OFFICERS ENTITLED TO QUALIFIED IMMUNITY FOR ARREST OF TRESPASSING PARTYGOERS

Courtesy of James R. Touchstone, Esq.

District of Columbia v. Wesby, 2018 U.S. LEXIS 760 (U.S. Jan. 22, 2018)

Facts

In March 2008, District of Columbia Metropolitan Police Department received a complaint of loud music and illegal activities at a house in Northeast D.C.  The caller, a former neighborhood commissioner, told police that the house had been vacant for several months.  When officers arrived at the scene, several neighbors confirmed that the house should have been empty.  The officers approached the house and, consistent with the complaint, heard loud music playing inside.  Inside, they found the house nearly barren and in disarray.  The officers smelled marijuana and observed beer bottles and cups of liquor on the floor, which was dirty.  There was no furniture downstairs other than a few padded metal chairs. Officers found a make-shift strip club in the living room, with several women in their underwear dancing and onlookers with cash in hand.  In an upstairs bedroom, officers found a naked woman and several men.  Officers saw one bare mattress on the floor, multiple open condom wrappers, and a used condom. Many partygoers scattered when they saw the uniformed officers, and some hid.

The officers questioned the 21 partygoers and got inconsistent stories. Many partygoers said they were there for a bachelor party, but no one could identify the bachelor.  Each of the partygoers claimed that someone had invited them to the house, but no one could say who.  Two women identified “Peaches” as the house’s tenant and said that she had given the partygoers permission to have the party, but Peaches was not there.  One of these women suggested Peaches had just started renting the house, but there were no boxes or moving supplies.  When the officers spoke by phone to Peaches, she was nervous, agitated, and evasive.  At first, she claimed that she was renting the house and had given the partygoers permission to have the party, but she eventually admitted that she did not have permission to use the house.  The officers contacted the owner, who confirmed that he had not given anyone permission to be there.  The officers then arrested the 21 partygoers for unlawful entry.  The police transported the partygoers to the police station, where the lieutenant decided to charge them with disorderly conduct.  The partygoers were released, and the charges were eventually dropped.

Several partygoers sued the District and arresting officers for false arrest under the Fourth Amendment and District law.  The District Court concluded that the officers lacked probable cause to arrest the partygoers for unlawful entry and that the officers were not entitled to qualified immunity.  On appeal, a divided panel of the D. C. Circuit affirmed.

Discussion

The United States Supreme Court granted review to resolve whether the officers had probable cause to arrest the partygoers, and whether the officers were entitled to qualified immunity.

Probable Cause

Addressing the probable cause issue, the Supreme Court began by explaining that the Fourth Amendment protects people from unreasonable searches and seizures. As arrests are “seizures” of persons, they must be reasonable under the circumstances. A warrantless arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer’s presence. Atwater v. Lago Vista, 532 U. S. 318, 354 (2001).

The Court observed that, “[t]o determine whether an officer had probable cause for an arrest, ‘we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.’” Maryland v. Pringle, 540 U. S. 366, 371 (2003) (quoting Ornelas v. United States, 517 U. S. 690, 696, (1996)). The Court noted that the probable-cause standard deals with probabilities and depends on the totality of the circumstances.  The Court further stated, “Probable cause “´is not a high bar.’” Kaley v. United States, 571 U. S. ___, ___ , 134 S. Ct. 1090, 1103 (2014).

Applying the standard to the present case, the Court observed that taken together (1) the information from the neighbors; (2) the condition of the house; and (3) the conduct of the partygoers allowed the officers to make several logical conclusions about the partygoers. Because most homeowners did not live in such conditions or permit such activities in their homes, the officers could infer that the partygoers knew that the party was not authorized. The officers also could infer that the partygoers knew that they were not supposed to be in the house because they scattered and hid when the officers arrived. The partygoers’ vague and implausible answers to questioning also gave the officers reason to infer that the partygoers were lying and that their lies suggested a guilty mind. Peaches’ lying and evasive behavior gave the officers reason to discredit everything she said. The officers also could have inferred that she lied when she said she had invited the partygoers to the house, or that she told the partygoers that she was not actually renting the house.

Considering the totality of the circumstances, the Court concluded, the officers made an “´entirely reasonable inference’” that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party. Pringle, supra, at 372. The Court held that a reasonable officer could conclude that there was probable cause to believe the partygoers knew they did not have permission to be in the house. Accordingly, the Court reversed the D.C. Circuit’s probable-cause holding.

Qualified Immunity

The Supreme Court next addressed whether the officers were entitled to qualified immunity.  The Court initially noted that, “´Our conclusion that the officers had probable cause to arrest the partygoers is sufficient to resolve this case. But where, as here, the Court of Appeals erred on both the merits of the constitutional claim and the question of qualified immunity, ‘we have discretion to correct its errors at each step.’” Ashcroft v. al-Kidd, 563 U. S. 731, 735 (2011); see, e.g., Plumhoff v. Rickard, 572 U. S. ___, 134 S. Ct. 2012 (2014). The Court stated, “[w]e exercise that discretion here because the D. C. Circuit’s analysis, if followed elsewhere, would “´undermine the values qualified immunity seeks to promote.’” al-Kidd, supra, at 735.

The Court explained, “[u]nder our precedents, officers are entitled to qualified immunity under §1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was “´clearly established at the time.’” Reichle v. Howards, 566 U. S. 658, 664 (2012). The Court further noted, “´[c]learly established’ means that, at the time of the officer’s conduct, the law was “‘sufficiently clear’ that every ‘reasonable official would understand that what he is doing’” is unlawful.” al-Kidd, supra, at 741 (quoting Anderson v. Creighton, 483 U. S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). “In other words, existing law must have placed the constitutionality of the officer’s conduct ‘beyond debate.’” al-Kidd, supra, at 741. The Court stated that this “demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Malley v. Briggs, 475 U. S. 335, 341 (1986).  The Court next noted that, in the warrantless arrest context, a body of relevant case law is usually necessary to clearly establish the answer with respect to probable cause.[1]

In the present case, the Court found that even assuming that the officers lacked actual probable cause to arrest the partygoers, they were entitled to qualified immunity because, given the circumstances with which they were confronted, they reasonably but mistakenly concluded that probable cause was present.  The Supreme Court observed that neither the D.C. Circuit’s panel majority nor the plaintiff partygoers identified a single precedent finding a Fourth Amendment violation under similar circumstances.  Nor was this an obvious case where a body of relevant case law was unnecessary.

The Supreme Court rejected the D.C. Circuit’s reasoning that a suspect’s bona fide belief of a right to enter vitiates probable cause to arrest for unlawful entry.  The Supreme Court found that looking at the entire legal landscape at the time of the arrests, a reasonable officer could have interpreted the law as permitting the arrests here.  There was no controlling case holding that a bona fide belief of a right to enter defeated probable cause, that officers could not infer a suspect’s guilty state of mind based on his conduct alone, or that officers must accept a suspect’s innocent explanation at face value.  The Court further found there was no clearly established unlawful conduct committed by the officers under these circumstances here.  As such, the Court held that the officers were entitled to qualified immunity.

The Supreme Court, accordingly, reversed and remanded the judgment of the D. C. Circuit panel.

HOW THIS AFFECTS YOUR AGENCY

The Wesby case provides yet another example of the Supreme Court’s application of the doctrine of qualified immunity to law enforcement actions.  This case follows the Court’s recent decision of White v. Pauly in early 2017, and reinforces the concept for lower courts, yet again, that the law must be clearly established by prior case law similar in nature to the case before the court that an officer’s conduct would violate the federal statutory or constitutional rights of another before that officer should be denied qualified immunity.  While the Supreme Court seems clear in its application of the doctrine, unfortunately, lower courts still seem to be struggling with the issue.  It is hoped that this case from the Supreme Court will prompt the lower courts to examine the defense of qualified immunity more closely when asserted in civil litigation and apply the doctrine in a fair and even-handed manner to protect the rights of law enforcement officers making difficult decisions in dynamic, rapidly evolving circumstances.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] Brosseau v. Haugen, 543 U.S. 194, 199 (2004).





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