stating that "it is possible for a jury to find that, although the actual circumstances of the search did not justify the officer's behavior, the circumstances that appeared to the officer would have justified a search," and thus the officer was shielded from liability by qualified immunity
How later courts described this case
- stating that "it is possible for a jury to find that, although the actual circumstances of the search did not justify the officer's behavior, the circumstances that appeared to the officer would have justified a search," and thus the officer was shielded from liability by qualified immunity
- holding that an officer who did not enter an apartment, but stood at the door, armed with his gun, while other officers conducted the search, was nevertheless a “full, active participant” in the search and thus “liable for their integral participation in the violation”
- holding officer who went to the door with other officers and stood armed at the door while the other officers performed unconstitutional search, with knowledge of plan to enter and search apartments without warrant or probable cause, was not a bystander
- holding that an officer who was a “full, active participant in the [unconstitutional] search, not a mere bystander,” was liable for Fourth Amendment violation
Written by the judges who cited it.
The opinion
PATRICK E. HIGGINBOTHAM, Circuit Judge,
concurring:
I join Judge Goldberg’s fine opinion for the court. I add this writing only to clarify my understanding of the qualified immunity doctrine that we apply today. Qualified immunity shields government officials from “civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.... [Wjhether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective reasonableness’ of the action ... assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034, 3038 , 97 L.Ed.2d 523 (1987). A legal right is “clearly established” for purposes of this test only if the “contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 3038.
When, as in this case, a § 1983 claim based upon an allegedly unconstitutional search goes to the jury, the qualified immu *1188 nity question remains distinct from the constitutional question of probable cause. This distinction manifests itself in two respects. First, it is possible for the jury to find that, although the actual circumstances of the search did not justify the officer’s behavior, the circumstances that appeared to the officer would have justified a search. That is, the officer could make a constitutionally reasonable judgment based upon a factual misperception. Secondly, the jury could find facts which justify a conclusion that the Constitution has been violated, because the police officers lacked probable cause, without justifying a conclusion that an objectively reasonable officer would have understood that probable cause was absent.
In practice, these distinctions may on occasion be of little import at the appellate stage because of the just deference which reviewing courts owe to a jury’s unexplained verdict. When, as in this case, the jury must choose between divergent accounts of the relevant facts, a single choice may resolve both the immunity and the constitutional issues. The jury might give so much credit to the defendant’s account as to find no constitutional offense, or so little credit as to find both that a right was violated and that immunity was lost. Moreover, a reviewing court may be unable to determine whether the jury interpreted ambiguities in the evidence so unfavorably to the defendants as to make any constitutional violation unreasonable, or whether the jury’s interpretation recognized only a reasonable mistake in an area where legal rules were not “clearly established.” Only in this very limited sense can the two aspects of the Harlow test be said, in the language of the majority, to “collapse” in probable cause cases that go to the jury. 1
Such a collapse is neither desirable nor inevitable. The trial judge may guard against the possibility of such a collapse both through appropriate jury instructions, as the majority proposes, and also by submitting specific interrogatories pursuant to Fed.R.Civ.P. 49. By directing the jury to return distinct answers to questions about illegal conduct and officer immunity, the court can focus the jury’s attention on the factual disputes peculiar to each issue.
Even when the jury returns a general verdict, that in no way permits a reviewing court to ignore either of the distinctions developed above. In some cases, the evidence might suffice to support a jury verdict that, under the actual circumstances of the case, an officer’s acts were unconstitutional, without sufficing to support a jury determination that the circumstances, as they appeared to the officer at the time, were such as to make the officer’s acts unconstitutional. In other eases, it might be possible for the jury to resolve factual ambiguities so as to conclude that a constitutional violation took place, even though it is not possible for the jury to resolve factual ambiguities so as to conclude that the violation was the product of an objectively unreasonable mistake. For example, although in this case the evidence of drunkenness and irrational behavior permitted the jury to conclude that the officers acted recklessly and disregarded the rights of the plaintiffs, such a conclusion will not be possible in every § 1983 case.
Believing that all of these considerations are consistent with the views expressed by Judge Goldberg for the court, I concur in his opinion.
. At 1183-84, supra.