False arrest verdict reinstated

Qualified immunity is the wild card of federal civil rights jurisprudence. If the state of the law is vague, a government defendant cannot be liable in damages for the civil rights violation. Also, if reasonable public officials could disagree whether their actions violated clearly-established law, they cannot be liable in damages, even if 20-20 hindsight in the cold light of day shows they violated the plaintiff's civil rights.

In an epic 64-page decision handed down on July 20, 2007, the Court of Appeals (Kearse, Cabranes and Katzmann) untangled false arrest and qualified immunity principles in reinstating a jury verdict that the trial judge took away from the plaintiff post-trial. The appeals court found that the trial judge improperly failed to credit the jury's view of the evidence. In doing so, the Court of Appeals turns in a primer on false arrest and qualified immunity law.

Zellner v. Summerlin began when the plaintiff showed up at a demonstration. From that point forward, the parties disagreed about what happened next. Zellner and his witnesses testified that he did nothing wrong. The police witnesses testified that Zellner engaged in "passive resistance" and obstructed legitimate police business by encouraging other demonstrators to stage a sit-down despite police efforts to maintain order. Since the videotape was inconclusive about Zellner's alleged disorderly conduct, the case went to the jury, which ruled in Zellner's favor on the false arrest claim and awarded him $85,500 in damages.

The trial court threw out the verdict on qualified immunity grounds. Qualified immunity is exactly as it sounds: the police have immunity from suit, but that immunity is qualified. If reasonable officers could disagree about the legality of the arrest, owing to the split-second judgments that law enforcement must engage in when making certain decisions, then the defendant officers are immune from suit.

The problem with the trial court's ruling was that it did not view the evidence most favorably to Zellner's position. The court had to do this because we presume that the jury took the evidence in that light, or else it never would have ruled in Zellner's favor. Logical arguments favoring the police must be rejected under this model if the jury saw things differently. In the false arrest context, where probable cause is a defense to liability, the Court of Appeals noted that the real standard in the qualified immunity context is "arguable probable cause," which courts and attorneys misinterpreted for years to mean "almost probable cause," which lowers the bar for police officers making an arrest. But the Court of Appeals reminded us that "arguable probable cause" is not an easy fallback argument for police officers: "If officers of reasonable competence would have to agree that the information possessed by the officer at the time of arrest did not add up to probable cause, the fact that it came close doe snot immunize the officer" from suit. The real inquiry is still whether "it was objectively reasonable for the officer to conclude that probable cause existed."

Under these standards, the Court of Appeals gave the plaintiff back his jury verdict. In doing so, the Court drew every inference in the plaintiff's favor, respecting the integrity of the jury's judgment. That it took the Court of Appeals 64 pages to flesh this out only confirms that false arrest and qualified immunity jurisprudence remains more complicated than we care to admit.