Qualified immunity means never having to say you're sorry

Any civil rights lawyer knows about qualified immunity. It can surface on a motion to dismiss and turn a great case into a dead case when you least expect it. Qualified immunity means that public officials can win the case even if they broke the law. If the state of the law was uncertain when the defendant violated your constitutional rights, he wins the case, even if 20-20 hindsight makes it clear that he violated a constitutional provision. Then the courts put qualified immunity back into the attic, and it resurfaces when we least expect it.

This time around, the Court of Appeals ruled that two police officers violated the Fourth Amendment in searching a residence without a warrant. But they were immune from suit because the law was unclear at the time of the violation that their actions were unconstitutional.

The case is Moore v. Andreno. The Court of Appeals (Walker, Sack and Daniels) opened the opinion as follows:

Courts have long acknowledged that a person has the right to establish a private sanctum in a shared home, a place to which he alone may admit or refuse to admit visitors. Yet, with the recurrence of domestic violence in our society, we are loath to assume that a man may readily threaten his girlfriend, take her belongings, lock her out of part of his house, and then invoke the Fourth Amendment to shield his actions. Deputies Joseph A. Andreno and Kurt R. Palmer, responding to an emergency call, were faced with reconciling these two competing interests. While
they misapplied the relevant constitutional calculus, they are police officers, not lawyers or mathematicians. And thus, because the law governing the authority of a third party to consent to the search of an area under the predominant control of another is unsettled, and because Deputies Andreno and Palmer made a reasonable mistake in applying that law to the situation with which they were confronted, the district court erred in denying them summary judgment on qualified immunity grounds.

It all started when girlfriend went to boyfriend's house to retrieve her belongings when the relationship went sour. Girlfriend was worried that violent boyfriend was on his way home and that he would resort to violence. So girlfriend called the police in a panic, and they entered the house intending to defuse the pending firestorm. As the Second Circuit noted,

Upon their arrival, a “hysterical” [girlfriend] requested the Deputies’ assistance in retrieving her belongings from Moore’s study. She explained that she feared that Moore might return at any moment. She also informed the Deputies that she “wasn’t allowed in th[e] [study] unless [Moore] was there” and that she had cut the locks off the door. She may also have informed them that the Deputies were likely to find marijuana in the study.

Thanks to girlfriend's drug tip, boyfriend was arrested for drug possession. But the criminal court granted his motion to suppress the illegally-seized evidence. He filed a lawsuit against the police for the unlawful search. The district court held that boyfriend had a case. The Court of Appeals reversed on qualified immunity grounds. While the Court of Appeals noted that warrantless searches are presumed unconstitutional, the law gets murky when third parties give consent to search without a warrant.

The Circuit noted that, in Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court held that "a search conducted on the basis of one co-tenant’s consent is unreasonable as to a physically present and objecting co-tenant. In doing so, however, Randolph emphasized that the reasonableness of a consent search is informed by “widely shared social expectations.” For example, “[a] person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant.”

While, according to the Court of Appeals, the police in this case violated the Fourth Amendment in allowing girlfriend to "consent" to the warrantless search (as she did not actually have control over the premises and it was not her residence), at the time of the search, it was not clearly established through case law that a search like this was illegal. On one hand, girlfriend broke the locks to gain access to the study, where boyfriend's drugs were found. On the other hand, the police may have thought that she was in the study to rightfully get back her belongings, which could validate her consent. When the case law is murky and the police could reasonably disagree about the legality of the search, they get the benefit of the doubt. The law on third party consent for a warrantless search was too unclear to hold the police legally responsible, even if their actions in hindsight were illegal. Boyfriend may want an apology for the unlawful search (not to mention money damages), but qualified immunity means never having to say you're sorry.