# Amicus Curiae Brief — Anderson v. Creighton

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0097%3A8

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 483 U.S. 635

## Text

No. 85-1520 Supreme Court, U.S.

ED

Supreme Court of the United

OCTOBER TERM, 1986

| OCT 14 1986

F. SPANIOL, JR,
CLERK

RUSSELL ANDERSON,

Petitioner,

ROBERT E. CREIGHTON, JR., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF AMICUS CURIAE
AMERICAN CIVIL LIBERTIES UNION
IN SUPPORT OF RESPONDENTS

MICHAEL AVERY
Avery & Friedman
6 Beacon Street
Boston, MA 02108
(617) 367-2626

SETH KREIMER

University of Pennsylvania

Law School
3400 Chestnut Street
Philadelphia, PA 19104
(215) 898-7447

DAVID RUDOVSKY*
Kairys & Rudovsky
1425 Walnut Street
Philadelphia, PA 19102
(215) 438-4541
*Counsel of Record

JACK D. NOVIK
American Civil Liberties
Union Foundation
132 West 43rd Street
New York, NY 10036

(212) 944-9800

TABLE OF CONTENTS

Interest of Amicus. .....
Statement of the Case. .....

Summary of Argument. .......

Argument:

Because The Law Under The Fourth
Amendment Requiring Both Probable
Cause And Exigent Circumstances

Was Clearly Established, Petitioner
Has No Entitlement To A Qualified
Immunity Defense

A. Harlow v. Fitzgerald established
an objective legal test to de-
termine qualified immunity.

B. The governing legal standard
was clearly established.

C. The doctrines of probable cause
and exigent circumstances, based
as they are on settled standards
governing how a reasonable officer
should act, are not subject to an
immunity defense where an officer
enters a home without @ warrant.

D. The test proposed by petitioner
would work a radical change in
the scope and nature of the immu-
nity defense.

E. The purposes of qualified immunity

would be undermined by petitioner's

new doctrine.
Comehwuegaem. «© «© «© te 6

Page

10

10

21

33

39
48

TABLE OF AUTHORITIES

Cases:
Beck v. Ohio, 379 U.S. 89
Blackburn v. Snow, 771 F.2d 556

Brinegar v. United States, 338
U.S. 160

Clark v. Beville, 730 F.2d 739

Coon v. Ledbetter, 780 F.2d
1158

Creamer v. Porter, 754 F.2d
1311

Davis v. Scherer, 468, U.S.
183 (1984)

Deary v. Three’ Un-Named Police
Officers, 746 F.2d 185

Director General of Railroads v.

Kastenbaum, 263 U.S. 25

Entick v. Carrington, 19 How.
St. Tr. 1030

Floyd v. Farrell, 765 F.2d 1

Harlow v. Fitzgerald, 457 U.S.
800

Henry v. United States, 36l,
U.S. 98

Hobson v. Wilson, 737 F.2d 1
Illinois v. Gates, 462 U.S. 213

Llaguno v. Mingey, 763 F.2d
1560

ii

Page
27,44
23

27
23

23
23
passim
23
31

32

45
passim

21
42
27

24

Cases:

Malley v. Briggs, 106 S. Ct.
1092

Mitchell v. Forsyth; 105 S.
Ct. 2806

Moore v. Marketplace,
Restaurant, Inc. 754 F.2d
1336

Payton v. New York, 445 U.S.
573 (1980)

Pennsylvania v. Mimms, 434
U.S. 106

Saldana v. Garza, 684 F.2d
1159

Slakan v. Porter, 737 F.2d
368

Steagald v. United States, 451
U.S. 204 (1981)

Tennessee v. Garner, 105 S.Ct.

1694
Terry v. Ohio, 392 U.S. 1
Texas v. Brown, 460 U.S. 730
Trejo v. Perez 693 F.2d 482

United States v. Brignoni -
Ponce, 422 U.S. 873

United States v. Leon, 468
U.S. 897

iii

Page
29,31

passim

25
14
40
45
23
14

33
40
19,37
23

38

43

TABLE OF AUTHORITIES

Cases: Page
‘United States v. Perez, 700

F.2d 1232 17
United States v. Selberg,

630 F.2d 1292 18
Welsh v. Wisconsin, 466 U.S.

740 (1984) 16

Constitution and Statutes:
U.S. Const. Amend IV passim

Miscellaneous:
Newman, Suing the Law-
breakers; Proposals To
Strengthen The Section
1983 Damage Remedy, 87

Yale L.J. 447 (1978) 26
Restatement (Second) of
Torts, §121 Comment i 32

iv

INTEREST OF THE AMICUS CURIAE!

The American Civil Liberties Union
("ACLU") is a nationwide, non-partisan
Organization which has over 250,000
members. Since its founding in 1920,
ACLU has been concerned with the
protection of fundamental rights and
individual liberties that are guaranteed
by the Constitution of the United
States.

1. The parties have consented to
the filing of the brief, and their
letters of consent have been filed
with the Clerk of the Court under
Rule 36.2 of the Rules of this Court.

STATEMENT OF THE CASE2
This case arises from a warrantless

search of respondents' home by
petitioner, an FBI agent, and several
state police officers. These officers
were searching for one Vadaain David
Dixon, a suspect in a bank robbery that
had occurred over five hours before the
search at issue.

Ve In searching for the suspect,
petitioner first searched the homes of
Iris Dixon (the suspect's mother) and
Minnie Dixon (his grandmother) before
going to respondent's home, where they
arrived at 8:40 p.m. Respondent Robert
Creighton requested to see a search
warrant, but was told by a Sergeant De
Noma, petitioner's colleague in the
search, "we don't have a search warrant.

I don't need a search warrant; you watch

2. Amicus adopts the statement of
Respondents. We highlight here the
critical facts on the issue presented.

too much T.V." J.A. 44. A warrantless
search ensued. Respondent Sarisse
Creighton stated that when she asked for
a warrant, petitioner stated, "I don't
need a search warrant when I'm looking
for a fugitive." J.A. 50.

Y On the issue of exigent
circumstances, the record makes clear
that petitioner did not even consider
whether he needed a warrant to enter,
and if so, under what circumstance he
would be justified in entering without
one. See Affidavits of Robert and
Sarisse Creighton, supra.

The record shows that there was no
immediate or continuous pursuit of the
suspect. Similarly, there is no
assertion by petitioner that he had an
actual or reasonable belief that
evidence would be destroyed, or that the
suspect would escape if the officers
sought a warrant. J.A. 16-23.

Je With regard to the facts
relating to whether there was probable

cause to believe that Vadaain Dixon
would be at respondent's home, the
record shows the following:

Petitioner claims he had information
that Dixon's wife lived with respondent
up to November 9th (the robbery occurred
November 11th), J.A. 21, but the source
of his information, Probation Officer
William Johnson, contradicts him,
stating that the latest information he
had was November ist. J.A. 39, 41-42.
Further, petitioner represented that
"Vadaain Dixon has stayed on a daily
basis at the house of (respondent's)
with Cheryl Ann Donlin Dixon (his wife)
during his four-hour daily furloughs
from the Volunteers of America residence
from October 13 to approximately
November 9, 1983," J.A. 21. But
Probation Officer Johnson said only that
"Cheryl Dixon was picking Vadaain Dixon
up on a daily basis at the Volunteers of

America so that Vadaain Dixon and Cheryl

Dixon could spend his daily furloughs

together." J.A. 39 (emphasis added).
No basis is provided for petitioner's
assertion that the suspect spent time,
every day, at respondent's house.

The information relating to the
getaway car did not match respondent's
automobile. The getaway car was
described as two-tone burgundy or maroon
and silver (or possibly a darker color),
and possibly a Buick. Petitioner
determined that respondent's car was a
solid, single color, burgundy or maroon
Oldsmobile.

4. The trial court granted summary
judgement before any discovery was
allowed on the facts relating to
probable cause and exigent
circumstances.

SUMMARY OF ARGUMENT
In Harlow v. Fitzgerald, 457 U.S.
800 (1982), this Court established an
objective test to determine if an
official was entitled to qualified
immunity. If the plaintiff alleges
facts that demonstrate a constitutional

violation, the court is to determine, at
the summary judgment stage prior to full
discovery, whether the alleged conduct
violated clearly established law of
which a reasonable person would have
known. Whether there has in fact been a
constitutional violation is reserved for
the trial itself if no immunity is
found.

Petitioner's claim that an official
is entitled to immunity where he "could
reasonably have believed that his
warrantless entry .. . was justified,"
Brief, at 30, would work a radical
change in the governing Harlow standard.
It would turn an “objective” and "purely
legal test", Mitchell v. Forsyth, 105 S.
Ct. 2806, 2816, n.9 (1985) into a

subjective, fact-bound determination.
Further, it would (1) defeat Harlow's

decided preference for efficient and
early resolution of the immunity issue;
(2) confuse the distinct legal immunity
and factual violation of law inquiries;
and (3) effectively immunize police
misconduct, particularly in the Fourth
Amendment area.

Petitioner also appears to claim
that unless the particular conduct of
which an official has been accused has
previously been held illegal, then he
acted reasonably and thus is entitled to
immunity. This argument simply ignores
reality. Fourth Amendment cases arise
in an almost infinite variety of factual
situations. Under petitioner's
standard, almost every official could
claim that he did not know that the law
applied to his particular conduct no
matter how clear the law. It is
illogical to argue that where an officer

has acted unreasonably, that is, without
probable cause and exigent
circumstances, he can claim that his
conduct was reasonable. Moreover,
petitioner suggests a vagueness in
Fourth Amendment principles where none
exists.

This case demonstrates the fallacy
of petitioner's position. Not only is
che law of warrantless arrests in the
home, of exigent circumstances, and of
probable cause quite clear, but it
provides quite explicit standards of
conduct. On the facts as alleged by
respondent there is no question that the
officer violated these clearly
established legal standards, of which he
reasonably should have been aware.
Whether petitioner in fact aad probable
cause and whether there were exigent
circumstances is a question for a jury
after a trial.

In Harlow, this Court struck a

ree)

delicate balance that fully protects the
officer, yet allows redress for
misconduct. On summary judgment, the
officer has immunity if the law was not
clearly established, and at trial he has
a defense if the facts show that he
acted reasonably under the
circumstances, i.e., the probable cause
and exigent circumstances standards have
been met. Petitioner's new approach,
which would wreck the balance struck in
Harlow, must be rejected.

ARGUMENT

BECAUSE THE LAW UNDER THE FOURTH
AMENDMENT REQUIRING BOTH PROBABLE CAUSE
AND EXIGENT CIRCUMSTANCES PRIOR TO A
WARRANTLESS ENTRY INTO A HOME WAS
CLEARLY ESTABLISHED, PETITIONER HAS NO
ENTITLEMENT TO A QUALIFIED IMMUNITY
DEFENSE.

A. Harlow v. Fitzgerald Established An
Objective Legal Test To Determine
Qualified Immunity.

In Harlow v. Fitzgerald, supra, this

Court redefined the doctrine of
qualified immunity and announced a
fundamental change in its scope and
application. To allow for pretrial
adjudication of the issue, the Court
discarded the subjective element of good
faith and focused instead on the state
of the law at the time of the alleged
constitutional violation.

We therefore hold that
government officials
performing discretionary
functions generally are
shielded from liability
for civil damages insofar
as their conduct does not
violate clearly
established statutory or
constitutional rights of
which a reasonable person

10

clearly established.

would have known...

Reliance on the objective
reasonableness of an
official's conduct, as
measured by reference to
clearly established law
should avoid excessive
disruption of government
and permit the resolution
of many insubstantial
claims on summary judgment
Tos ae Until this
threshold immunity
question is resolved,
discovery should not be
allowed. If the law was
clearly established, the
immunity defense
ordinarily should fail,
since a reasonably
competent public official
should know the law
governing his conduct.

at 818-819. Harlow created an

objective test for determining whether

the applicable legal standard was

beliefs of the official involved --
whether malicious or in good faith--

are now irrelevant to the issue of

11

The subjective

immunity. 3 Once a court determines that
a legal standard governing the govern-
mental action at issue was clearly
established, there is no qualified
immunity. The factual question whether
the officer's conduct violated the
established constitutional standard is
resolved at trial.

The Court's emphasis on the
"objective reasonableness" of an

official's conduct "as measured by
reference to clearly establish law,"
Harlow, supra, at 818, was followed in
Davis v. Scherer, 468 U.S. 183 (1984)
and Mitchell v. Forsyth, 105 S. Ct. 2806
(1985). Davis leaves no doubt about the
impact of Harlow upon the qualified

3, The intent, subjective belief
and reasonableness of the official may,
however, be quite relevant to whether a
constitutional violation occurred,but
this is an inquiry independent of
immunity.

immunity defense. The Court made it
clear that the “totality of the
circumstances" test of previous cases,

which mandated inquiry into both the
objective reasonableness of the
defendant's conduct and the subjective
state of mind, has been replaced by
Harlow's formulation. The Court noted
that Harlow had "rejected the inquiry
into state of mind in favor of a wholly
objective standard." Davis, supra, at

191.
In Mitchell v. Forsyth, supra, the

Court ruled that warrantless national
security electronic surveillance
conducted two years before such conduct
was first held to be unconstitutional
(and where the Court had expressly
reserved decision on the question) was
not actionable in light of the plainly
unsettled nature of the governing
principles. In analyzing the nature of

a trial court's decision on a summary

13

judgment motion seeking qualified
immunity, the Court held:

All it need determine is a
guestion of law: whether
the legal norms allegedly
violated by the defendant
were clearly established

at the time of the
challenged actions. Id.
at 2816 (emphasis added).

B. The Governing Legal Standards Were
Clearly Established.

Ve The Law Was Clear That, Absent
Probable Cause And Exigent
Circumstances, A Warrantless
Arrest In The Home Violates The
Fourth Amendment.

In Payton v. New York, 445 U.S. 573
(1980) thisgCourt resolved a long-

standing Fourth Amendment issue by
requiring police officers to obtain a
warrant before effectuating an arrest of
a felony suspect inside that person's
house. Steagald v. United States, 451
U.S. 204 (1981) extended the Payton
principle to searches of homes of third

parties, requiring a search warrant

14

prior to entry of these premises. In a
search for felony suspects, the Court
ruled that an arrest warrant

did absolutely nothing to
protect petitioner's
privacy interest in being
free from an unreasonable
invasion and search of his
home. Instead, peti-
tioner's only protection
from an illegal entry and
search was the agent's
personal determination of
probable cause. In the
absence of exigent
circumstances, we have
consistently held that
such judicially untested
determinations are not
reliable enough to justify
an _ entry into a person's
home to arrest him without
a warrant, or a search of
a_home for objects in the
absence of a search
warrant.
Id. at 212-214.

Be The Grounds For Claiming
Exigent Circumstances Were Well
Established,

The important privacy interests

15

protected by the warrant requirement
are not to be lightly subordinated to
claims of exigent circumstances. In
Welsh v. Wisconsin, 466 U.S. 740 (1984),
the Court reiterated the "few. . . and

carefully delineated" exceptions to the

warrant requirement and emphasized that
"the police bear a heavy burden when
attempting to demonstrate an urgent need
that might justify warrantless searches
or arrests." Id. at 749-50. Indeed,
such a search is per se unreasonable,
unless exigent circumstances are shown.

[TjJhe Court decided in
Payton v. New York, supra,
that warrantless felony
arrests in the home are
prohibited by the Fourth
Amendment, absent probable
cause and exigent
circumstances.

[T]he Court has recognized
only a few such emergency
conditions, see, e@.g.,
United States v. Santana,
427 U.S. 38, 42-43 (1976)

16

(hot pursuit of a fleeing

felon); Warden v. Hayden,
387 U.S. 294 (1967)
(same); Schmerber v.
California, 384 U.S. 757,
ie i (19 66 )
(destruction of evidence);
Michigan v. Tyler, 436
U.S. 499, 509 (1976)
(ongoing fire), and has
actually applied only the
*hot pursuit" doctrine to
arrests in the home, see
Santana, supra.

466 U.S. at 749-750.4
The Eighth Circuit had also clearly
delineated the limited situations in

which the exigent circumstances
exception would apply. See, United
States v. Perez, 700 F.2d 1232, 1237

4. Moreover, Welsh indicates the
general agreement among the
Justices of the limited grounds
for claiming exigent circumstances (a
clearly demonstrated need to prevent
escape, injury to others or destruction
of evidence) that would in fact be
frustrated by resort to the warrant
process. Welsh, supra, at 749-750; Id.
at 759. (White, J., dissenting).

17

(8th Cir. 1983), cert. denied,104S.ct. 3587
(1984); United States v. Selberg, 630
F.2d 1292, 1295-96 (8th Cir. 1980).
Under this standard, petitioner has
to demonstrate at trial that he had
reason to believe that the suspect would

destroy evidence, injure others, or
escape. Surely no such showing has been
made pre-trial. There is no evidence of
hot pursuit, no reason to believe that
the suspect would injure his own family
members, and there is no basis for
believing that any evidence would be
destroyed. And given the critical fact
that a warrant could be secured by a
quick phone call, see Fed. R. Crim. P.
41(c), any pre-trial claim to exigent
circumstances on this record is simply
untenable.

Be The Test For Determining
Probable Cause Was Well
Established.

Both the concept and application of

18

the probable cause requirement are well
settled. In Texas v. Brown, 460 U.S.
730, 742 (1983), this Court stated:

"As the Court frequently
has remarked, probable
cause is a flexible,
common-sense standard. It
merely requires that the
facts available to the
officer would ‘warrant a
man of reasonable caution
in the belief,' Carroll v.
United States, 267 U.S.
132, 162 (1925), that
certain items may be
contraband or stolen
property or useful as
evidence of a crime; it
does not demand any
showing that such a belief
be correct or more likely
true than false. A
‘practical, nontechnical
probability that
incriminating evidence is
involved is all that is
required. Brinegar Vv.
United States, 338 U.S.
160, 176 (1949).

Thus, for example, if an officer

arrests a robbery suspect on the

strength of a mistaken identification,

19

probable cause exists for the arrest
even though the defendant is later found
innocent. Indeed, this type of mistake
is exactly the kind of reasonable error
that is incorporated in the probable
cause concept. No doctrine of "good
faith" or qualified immunity is
necessary to provide the police officer
with a defense, because he already has
one.

This case presents no difficulty in
determining whether the law was clearly
established. The constitutional
principle at issue -- that no search of
a third party's house for a suspect can
be conducted without a warrant unless
there is both probable cause to believe
that the suspect is present and exigent
circumstances excusing the absence of a
warrant -- is a precise subprinciple of
the Fourth Amendment, clearly
establishing the limit on governmental
authority in a particular area of police

work. No narrower principle is needed

20

to define the limits of police authority
and this Court has provided the
essential guidelines for tie probable
cause and exigent circumstances
determinations.

Thus, when plaintiffs allege facts
that, if true, would entitle them to
relief under clearly established legal
principles, the constitutionality of
police activity should be determined on
a fact-bound, case by case analysis
under which the officer will receive the
full benefits and protections of the
reasonableness standard that controls
probable cause and exigent circumstances
determinations. This standard "protects
both the officer and the citizen."
Henry v. United States, 361 U.S. 98, 102
(1959).

C. The Doctrines Of Probable Cause
And Exigent Circumstances,
Based As They Are On
Settled Standards Govern-
ing How A Reasonable

21

Officer Should Act, Are
Not Subject To An Immunity
Defense Where An Officer
Enters A Home Without A
Warrant.

Under Payton and Steagald petitioner

has the burden of demonstrating both
probable cause to believe that the
suspect would be found in respondent's
premises and that exigent circumstances
existed to justify the entry without a
warrant. These are factual inquiries
that are not amenable to resolution on
summary judgment under Harlow. Because
the standards governing these constitu-
tional issues are well settled, the
question is not what constitutional rule
applies; rather, it is whether a given
set of facts violates the standard
established by a known rule. Once the
trier of fact determines that an officer
acted without probable cause or exigent
circumstances, i.e., that he acted

unreasonably, the inquiry ends. A

defendant cannot then claim a qualified

22

immunity where, under a clearly
established constitutional principie, he
has by definition acted unreasonably and

in violation of the Constitution.

The Courts of Appeals have widely
recognized that probable cause is a
"clearly established" constitutional
standard and therefore acts undertaken
without probable cause are not subject
to a qualified immunity. See, e.g.,
Creamer v. Porter, 754 F.2d 1311 (5th
Cir. 1985); Deary v. Three Un-Names
Police Officers, 746 F.2d 185 (3d Cir.
1984); Clark v. Beville, 730 F.2d 739
(11th Cir. 1984); Trejo v. Perez, 693
F.2d 482 (5th Cir. 1982). See also
Slakan v. Porter, 737 F.2d 368 (4th Cir.
1984); Coon v. Ledbetter, 780 F.2d 1158
(5th Cir. 1986); Blackburn v. Snow, 771
F.2d 556 (1st Cir. 1985). Petitioner
ignores this logical and well-settled

application of Harlow to the fact-bound
probable cause question. He calls for a

23

new standard that would provide immunity
if an official "reasonably" should not
have known that his particular conduct
was unreasonable.

In Llaguno v. Mingey, 763 F.2d 1560
(7th Cir. 1985) (en banc), the Court
analyzed the problem as follows:

The good sense of Harlow
in withdrawing the issue

of immunity from the jury
is particularly evident in
a case such as this where
the police are charged
with having acted without
probable cause. The
question whether they had
probable cause depends on
what they reasonably
believed with reference to
the facts that confronted
them, as the judge
instructed in the passage
we quoted earlier. To go
on and instruct the jury
further that even if the
police acted without
probable cause they should
be exonerated if they
reasonably (though
erroneously) believed that

24

they were acting
reasonably is to confuse
the jury and give the
defendants two bites at
the apple.

Id. at 1569 (emphasis added).

In Moore v. Marketplace Restaurant,
Inc., 754 F.2d 1336, 1358 (7th Cir.
1985), Judge Posner concurring, stated:

But what was perfectly
clear when these arrests
were made, as now, is that
an arrest is not proper
without probable cause.
So if there was no
robable cause, there was
no immunity; if there was
probable cause, then, as
just pointed out, there
was immunity. The issue
of immunity will thus be
resolved automatically by
the jury's resolution of
the issue of probable
cause;. . . (emphasis
added).

Judge Jon O. Newman has cogently

explained why no immunity should be
permitted where the officer has failed
to show probable cause:

™ 25

But however well-
intentioned this second
ingredient of the good
faith defense, it involves
nearly circular reasoning
that promotes confusion
and sometimes defeats
meritorious claims. For
example, the victim's
cause of action for an
arrest in violation of his
Fourth Amendment rights
requires an arrest without
probable cause. To make
out his case, the
plaintiff must establish
that a reasonably prudent
police officer, under all
the circumstances, would
not have had probable
cause to believe that he
had committed a crime.
Then, under Bivens, the
officer still has a
defense if acted in good
faith and has a reasonable
belief in the validity of
his action, that is, if he
reasonably believed that
he did have probable
cause. But if the
plaintiff's own case
requires him to show an
arrest that was not
reasonably based on

26

probable cause, what does
the defense mean? Surely
the officer could not
reasonably believe that
there was probable cause
for an unlawful arrest,
for an unlawful arrest is
by definition an arrest
for which a prudent police
officer could not
reasonably believe there
was probable cause.

Newman, Suing The Lawbreakers: Proposals
to Strengthen the Section 1983 Damage
Ready, 87 Yale L.J. 447, 460 (1978).
This Court's cases defining probable
cause demonstrate the broad latitude
given police officers to search or
arrest. See, e.g., Brinegar v. United
States, 338 U.S. 160 (1949); Beck v.
Ohio, 379 U.S. 89 (1964); Illinois v.
Gates, 462 U.S. 213 (1983). If an
officer acts upon information which is

insufficient to meet this not very
demanding test, it is untenable for
petitioner to claim that the officer is
entitled to immunity on a theory that

27

the law had not clearly established that
his particular conduct was illegal. If
an officer did not have a sufficient
basis to make a “practical, common-
sense" decision that a "fair
probability" of crime or evidence
existed, he cannot have acted in an
objectively reasonable manner.
Similarly, if he cannot show hot
pursuit, danger of destruction of
evidence, or danger to others, he cannot
reasonably claim that exigent
circumstances excuse the lack of a
warrant. As the Court below recognized,
further discovery is necessary since
this case presents sharp factual
disputes on exactly what information
petitioner relied. 766 F.2d at 1273-
75.°

2 Indeed, petitioner did not even
consider whether he needed a warrant
to enter, and if so, under what
circumstances he would be justified
in entering without one. Respondent
Robert Creighton submitted an
affidavit stating that a member of
the search party (which included
petitioner) told him in response to

28

Petitioner's reliance on Malley v.
Briggs, 106 S.Ct. 1092 (1986), is
misplaced. In Malley, the Court again

stressed the “objectively reasonable"
standard in determining qualified
immunity. In the context of a case in
which the officer did exactly what the
Fourth Amendment requires, submitting
the facts to a neutral magistrate for
determination of probable cause, the
Court recognized "where officers of
reasonable competence could disagree on
(the) issue," immunity would be granted.
Once the magistrate has acted, the

his request to see a warrant: "We
don't have a search warrant. I
don't need a search warrant; you
watch too much TV." J.A. 44.
Respondent Sarisse Creighton stated
that when she asked petitioner for a
search warrant he said "I don't need
a search warrant when I'm looking
for a fugitive." J.A. 50. Plainly,
petitioner ignored the teachings of
Payton and Steagald. It is,
therefore, facetious for him to
Claim that he acted "reasonably."

29

officer should receive immunity in close
cases. Here, by contrast, the officer

disregarded the warrant requirement.
There has been no independent evaluation
of probable cause and therefore the
Briggs rationale is inapplicable.

Indeed, the Court stressed the unique
nature of the «c2se as one involving
submission of facts to secure a warrant.
Id. at 1098, n.6. Just as Leon did not
decide good faith exception to the
exclusionary rule in the context of a

warrantless arrest, Briggs went no

further than a discussion of qualified
immunity in the context of that case.

If petitioner had c**ained a warrant,
but a court later found no probable
cause for its issuance, the immunity
issue would be presented in a signifi-
cantly different context. The exigent
circumstances issue would be moot and
there would be compliance with the
express mandate of the Fourth Amendment

30

-- submission of the decision to a
magistrate. Thus, in this case,
depending on whether a warrant was
sought, different standards must control
the immunity question.

The unprecedented nature of peti-
tioner's claim is further demonstrated
by the lack of any "common law counter-
part" to the immunity asserted. Malley
v. Briggs, supra, at 1095. At common-

law a determination that an officer
lacked probable cause in warrantless
action was sufficient to establish
liability. In Director General of Rail-
roads v. Kastenbaum, 263 U.S. 25, 27-28

(1923), the Court stated:

The gist of it is an
unlawful detention, and
that being shown the
burden is on the defendant
to establish probable
Cause for the arrest ..
But the standard applied
to defendant's conscious-
ness is external to it.
The question is not
whether he thought the

31

facts to constitute
probable cause, but
whether the court thinks
they did. Holmes on the
Common Law, 140. Probable
cause is a mixed question
of law and fact. The
court submits the evidence
of it to the jury, with
instructions as to what
facts will amount to
probable cause if proved
- « « But, as we have
seen, good faith is not
enough to constitute
probable cause. That
faith is not enough to
constitute probable cause.
That faith must be
grounded on facts within
the knowledge of the
(arresting officer),
which in the judgment of
the court would make his
faith reasonable.

See also Entick v. Carrington, 19 How.
St. Tr. 1030, 1066, 95 Eng. Rep. 807
(K.B. 1765); Restatement (Second) of
Torts, $121, Comment i:

A peace officer making an
arrest without a warrant
is protected in every case
where he acts under a
reasonable mistake as to

32

the existence of facts
which, urder the rule
stated in this Section,
justify an arrest without
a warrant. On the other
hand, no protection is
given to a peace officer
who, however, reasonably
acts under a mistake of
law other than a mistake
as to the validity of a
statute or ordinance.

There is, of course, nothing novel
about these long standing common law
principles, They are based on a well
settled standard of reasonableness that
allows for a wide latitude of official
discretion.

D. The Test Proposed by Petitioner
Would Work A Radical Change In
The Scope And Nature Of The
Immunity Defense.

The new immunity doctrine suggested by
petitioner would subsume virtually all
constitutional liability issues into a
new, highly subjective, and unprece-
dented test of immunity. Instead of the
Harlow standard, the new test would be
whether the official "could reasonably

33

ans

have believed that his (action) was
legally justified." Brief, at 30. Such
a transformation would bring this Court
full circle, back to the unsatisfactory
pre-Harlow law under which qualified
immur ity would depend upon the specific,
discrete facts of each case, requiring
full discovery and an inquiry into the
subjective mental state and motives of
defendants.

Davis v. Scherer, supra, deliberately
eliminated the "totality of the

circumstances" test in immunity adjudi-

cations in order to avoid precisely the
kind of fact-specific adjudication urged
by petitioner. If an immunity claim
depends upon whether an official should

have known whether his specific conduct

violated an established right (as
opposed to whether he should have been

aware of a constitutional right that
governs his alleged conduct), a court

must insist, of course, on knowing all

34

of the facts and circumstances under
which the defendant acted. It must also
consider whether conflicting facts
preclude a summary judgment motion.
Thus, a primary purpose of Harlow, early
adjudication of immunity, is defeated.
In many §1983 and Bivens cases the

actual conduct of the official is what

the entire case is about and can only be
resolved by a trial. A court simply
cannot make a fair determination of
whether the defendant's actions and
conduct were violative ("clearly" or
otherwise) of a constitutional standard
unless every relevant fact surrounding
that conduct is presented to the trier
of fact.

Consider, for example, a case alleging
a due process and Fourth Amendment
violation for the unlawful use of deadly
force. See Tennessee v. Garner, _ U.S.
_, 105 8. Ct. 1694 (1985). Under

Garner, the essential question is

whether the defendant had probable cause

to believe that the suspect posed a
significant threat of serious physical
harm to the officer or others. The
officer is required to show an "acticul-
able basis to think (the suspect) was
armed." Id. at 1706. Quite obviously,
the courts, including this Court, have
had few occasions to apply this now
clearly established principle. But
surely that does not mean that an
officer who in fact violates this clear
standard should be immune from liability
solely because the specific facts in his
case had not been previously litigated.
This standard itself provides the margin
for error needed to protect the officer
-- a reasonable belief in the threat
posed by the suspect. The immunity
sought by petitioner would eviscerate
the standard.

If this Court were to adopt peti-

tioner's suggested standard, it would

36

necessitate an inquiry into all of the
circumstances surrounding the officer's
actions, including the sunpjective issues
of intent, knowledge and motive. As a
threshold matter, it would be important
to know whether the officer -- who
claims to have acted reasonably, even
though in contravention of settled law
-- considered the applicable legal
principles. It would subvert the
immunity doctrine to permit an officer,
such as petitioner, whose conduct
indicates ignorance or willful disregard
of controlling cases in this Court, to
assert that he nevertheless had a
reasonable basis for believing his
conduct to be legal.

Furthermore, an examination of the
officer's training and experience would
be necessary. This Court has ruled that
the officer's experience is an integral
factor in determining reasonableness

under the Fourth Amendment, See Texas v.

37

Brown, 460 U.S. 730, 742-743 (1983);
United States v. Brignoni-Pounce, 422
U.S. 873 (1975).

Petitioner seeks to collapse the very

different tests for immunity and
liability, and to turn the legal
immunity issue into a fact-bound
determination, In Mitchell v. Forsyth,
Supra, at 2816, n.9, this Court

emphasized that the immunity issue "is a
purely legal one." Petitioner would
have the trial court resolve, pre-trial,
the decidedly factual issue of

reasonableness. See also Davis v.

Scherer, supra, at 195 (on immunity

claim, rejecting “inquiry into whether
official in the circumstances of his
decision should have appreciated the
applicability and importance of the
(regulation) at issue.").

This Court should not countenance a
double standard. On the qualified

immunity issue, plaintiffs are barred

from proving that an officer acted
"unreasonably" if the officer did not
violate clearly established federal laws
by, for example, failing to follow a
state regulation. See Davis, supra. By

the same token, the defendant should not
be permitted to attempt to show that he
acted "reasonably" when his alleged
conduct violated clearly established
law. The defense of reasonableness is
Clearly one for trial.

E. The Purposes of Qualified

Immunity Would Be Undermined By
Petitioner's New Doctrine.

Petitioner's policy arguments are

revealingly weak. First, to disallow a
defense of immunity in this kind of case
will aot hold a government official to a
"standard of perfection." Brief, at 29.
The standards under the Fourth Amendment
-- probable cause and reasonableness--
do not require anything close to perfec-
tion. Probable cause is defined by the

39

reasonableness of one's actions in light
of all the circumstances, thus providing
an ample margin of error. This doctrine
"protects both the officer and the
citizens." Henry v. United States,

supra, at 102. The more dangerous the
situation, the quicker an officer has to
make a judgment and act, and the greater
the risk of non-action, the more protec-
tion the officer has under the probable
cause and reasonableness standards.

See, e.g., Terry v. Ohio, 392 U.S. 1
(1968); Pennsylvania v. Mimms, 434 U.S.
106 (1977). Indeed, it is only when the
officer acts contrary to what a reason-

able officer would do that probable.
cause is found to be lacking.

In this case it is particularly ironic
that petitioner complains of a supposed
“standard of perfection" when the record
shows he did not even consider the
constitutional consequences of his
actions. J.A. 43-45; 46-52 (demon-

strating that petitioner believed

40

a warrant is not required when searching
for a fugitive. Under these circum-
stances, petitioner's claim of reason-
ableness is highly suspect. ®

Petitioner makes the exaggerated claim
that without this new rule "(a)n
official could be subjected to monetary
liability even if the relevant legal
principle, and the case law applying
that principle, did not provide any

6. Petitioner also seeks to equate
respect for constitutional procedures
and established rights with official
"timidity." Brief, at 23. But this
Court has made clear that where rights
are clearly established, the official
“should be made to hesitate." Harlow,
Supra, at 819. This is particuiarly
true where the choice is not one between
action and inaction, but rather, as
here, action without a warrant or action
sanctioned by a judicial officer. The
interests of effective law enforcement
-- and of the Constitution -- would have
been satisfied in this case if peti-
tioner had followed the constitutionally
mandated process.

41

indication that the official's conduct
was unlawful." Brief, at 25. But no
such result is possible under Harlow
since if the "relevant legal principle"
is not clearly established no liability
can result. Petitioner's argument rests
on the demonstrably false proposition
that a law can be "clearly established,"
but not provide “any indication" as to
how an official is to behave.

This case, in which clearly stated
standards of probable cause and exigent
circumstances provided petitioner with
more than sufficient guidelines for
proper conduct, reveal the fallacy of
petitioner's position. In Hobson v.
Wilson, 737 F.2d 1, 26 (D.C. Cir. 1984),
the court cautioned against the very

position advanced by petitioner, stating
that the right at issue cannot be
defined "so narrowly as to require that
there be no distinguishing facts between
the instant case and existing precedent
. « « (since this) would unquestionably

turn qualified into absolute immunity

42

requiring immunity in any new fact
situation."

There is the distinct danger that
petitioner's proposed test would in
effect both deny any remedy to persons
whose Fourth Amendment rights are
violated and directly reduce the sub-

stantive protections of the Fourth
Amendment. It would certainly be argued
by the Government that if *this standard
applies to the determination of civil
liability, it should also control

application of the exclusionary rule.
Compare United States v. Leon, 468 U.S.
897 (1984) with Malley v. Briggs, supra.
If it were so extended, the victim of

unconstitutional police actions in the
Fourth Amendment area would be without a
remedy wherever the officer cannot be
shown to have been on notice of an
authoritative decision on the facts of
his case. Since few of the myriad
police-citizen encounters are previewed,

fact by fact, in decisions of this Court

43

or the lower courts, such a rule would
eliminate remedies in a great number of
cases. And even if the Court were not
to so limit the exclusionary rule, the
result would hardly be more
satisfactory: those who were not
charged with any wrongdoing would be
denied their only remedy.

More fundamentally, petitioner's
standard would work a rewriting of
police activity under the Fourth
Amendment. Probable cause would no
longer be defined as the facts and
circumstances that would cause a
reasonably prudent police officer to
believe that the suspect had committed
or was committing a criminal act (or
that items would be found in a search).
Beck v. Ohio, 379 U.S. 89, 91 (1964).
Rather, even if the legal standard was

clearly established, the issue would be
whether the officer “reasonably could

have believed," Brief, at 30, that his
conduct would violate the plaintiff's

44

constitutional rights. In other words,
not only would the plaintiff have to
show a violation of a clearly
established right, he would also have to
show a violation so egregious as to
dispel any notion that the officer could
have believed his actions to be
justified. Unfortunately, some lower
courts have imposed this unjustified
standard. See Saldana v. Garza, 684
F.2d 1159 (5th Cir. 1982); Floyd v.
Farrell, 765 F.2d 1, 5 (ist Cir. 1985).
Adjudication of Fourth Amendment

issues would therefore no longer be
based on the clearly established
standard of probable cause. Since
rights are defined by court decisions,
the substantive standards of the Fourth
Amendment would be quite unknown, and
the controlling standards would reflect
the immunity rule rather than the
established concept of probable cause.

45

CONCLUSION

The judgment of the court below should
be affirmed.

Respectfully submitted,

David Rudovsky, Esq.
Kairys & Rudovsky

1425 Walnut Street
Philadelphia, PA 19102
215/438-4541

Attorney of Record

Michael Avery, Esq.
Avery & Friedman
Six Beacon Street
Boston, MA 02108
617/367-2626

Seth Kreimer, Esq.

Law School

University of Pennsylvania
3400 Chestnut Street
Philadelphia, PA 19104
215/898-7447

Jack D. Novik, Esq.
A.C.L.U.F.

132 West 43rd Street
New York, NY 10036
212/944-9800

46

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0097%3A8. Public record. Not legal advice.