E-Newsletter Edition: April 25, 2007

Always note that state law may be more restrictive on police power than the U.S. Constitution.

As a Peace officer employed with an agency that does not give first apperance hearings within the 48/72 hour window to persons arrested and placed into the city jail, would this fall back on the arresting officer or the city?


The United States Supreme Court case of Gernstein v. Pugh, 420 U.S. 103 (1975) held that the Fourth Amendment to the U.S. Constitution requires a “prompt” judicial determination of probable cause for an extended pretrial detention following a warrantless arrest. The U.S. Supreme Court defined “prompt” in the case of Riverside (County) v. McLaughlin, 500 U.S. 44 (1991). In this case, the Supreme Court held that arrestees must be given a hearing to determine probable cause within 48 hours of their warrantless arrest in order to comply with the “promptness” requirement in Gernstein. An agency that provides for this hearing will be immune from systematic challenges. Therefore, we see that, as interpreted by the U.S. Supreme Court, the Fourth Amendment to the U.S. Constitution requires a judicial determination of probable cause for warrantless arrests within 48 hours.

When considering liability for constitutional violations, we look at Monell v. Department of Social Services, 436 U.S. 658 (1978). In this case, the U.S. Supreme Court held that an agency may be liable for the unconstitutional conduct of their employees only when some policy, custom or practice instituted by the law enforcement agencies final policy maker has led to the constitutional violation. Therefore, if an agency or city has policy that violates the Fourth Amendments “promptness” requirement regarding a judicial determination of probable cause for warrantless arrests, then the agency and city may be liable.

When examining liability of the agencies employees, qualified immunity is an issue to consider. Typically, to determine whether an officer is entitled to qualified immunity, the following two questions must be answered: (1) was there a constitutional violation and, if so, then (2) was the constitutional right that was violated clearly established by case law. In the question presented, if the city/agency is not complying with the rule in McLaughlin, a clearly established constitutional right would be violated. This could prevent qualified immunity and leave employees subject to liability. It would be expected that, for an employee to shoulder liability in an example such as the one presented in this question, the employee would have to have the ability to control when a defendant is given his judicial probable cause determination or the employee would have to be in a policy making position that effects the violation.

Lastly, it is important to note that states can have statutes regarding the timeliness of these probable cause determinations, who is responsible to ensure the defendant is given the probable cause determination, and the remedy, under state law, for violations of the statutes. Therefore, state law is important and should also be considered. However, the minimum standard for warrantless arrests, would be the 48 hour requirement from McLaughlin.

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