Wednesday, January 24, 2018

Sex, drugs and rock and roll = probable cause

The Supreme Court has unanimously ruled that the the police had probable cause to arrest partygoers who turned a vacant house into something resembling a strip club. The Court also finds the officers are entitled to qualified immunity. The case is not that remarkable, but the Justices make a few off-hand comments that will interest lawyers who handle Section 1983 cases.

The case is District of Columbia v. Wesby, decided on January 22. Justice Thomas describes the party. It makes Animal House look like a night at the library. Loud music, lap dancing, women running around in bras and thongs, used condoms lying around, drugs and alcohol, partygoers hiding in the closet when the police arrived and a woman named Peaches who was said to have permission for the party but who was not even there and became evasive and hung up the phone when the police tracked her down.

The lower courts said the police had no probable cause to arrest the party people for disorderly conduct. The Supreme Court reverses. An argument can be made that the police could not have assumed the partygoers were trespassing, but the police did not have to accept that argument when they made the arrests. Probable cause sets a relatively low standard. The police do not have to accept the arrestees' side of the story, and they can instead consider the totality of the circumstances in making their probable cause determination. In addition to the crazy madness going on at the house, the police were able to consider how everyone scattered when the police showed up and there was no bachelor for this purported bachelor party. In finding otherwise, the lower courts applied a technical analysis, viewing each fact in isolation. But the police do not have that luxury, the Supreme Court says. In the end,

The circumstances here certainly suggested criminal activity. As explained, the officers found a group of people who claimed to be having a bachelor party with no bachelor, in a near-empty house, with strippers in the living room and sexual activity in the bedroom, and who fled at the first sign of police. The panel majority identified innocent explanations for most of these circumstances in isolation, but again, this kind of divide-and-conquer approach is improper. A factor viewed in isolation is often more “readily susceptible to an innocent explanation” than one viewed as part of a totality. And here, the totality of the circumstances gave the officers plenty of reasons to doubt the partygoers’ protestations of innocence.
The Court also provides an extensive discussion on qualified immunity, which lets public officials like police officers off the hook if they did not violate clearly-established law. The Court reminds us that, to hold officers accountable for constitutional violations, the plaintiff has to show the rights violation was so clear that the officer was incompetent. You don't need a case on point but the cases have to be pretty close. As the Court says,

Given its imprecise nature, officers will often find it difficult to know how the general standard of probable cause applies in “the precise situation encountered.” Thus, we have stressed the need to “identify a case where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment. While there does not have to be “a case directly on point,” existing precedent must place the lawfulness of the particular arrest “beyond debate.” Of course, there can be the rare “obvious case,” where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances. But “a body of relevant case law” is usually necessary to “ ‘clearly establish’ the answer” with respect to probable cause.
Since there is no case out there that resembles this one, even if the police lacked probable cause, they would be protected by qualified immunity. Which brings me to two separate points. First, Justice Thomas notes that the Supreme Court has never told us what body of law governs the clearly-established case law analysis. Do we only look at Supreme Court cases? Or Circuit Court cases? Most if not all of the Court of Appeals hold that we review Supreme Court cases and the appellate rulings in whatever jurisdiction where the case is situated. In my world, that's the Second Circuit. But it may surprise civil rights lawyers to know that the law of qualified immunity is not clearly-established. If the Court limits this review to Supreme Court cases, that will kill off many civil rights cases. The Court does not hear as many cases as the lower Circuit Courts, which would give plaintiffs fewer cases to point to in claiming the defendant violated clearly-established law.

Another point surfaces in Justice Ginsburg's concurrence. As police misconduct plaintiffs know, in determining whether the police falsely arrested someone, we consider the objective basis for the arrest, not the officer's subjective reasons. So if the officer hates you and places you in custody for that reason, but an objective officer would have arrested you anyway (because there was in fact probable cause for the detention), then the arrest is legal. She writes,

The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. A number of commentators have criticized the path we charted in Whren v. United States, 517 U. S. 806 (1996) , and follow-on opinions, holding that “an arresting officer’s state ofmind . . . is irrelevant to the existence of probable cause,” Devenpeck v. Alford, 543 U. S. 146, 153 (2004) . See, e.g., 1 W. LaFave, Search and Seizure §1.4(f ), p. 186 (5th ed. 2012) (“The apparent assumption of the Court in Whren, that no significant problem of police arbitrariness can exist as to actions taken with probable cause, blinks at reality.”). I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry. 

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