United States Supreme Court Changes Qualified Immunity Rules for Civil Rights Lawsuits Brought Against Law Enforcement Officers.
On January 21st, 2009 the United States Supreme Court reached a unanimous decision in Pearson v. Callahan, a case involving a lawsuit by a drug-dealer who had sued law enforcement officers for violating his Fourth Amendment rights after they made a warrantless entry of his home. The Court described the facts of the warrantless entry as follows:
The Central Utah Narcotics Task Force is charged with investigating illegal drug use and sales. In 2002, Brian Bartholomew, who became an informant for the task force after having been charged with the unlawful possession of methamphetamine, informed Officer Jeffrey Whatcott that respondent Afton Callahan had arranged to sell Bartholomew methamphetamine later that day.
That evening, Bartholomew arrived at [Callahan’s] residence at about 8 p.m. Once there, Bartholomew went inside and confirmed that respondent had methamphetamine available for sale. Bartholomew then told [Callahan] that he needed to obtain money to make his purchase and left.
Bartholomew met with members of the task force at about 9 p.m. and told them that he would be able to buy a gram of methamphetamine for $100. After concluding that Bartholomew was capable of completing the planned purchase, the officers searched him, determined that he had no controlled substances on his person, gave him a marked $100 bill and a concealed electronic transmitter to monitor his conversations, and agreed on a signal that he would give after completing the purchase.
The officers drove Bartholomew to [Callahan’s] trailer home, and [Callahan’s] daughter let him inside. [Callahan] then retrieved a large bag containing methamphetamine from his freezer and sold Bartholomew a gram of methamphetamine, which he put into a small plastic bag. Bartholomew gave the arrest signal to the officers who were monitoring the conversation, and they entered the trailer through a porch door. In the enclosed porch, the officers encountered Bartholomew, [Callahan], and two other persons, and they saw [Callahan] drop a plastic bag, which they later determined contained methamphetamine. The officers then conducted a protective sweep of the premises. In addition to the large bag of methamphetamine, the officers recovered the marked bill from respondent and a small bag containing methamphetamine from Bartholomew, and they found drug syringes in the residence. As a result, [Callahan] was charged with the unlawful possession and distribution of methamphetamine.
The case wound its way through the criminal courts in Utah where it was finally concluded that officers would not be justified in making an entry based upon the fact that a confidential informant was in the house already and had made a drug purchase. As a result of the suppression of the evidence, the charges against Callahan were dismissed. Callahan then filed a lawsuit against the officers alleging a violation of his civil rights under the Fourth Amendment to the United States Constitution. Specifically, he alleged that the entry into his home violated his rights.
The Court was faced with three questions in this case:
- Does a court have to decide if there is a constitutional violation before deciding whether the law was clearly established or may they decide the law is not clearly established and dismiss the officers from the lawsuit on qualified immunity without ever deciding whether their actions were unconstitutional?
- If it is unconstitutional for the officers to make an entry based on the consent once removed doctrine, was the law clearly established at the time such that an officer would know that entering the home was unconstitutional?
- Does a person who gives consent to a confidential informant to enter their home, thereby give consent (once removed) to the police officers who are signaled by the confidential informant?
In deciding the case, the Court answered the first two questions but not the third. In doing so, the Court changed the Constitutional requirements on the way that lower courts decide on qualified immunity.
Qualified immunity is a legal mechanism that protects law enforcement officers in lawsuits. In the simplest of terms, qualified immunity protects an officer from liability in cases where the law has not been clearly decided by the courts on the particular conduct the officer has undertaken such that the officer would not know that the conduct was unconstitutional.
In a prior case, Saucier v. Katz,i the United States Supreme Court had mandated that when a lower court determines whether an officer would be entitled to qualified immunity, they must first decide whether or not the officer’s conduct violated the Constitution. If the conduct did not violate the Constitution, the officer would be granted summary judgment and the case would be dismissed. If instead, the court concluded that the officer’s conduct violated the Constitution, then the court would proceed to the second question, which would determine whether or not the law was clearly established, such that the officer would have known that his conduct violated the Constitution at the time the officer acted. If the law was not clearly established the officer would be entitled to qualified immunity and the officer would be dismissed from the lawsuit. Applying this principle in this case, the United States Court of Appeals for the Tenth Circuit had concluded under the first question that the officers’ entry into the home based upon the consent given to the confidential informant violated the Constitution. The Tenth Circuit then turned to the second question and determined that the law was clearly established on warrantless entries into homes and thus, the officers were not immune from the lawsuit based on qualified immunity.
In overturning the United States Court of Appeals for the Tenth Circuit, the United States Supreme Court re-visited the Saucierii decision and concluded that the lower federal courts are not mandated to apply the two-step test mandated by Saucier. The Court concluded that application of the first question, whether or not the conduct was unconstitutional, is discretionary. The Court decided that the lower courts have the discretion to proceed directly to the second question, was the law clearly established at the time of the conduct such that an officer would be on notice that the conduct was unconstitutional, without ever deciding the underlying constitutional question.
The Supreme Court then applied this newly announced analysis to the facts presented by this case.
Turning to the conduct of the officers here, we hold that [the officers] are entitled to qualified immunity because the entry did not violate clearly established law. An officer conducting a search is entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment. This inquiry turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken. Qualified immunity operates to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful. When the entry at issue here occurred in 2002, the “consent-once-removed” doctrine had gained acceptance in the lower courts. This doctrine had been considered by three Federal Courts of Appeals and two State Supreme Courts starting in the early 1980’s.iii It had been accepted by every one of those courts. Moreover, the Seventh Circuit had approved the doctrine’s application to cases involving consensual entries by private citizens acting as confidential informants.ivThe Sixth Circuit reached the same conclusion after the events that gave rise to respondent’s suit,v and prior to the Tenth Circuit’s decision in the present case, no court of appeals had issued a contrary decision.
The officers here were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on “consent-once-removed” entries. The principles of qualified immunity shield an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law. Police officers are entitled to rely on existing lower court cases without facing personal liability for their actions. In Wilson,vi we explained that a Circuit split on the relevant issue had developed after the events that gave rise to suit and concluded that “[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.” Likewise, here, where the divergence of views on the consent-once removed doctrine was created by the decision of the Court of Appeals in this case, it is improper to subject petitioners to money damages for their conduct.
Because the unlawfulness of the officers’ conduct in this case was not clearly established, petitioners are entitled to qualified immunity. We therefore reverse the judgment of the Court of Appeals.
Thus, the Court held that lower courts can proceed directly to the question of whether the law was clearly established without deciding whether the underlying conduct was constitutional or unconstitutional. The Court then proceeded directly to the second question and determined that at the time these officers conducted their warrantless entry, the law with respect to the concept of “consent once removed” was not clearly established and therefore the officers in this lawsuit were entitled to be dismissed from the suit on qualified immunity grounds.
Author’s note: As a result of going forward on this one-step qualified immunity analysis, there is no clear decision as to whether “consent once removed” is constitutional or not. In those circuits cited by the Court as approving this concept, it is constitutional. In the 10th Circuit, the United States Court of Appeals has concluded it is unconstitutional. Thus, without a United States Supreme Court decision on the underlying conduct, officers who operate outside of the jurisdiction of Circuits with clear decisions remain without notice with respect to whether using “consent once removed” runs afoul of the Constitution.
Jack Ryan, J.D., Public Agency Training Council, Legal & Liability Risk Management Institute 1/21/2009
CITATIONS:
i Saucier v. Katz, 533 U.S. 194 (2001).
ii Id.
iii See, e.g., United States v. Diaz, 814 F. 2d 454, 459 (CA7), cert. denied, 484
U. S. 857 (1987); United States v. Bramble, 103 F. 3d 1475 (CA9 1996); United States v. Pollard, 215 F. 3d 643, 648– 649 (CA6), cert. denied, 531 U. S. 999 (2000); State v. Henry, 133 N. J. 104, 627 A. 2d 125 (1993); State v. Johnston, 184 Wis. 2d 794, 518 N. W. 2d 759 (1994).
iv See United States v. Paul, 808 F. 2d, 645, 648 (1986).
v See United States v. Yoon, 398 F. 3d 802, 806–808, cert. denied, 546 U. S. 977 (2005).
vi Wilson v. Layne, 526 U.S. 603 (1999).
