express will” of the rightful owner. In this case, the guests didn’t scatter or run when the police came—they appeared to believe they were in their rights. And while the rightful owner of the home did tell police that the guests had no permission to be in the home, the police never had any information to suggest that the guests knew that.
The officers knew or should have known the law, yet arrested everyone for unlawful entry. After everyone was brought down to the station, a lieutenant recognized the legal error and changed the charge to disorderly conduct. This was over the objection of the arresting officers, who noted that no one had been acting particularly disorderly but believed in their original charging decision.
Later, the officers were sued for false arrest, and the District Court, surprisingly, granted summary judgment for the plaintiffs, finding that no reasonable officer would believe he had probable cause to arrest the partygoers for either crime. The appeals court affirmed that decision, using language that probably dooms their decision at SCOTUS:
“Qualified immunity need not be granted every time police act unlawfully in a way that courts have yet to specifically address.”
Unfortunately, as Greg Doucette has pointed out, that seems to be exactly what qualified immunity is for. It’s there to make sure that police are free to make novel mistakes, so long as no court has expressly ruled on their unconstitutionality. And then, to add the cherry on top, courts often rule on the novelty question without addressing whether the conduct might be illegal in the next case.
The petitioners know this very well.
Like other courts of appeals that this Court has reversed in recent years, the District of Columbia Circuit failed to follow this Court’s clear instructions regarding qualified immunity. It reasoned that the law was clearly established for present purposes, in that: (1) probable cause requires “some evidence” of each offense element, including the mental state requirement; and (2) the mental state requirement for trespassing is whether the person “knew or should have known that his entry was unwanted.
Sure, in other words, officers aren’t supposed to arrest people when there’s no probable cause. But was there a case dealing with exactly this situation saying that police couldn’t make the arrest? Because surely if there was, the officers would have pored over it in their training to ensure that no civil rights were violated.
Basically, the petitioners argue (and will almost certainly win) that there is no clear law saying that officers can’t simply disbelieve people who claim to have a right to be somewhere and make an arrest. And while, sure, that leads to a nightmare scenario where homeowners can be dragged off in handcuffs at the whim of a skeptical police officer with no later recourse, that’s a small price to pay to ensure that the brave men and women making these arrests can sleep peacefully at night.
The doctrine of qualified immunity is likely to continue unabated. Unlimited liability for citizens, held to a strict knowledge of all statutes. Unlimited lenity for officers, required to understand the law with roughly the fullness that Lenny grasped bunny anatomy in Of Mice and Men.
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