Nahmod Law

District of Columbia v. Wesby

The Court recently handed down District of Columbia v. Wesby, 2018 WL 491521 (S. Ct. 2018), involving §1983 Fourth Amendment claims against police officers and the District of Columbia arising out of the arrests of plaintiffs in a vacant house in the middle of the night. The officers had responded to a called-in complaint about loud music and various illegal activities, and discovered that the inside of the house was barren and in disarray. The officers smelled marijuana, saw beer bottles and liquor cups on the floor; they found a make-shift strip club, and a woman and several men in an upstairs bedroom. Then then got inconsistent stories about a “Peaches,” supposedly the tenant who gave the partygoers permission for the party. When Peaches was contacted by phone, she eventually admitted that she did not have permission to use the house, and the real owner thereafter confirmed this. The defendants then arrested the plaintiff party-goers for unlawful entry.

After charges were dropped, many the partygoers sued, alleging Fourth Amendment violations for unlawful arrest. The district court found that the officers violated the Fourth Amendment and, moreover, that they were not entitled to qualified immunity because they knew when they entered that they had no evidence the partygoers’ entry was against the will of the owner. A divided panel of the D.C. Circuit affirmed: Peaches’ “invitation” was central to majority’s determination that the officers lacked probable cause to enter: this vitiated the plaintiffs’ intent to enter against the will of the owner.

The Supreme Court Unanimously Reverses

The Supreme Court unanimously reversed in an opinion by Justice Thomas. It found that the officers had probable cause to arrest the plaintiffs. It stated: “Considering the totality of the circumstances, 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.” The Court chastised the D.C. Circuit majority for viewing each fact in isolation rather than as a factor in the totality of the circumstances. It also criticized the majority for dismissing as irrelevant circumstances that were “susceptible of innocent explanation.” Here, all of the circumstances suggested criminal activity.

Qualified Immunity and the Need for Specificity in the Clearly Settled Law Inquiry

Because the D.C. Circuit had also ruled against the officers on qualified immunity grounds, the Court in Wesby went on to determine that the officers were protected by qualified immunity as well. It explained: “It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” Emphasizing the need for specificity in making the clearly settled law determination, the Court “readily” concluded that the officers were protected by qualified immunity:

The officers found a group of people in a house that the neighbors had identified as vacant, that appeared to be vacant, and that the partygoers were treating as vacant. The group scattered, and some hid, at the sight of law enforcement. Their explanations for being at the house were full of holes. The source of their claimed invitation admitted that she had no right to be in the house, and the owner confirmed that fact.

The Court further pointed out that the plaintiffs did not identify a single precedent finding a Fourth Amendment violation in similar circumstances. The D.C. Circuit majority had relied on “only” one of its decisions, from 1971, which “did not say anything about whether the officers here could infer from all the evidence that the partygoers knew that they were trespassing.” In addition, existing District of Columbia precedent “would have given the officers reason to doubt that they had to accept the partygoers’ assertion of a bona fide belief.” Consequently, a reasonable officer would 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 defeats probable cause, that officers cannot 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.”

Justice Sotomayor concurred in part and concurred in the judgment, agreeing on qualified immunity.  Justice Ginsburg concurred in the judgment in part, arguing that the Court’s Fourth Amendment jurisprudence “sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.” In her view, the relevant jurisprudence  should sometimes take account of a police officer’s reason for acting.

Comments

Like the Supreme Court’s qualified immunity excessive force cases discussed in an early post–see https://nahmodlaw.com/2017/04/21/white-v-pauly-another-supreme-court-signal-on-excessive-force-and-qualified-immunity/–Wesby signals to federal courts and litigants that it takes qualified immunity very seriously in the false arrest setting as well. It insists on a particularized pro-defendant approach to the clearly settled law inquiry. In a very real sense, the Court’s instruction to federal courts is: Decide qualified immunity summary judgment motions exactly as we would.

It is worth noting in Wesby that the Court commented in footnote 8 that ‘[w]e have not yet decided what precedents—other than our own—qualify as controlling authority for purposes of qualified immunity.” The Court cited Reichle v. Howards, 566 U.S. 658 (2012), a First Amendment qualified immunity retaliatory arrest case, as “reserving the question whether courts of appeals decisions can be ‘a dispositive source of clearly established law’ [and] express[ed] no view on that question here.” The Court went on to explain that it was only addressing how a reasonable official could have interpreted those circuit court decisions.

It’s not entirely clear what this footnote means. One possibility is that it is a justification for the Court’s willingness in so many qualified immunity summary judgment cases to second-guess how the circuits have interpreted their own precedents in making the clearly settled law inquiry. Another possibility is that the Court may be hinting that only Supreme Court decisions can make clearly settled law, with the result that even if the relevant constitutional law is clearly settled in the forum circuit, the law remains unsettled in the absence of a Supreme Court decision. If that is correct, then this footnote has the potential to significantly expand the already broad protections of qualified immunity. But this reading is a stretch, at least at this point.

For more–perhaps too much more–on qualified immunity, see Ch. 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017).

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