What is qualified immunity?

Any litigator will tell you that bad facts make bad law. It is also said that the Supreme Court decides cases based on the Justices' personal experiences. In both senses, District of Columbia v. Wesby is probably not going to end well for the plaintiffs.

Over the past 35 years, beginning with a case called Harlow v. Fitzgerald, the Supreme Court has made it more difficult to sue police officers under 42 U.S.C. § 1983, the reconstruction-era federal law that allows citizens to bring private actions for civil rights violations.

As law enforcement officers exercising discretion in their duties, the reasoning goes, police officers should not be sued every time they make a mistake. The Supreme Court has cobbled together, through the facts presented by the cases it hears, a general rule that a police officer cannot be sued unless, at the time the officer violated a citizen's rights, it was clearly establishes that the violative conduct was unconstitutional. This has been very messy in practice.

How do you know if a right is clearly established? Well, the Court says you look at the decisions of the Supreme Court, of the governing U.S. Circuit Court and the state appellate courts with jurisdiction.

But the devil is in the details. The real question is, what degree of specificity do you apply to the facts? Defendants will always want to draw the facts more narrowly, to make the right appear less established, e.g. do police officers on the northeast corner of 138th Street and Lexington who see a drug deal involving 1.16 grams of a legal substance using night vision goggles have probable cause to arrest? Plaintiffs will always want to draw them more broadly, e.g. an arrest without probable cause.

Since the idea of the immunity is to protect officers in uncharted waters, it is critical for courts to properly determine what right is at issue, so that the state of the law can be accurately assessed.

In the 2009 case of Pearson v. Callahan, the Supreme Court made it considerably easier for lower courts considering defenses based on qualified immunity to dismiss § 1983 suits brought against law enforcement officers.  Following Pearson, trial courts were not required to determine whether challenged conduct violated a plaintiff's rights, so long as the court determined that the right at issue was not clearly established.

This puts even more pressure on the crucial task of determining the right that is actually at issue. 

The Facts of District of Columbia v. Wesby

On March 16, 2008, Metropolitan Police Department officers responded to a noise complaint for a house party. Upon arrival, the officers heard loud music coming from the house. The officers then entered the house and observed party guests, including Theodore Wesby, drinking and watching “scantily clad women with money tucked into garter belts.” The partygoers claimed that a woman called “Peaches” was the host of the party, and that she had received permission from the owner, from whom Peaches was leasing the house. One partygoer called Peaches on the phone for an officer, since Peaches was not present. Peaches confirmed that she had permission from the owner, but when an officer called the owner, the owner claimed that the lease had not been executed and that he had not given permission for the party. The officers subsequently arrested the partygoers.

Read the transcript.

Oral argument in District of Columbia v. Wesby.

Sixteen of the arrested partygoers sued the officers and the District of Columbia for false arrest. The district court ruled in favor of the partygoers. The U.S. Court of Appeals for the D.C. Circuit affirmed and held both that the officers did not have probable cause for entry and were not entitled to immunity from liability. Probable cause to arrest for unlawful entry under D.C. law exists where a reasonable officer concludes from information known at the time that the arrestee knew or should have known that they entered the house against the will of the owner. The court reasoned that, because the partygoers believed in good faith that the owner had given Peaches permission for the party, they could not have intended to enter unlawfully. The court also ruled that the officers were not entitled to immunity because it was unreasonable for them to believe that they were not violating the partygoers’ clearly established Fourth Amendment rights against false arrest.

Questions Presented

  1. Do officers have probable cause to arrest for unlawful entry under D.C. law despite a claim of good-faith entry?
  2. Was the law sufficiently clearly established to justify the denial of immunity to the officers?

Odds are that the Supreme Court will answer both questions in the negative. This means the plaintiffs will lose, even though the Court believes their rights were violated. On the upside for the plaintiffs, they may be less likely to be arrested at their next party in DC, since the law will then (hopefully) be clearly established.

Want to learn more? Check out: Baude, William, Is Qualified Immunity Unlawful? (September 23, 2017). 106 California Law Review, 2018, Forthcoming; U of Chicago, Public Law Working Paper No. 610. https://ssrn.com/abstract=2896508